When a foreign individual or company misappropriates the trade secrets of an American company, and the acts of misappropriation occur entirely outside of the United States, the trade secret law of the United States generally will not apply. This represents the principle of extraterritoriality, and identifies a major vulnerability for companies that choose to conduct operations or engage in other business abroad. In such situations, the substantive and procedural laws of another country are likely to define whether the allegedly misappropriated information is protected and has been misappropriated. Providing a domestic forum to prosecute extraterritorial infringement would substantially benefit domestic trade-secret holders. However, the current cases demonstrate the wide divergence in the manner courts apply U.S. trade secret laws to redress extraterritorial misappropriation. In the absence of a coherent framework, courts have struggled to find consistency, which, in turn, has left trade-secret owners unsure of the extent of their enforceable rights. This Article explores an illustrative case study of a trade-based approach to this problem, but examining a recent Federal Circuit opinion that provides an interesting enforcement alternative that appears to circumvent jurisdictional issues for U.S. companies. Using section 337 of the Tariff Act of 1930 (a trade statute that protects United States industry from unfair foreign competition) the Federal Circuit upheld the International Trade Commission’s (ITC) decision to apply U.S. trade secret law to misappropriation that occurred in China. By providing a domestic venue for businesses to at least partially address international violations of their trade-secret rights, the ITC has taken an important, practical step toward addressing international trade-secret espionage. This step has the potential for more immediate and far-reaching impact than the behind-the-scenes diplomatic efforts or uncertain legislative efforts that have heretofore been the United States’ primary approach to addressing this problem. The Article evaluates this trade-based alternative that bars infringing products from entering the U.S. market, and suggests it is a reasonable alternative to the gaping hole that currently exists in the traditional extraterritorial doctrinal framework. It is consistent with a similar statutory import ban in patent law, consistent with the U.S. government’s sovereign right to control trade within its borders, and provides a viable practical and efficient alternative for trade secret owners who face foreign misappropriation. However, the Article also considers the open questions and implications that arise from this approach, and other legislative alternatives that may be of some value in addressing this complicated issue.
En række amerikanske præsidentkandidater og kongresmedlemmer er i de sidste år begyndt at argumentere for, at USA burde lancere militære angreb mod...
Lenders are perfectly free to decide for themselves whether, when, how, to whom and on what terms they will extend credit to a sovereign borrower. But...
The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory...
Countries hit by unexpected crises often look to their overseas diasporas for assistance. Some countries have tapped into this generosity of their...
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus...
In this article, we examine the relations between risk, the choice of foreign or local contract terms (parameters), and maturity in the sovereign debt...
In this article, we examine the relations between risk, the choice of foreign or local contract terms (parameters), and maturity in the sovereign debt...
Both theorists and courts commonly assume that high-dollar financial contracts between sophisticated parties are free of linguistic errors...
As the knowledge economy expanded and concerns about trade secret misappropriation mounted in the digital age, federal policymakers undertook efforts...
At the inception of a new and potentially transformative type of tax enforcement, this Article reviews the goals underlying the prohibition on state...
Since Russia invaded Ukraine in 2022, the United States and its allies have searched for the best way to express their horror and dismay. At the level...
Ethnographic approaches are not as widely practiced among constitutional scholars as they probably should be. Some may harbor perfectly reasonable...
The knowledge economy, a seeming wonder for the world, has caused unintended harms that threaten peace and prosperity and undo international...
National security review of corporate transactions has long been a relatively sleepy corner of regulatory policy. But as governments merge economic...
The roots of this book run through an article in this Journal almost forty years ago. Professor Iwasawa, as he was then, came to the University of...
Over the past year, a range of presidential candidates and members of Congress have argued that the United States might benefit from conducting...