Intellectual Property Expert Elizabeth Rowe To Join Faculty

Elizabeth A. Rowe, an internationally renowned expert in intellectual property and trade secrets, will join the University of Virginia School of Law faculty in the fall.

Currently the Irving Cypen Professor of Law and a Distinguished Teaching Scholar at the University of Florida, Rowe teaches and writes about trade secrets, trademark law, patent law and corporate espionage. She is the co-author of the first and leading U.S. casebook on trade secrets, in addition to a “Nutshell” treatise on trade secrets. Rowe directs the University of Florida’s Program in Intellectual Property Law.

Rowe came to academia after serving as a partner at the law firm Hale and Dorr (now WilmerHale) in Boston, where she developed extensive experience in intellectual property and other complex commercial litigation matters. At the time, she was profiled by Massachusetts Lawyers Weekly as one of the top five up-and-coming attorneys in the state.

“We are so lucky to welcome Elizabeth Rowe to our faculty,” Dean Risa Goluboff said. “She is the authority on trade secret law, and her cutting-edge scholarship on intellectual property has had a tremendous impact on the field. I have no doubt that Elizabeth’s extensive and impressive practice experience, as well as her scholarly accomplishments and award-winning teaching, will greatly benefit the Law School.”

Rowe is a member of the American Law Institute and a member of the Leadership Council for The Sedona Conference, which conducts in-depth study in the areas of antitrust, complex litigation and intellectual property rights to provide nonpartisan consensus-based guidance to courts and attorneys. She also is a fellow of the American Bar Foundation. Rowe earned her J.D. from Harvard Law School, and an M.A. in sociology and B.A. in criminal justice from the University of Florida.

As a law professor at Florida, she has received the Research Promotion Initiative Award and the the Jack Wessel Research Excellence Award, and was selected to join the university’s Academy of Distinguished Teaching Scholars because of her exceptional accomplishments in both scholarship and teaching.

Four of Rowe’s articles have been named by Thomson Reuters Intellectual Property Review as among the best intellectual property articles of the year: “Revisiting Trade Secret Extraterritoriality” (2019), “Unpacking Trade Secret Damages” (2017), “Trade Secrets, Trade, and Extraterritoriality” (2014) and “Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?” (2009).

The first article, “Revisiting Trade Secret Extraterritoriality” (with Giulia Farrior), published in the Boston University Journal of Science & Technology Law, examined whether section 1837 of the Economic Espionage Act applies to the Defend Trade Secrets Act, and in which the authors recommend a “domestic effect test,” to guide courts in determining the statute’s extraterritorial reach in civil cases. Rowe consulted with then-Sen. Kamala Harris’ office on a proposed bill to expand the statute’s extraterritorial reach to include offenses occurring abroad that have a “substantial economic effect” in the United States.

In “Unpacking Trade Secret Damages,” published in the Houston Law Review, Rowe conducted an empirical study on damages in trade secret cases in federal courts from 2000-14. The study found “average trade secret damage awards comparable to those in patent cases and much larger than trademark cases, very positive overall outcomes for plaintiffs, and higher damages on business information than other types of trade secrets,” Rowe writes.

“It was quite revealing to see what the numbers actually were,” she said. “I think people had sort of always guessed, these are getting kind of high, but to realize what they were and how they compared to other kinds of IP — in particular to patent cases — was interesting.”

In “Trade Secrets, Trade, and Extraterritoriality,” Rowe and co-author Daniel Mahfood examine the vulnerabilities American companies face abroad, where their trade secrets are not protected by U.S. law. The article explores a trade-based approach through the International Trade Commission as an appropriate forum for barring infringing products from entering the United States. The article was published in the Alabama Law Review.

In “Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?,” published in the Boston College Law Review, she observes that while abusive litigation is not unique to trade secret lawsuits, existing standards and procedures should be enforced with greater rigor and consistency to provide greater fairness for all litigants.

Rowe’s path to becoming a lawyer started with a mock trial competition in high school in Gainesville, Florida, her longtime home.

“I enjoyed so much the process of preparing the briefs and making the arguments and being in the courtroom,” she said.

At Hale and Dorr she began to delve into trademark and patent cases, and eventually trade secret cases.

“They are a wonderful combination between intellectual property and employment law, since most trade secret litigation cases occur in the workplace,” she said. “My practice experience has been extremely valuable, and it adds a lot to my scholarship and to my perspective in the classroom.”

Rowe wrote her casebook on trade secrets, with Sharon K. Sandeen of Mitchell Hamline School of Law, after teaching a course on the subject and realizing there wasn’t a book available.

“We thought a lot about how the book was organized and how the topics were presented, because I had used the materials for many of my classes,” she said.

She also teamed up with Sandeen for several other books, including “Trade Secrets in a Nutshell,” “Trade Secrecy in International Transactions” and the edited collection “Trade Secrets and Undisclosed Information.”

Rowe said new technologies often inspire her scholarship.

“Intellectual property often plays a very important, yet often unrecognized, role in the everyday business applications of these technologies,” she said.

A recent paper, “Regulating Facial Technology in the Private Sector,” published in the Stanford Technology Law Review and selected for Florida’s Research Promotion Initiative Award, focused on a topic that was quickly becoming politicized.

“When I look at issues like that, I often end up somewhere in the middle, as I try to take a more nuanced view of the issues,” she said. Often, with new technologies, she wrestles with “the way in which existing law applies to these areas, whether changes in the law might offer better guidance, considerations that might lead to better outcomes in terms of regulation, or how courts might consider particular applications of new technologies.”

The article recommended three steps toward crafting such regulation: “These include applying a differentiated approach to regulating in this area, providing precise and practical guidance for companies to navigate storage, use, collection, and sharing of biometric data, and considering trade secrecy as one potential reference point from which to address the standards necessary to addressing each of the key areas of concern.”

Professor John Duffy, director of the Law School’s Intellectual Property Program, said Rowe was “a true leader in the increasingly important field of trade secret law.”

“She has produced some of the best and most creative work in the field,“ Duffy said, “and she will be a powerful addition to our intellectual property faculty.”

Rowe said she is looking forward to working with colleagues like Duffy and Professor Danielle K. Citron, director of the LawTech Center, and many others.

“I’m excited I will be able to have down-the-hall exchanges with colleagues working on similar issues,” she said, and “The word on the street is that UVA law students are the happiest students on the planet, so I am excited to be part of that too, and to share in their joy of being in law school, because I really love being in the classroom as much as I love being a scholar.”

Select Publications

• “Procuring Algorithmic Transparency” (with N. Prior), 74 Ala. L. Rev. (forthcoming 2022).
• “Regulating Facial Recognition Technology in the Private Sector,” 24 Stan. Tech. L. Rev. 1 (2020).
• “eBay, Permanent Injunctions, and Trade Secrets,” 77 Wash. & Lee L. Rev. 553 (2020).
• “Revisiting Trade Secret Extraterritoriality” (with G. Farrior), 25 Boston U. J. Sci. & Tech. L. 101 (2019)
• “Snapshot of Trade Secret Developments,” 60 Wm. & Mary L. Rev. Online 45 (2019).
• “Sharing Data,” 104 Iowa L. Rev. 287 (2018).
• “Unpacking Trade Secret Damages,” 55 Houston L. Rev. 155 (2017).
• “Trade Secrets, Trade, and Extraterritoriality” (with D. Mahfood), 66 Ala. L. Rev. 63 (2014).
• “Contributory Negligence, Technology, and Trade Secrets,” Geo. Mason L. Rev. 1 (2009).
• “Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?” B. C. L. Rev. 2009.