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3 IPCLJ 1 (2018)

handle is hein.journals/ipclj3 and id is 1 raw text is: Colon: THE DEFEND TRADE SECRETS ACT'S EXTRATERRITORIAL REACH THE COURT MUST PLAY ITS INTERPRETATIVE ROLE: DEFENDING THE DEFEND TRADE SECRETS ACT'S EXTRATERRITORIAL REACH Jada Colon Abstract The exact reach of the Defend Trade Secrets Act's extraterritoriality provision has yet to be interpreted by the courts. If United States securities, trademark, and antitrust law serves as any indication of what is to be expected, the Defend Trade Secrets Act may be subject to an inconsistent array of interpretation. When faced with interpreting the extraterritorial scope of the Defend Trade Secrets Act for the first time, the court must set a strong precedent by enacting a single, uniform effects test that will not falter when applied in different circumstances and by different circuits. Courts interpreting United States securities, trademark, and antitrust law have enacted a wide variety of effects tests for interpreting extraterritoriality. Generally, the language of the effects test being applied has such an expansive interpretation, causing the courts to struggle with applying it in a consistent manner. Using trade secret policy, legislative intent, and the history of the Defend Trade Secret Act as a guide, this paper encourages the courts to enact a misappropriation effects test when determining the extraterritorial reach of the statute. A misappropriation effects test will take away the emphasis on the level of effects necessary to give rise to a showing of effects, and focus the inquiry on the nature of effects necessary to give rise to a showing of effects sufficient to confer extraterritorial reach. The misappropriation effects test shifts the focus to the specific misappropriation effects that Congress sought to protect against in proscribing the Defend Trade Secrets Act. It is imperative that the courts interpret the extraterritoriality provision of the Defend Trade Secrets Act with care so that it does not confine within the United States, what Congress intended to reach abroad. I. INTRODUCTION Imagine that an engineer from your company's subsidiary, located in another country, has joined a competitor and has begun to use your trade secrets.' In an attempt to avoid the uncertainty and expense of suing in another country's court, you contact your Intellectual Property attorney. To your surprise, your attorney has informed you that the United States has recently passed trade secret legislation that may be extended extraterritorially to reach misappropriation outside of the United States.2 Your lawyer then warns you that, due to the recent enactment of the legislation, ' Dave Bohrer, Extending US Trade Secret Law to Reach IP Theft in China, FLAT FEE IP, (Apr. 11, 2017), http://www.flatfeeipblog.con2017/04/articles/trade-secrets/extending-us-trade-secret-law-to-reach-ip-theft-in- china/. 2 See id. Published by University of Cincinnati College of Law Scholarship and Publications, 2018

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