By Tony Dutra

Oct. 31 — More than 200 trade secret theft complaints filed based on a new federal law have mostly avoided its most controversial aspect—requests to seize the misappropriated items or information, according to panelists at an intellectual property conference.

The strongest argument critics made against the Defend Trade Secrets Act (82 PRA, 4/28/16), enacted in May, was that employers would abuse the seizure option against ex-employees. But courts have issued seizure orders in only two cases, according to panelists at an Oct. 28 discussion during the 2016 meeting of the American Intellectual Property Law Association in Washington.

The panelists shifted their concern to another aspect of the new federal law that will have to resolve conflicts among case law in various states on trade secret misappropriation: What is an adequate showing of “reasonable efforts” to maintain the secrecy of the trade secret, particularly in the digital era?

Some states have low requirements, according to James Pooley,senior counsel for intellectual property and trade secrets litigation at Orrick Herrington & Sutcliffe LLP, in Menlo Park, Calif., dismissing a defense on those grounds as the equivalent of saying it's okay to steal a car if the owner left the keys in the ignition.

Federal courts will be more demanding that trade secret owners show “particularities and details as to reasonable efforts,” said intellectual property attorney Peter J. Toren of Weisbrod Matteis & Copley PLLC, Washington.

Pamela Passman, president and CEO of the Center for Responsible Enterprise And Trade—a Washington-based group focused on piracy, counterfeiting, trade secret theft, said that the “rigor given to cybersecurity is going to change.” Expectations that companies have digital security plans and systems “have increased dramatically,” she said.

To contact the reporter on this story: Tony Dutra in Washington at adutra@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com