Trade Secrets and the DTSA: Protecting What You Cannot Register
By Casey Scott McKay ·
Trade secrets are the only major form of intellectual property with no registry, no examiner, and no certificate — protection exists only so long as the information stays secret and the owner behaves like it matters. This article explains the Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1836-1839, how it sits alongside the Uniform Trade Secrets Act adopted in every state but New York, and the two statutory elements of independent economic value derived from secrecy and reasonable measures to keep the information secret. It covers what courts actually count as reasonable measures, the two distinct routes to misappropriation liability — acquisition by improper means and breach of a duty of confidence — and the safe harbors for reverse engineering and independent development. It works through the DTSA's remedial architecture: the rarely granted ex parte civil seizure order at § 1836(b)(2), exemplary damages, reasonable royalties, and the whistleblower immunity notice at § 1833(b) whose omission silently forfeits fees and double damages. It traces the inevitable disclosure doctrine from PepsiCo through its flat rejection in California, explains why the collapse of the FTC's 2024 noncompete rule made trade secret law the primary lever employers have left, and closes with criminal exposure under the Economic Espionage Act, the questions the courts have not settled, and the fact patterns that generate most of the litigation.
IP and Technology > Trade Secrets | Article | Published 12 May 2025 - Updated 15 July 2026 | Casey Scott McKay - marksy.us
Summary. Trade secrets are the only major form of intellectual property with no registry, no examiner, and no certificate — protection exists only so long as the information stays secret and the owner behaves like it matters. This article explains the Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1836-1839, and how it sits alongside the Uniform Trade Secrets Act adopted in every state but New York, then works through the two statutory elements: independent economic value derived from secrecy, and reasonable measures to keep the information secret. It covers what courts actually count as reasonable measures, the two distinct routes to misappropriation liability — acquisition by improper means and breach of a duty of confidence — and the safe harbors for reverse engineering and independent development. It examines the DTSA's remedial architecture, including the rarely granted ex parte civil seizure order under 18 U.S.C. § 1836(b)(2), exemplary damages, reasonable royalties, and the whistleblower immunity notice at § 1833(b) whose omission silently forfeits fees and double damages. It traces the inevitable disclosure doctrine from PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995), through its flat rejection in California, and explains why the collapse of the FTC's 2024 noncompete rule made trade secret law the primary lever employers have left. It closes with criminal exposure under the Economic Espionage Act, the questions the courts have not settled, and the fact patterns that generate most of the litigation.
Keywords: trade secrets · defend trade secrets act · dtsa · 18 u.s.c. 1836 · uniform trade secrets act · reasonable measures · misappropriation · improper means · ex parte seizure order · whistleblower immunity notice · inevitable disclosure · pepsico v. redmond · economic espionage act · noncompete agreements · ftc noncompete rule · confidentiality agreements · exemplary damages · reasonable royalty · departing employee · trade secret litigation
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