IKV hosted on 6 June 2016 Prof. Llewellyn Joseph Gibbons from the College of Law at the University of Toledo and current guest lecturer at the Faculty of Law at Yeditepe University who realised a presentation regarding trade secrets, copyright, patents and trademarks in the United States. In his presentation, Prof. Gibbons focused on four topics which are as follows: New Federal Trade Secret Law, copyright termination of transfers, patents and the potential problems of trademarks.

Prof. Gibbons started his presentation by mentioning the Defend Trade Secrets Act (DTSA) and its implications vis-à-vis trademarks. In that context, Prof. Gibbons added that the definition of the DTSA includes “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, formulas, designs, prototypes, methods, techniques, processes, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialised physically, electronically, graphically, photographically, or in writing”. He mentioned that 74 percent of American companies consider their Intellectual Property (IP) very important and valuable to their activities.

Furthermore, Prof. Gibbons added that in 2013, a study published by the US Chamber of Commerce estimated the cost of cybercrime in the US to have increased by 120 million dollars. As such, Prof. Gibbons explained that as a result of the alleged Chinese corporate espionage and online hacking by cyber-criminals, the Congress enacted the DTSA. Prof. Gibbons also reminded that the Forbes magazine said that the DTSA represents one of the most important pieces of legislation with respect to IP.

Another issue raised by Prof. Gibbons was regarding the Uniform Trade Secrets Act (UTSA) which he argued is in fact not uniform. He stressed that this is due to the fact there is a different implementation of the UTSA across 48 states of the US except for New York and Massachusetts which continue to use common law.

Prof. Gibbons also explained the actual definition of what is a trade secret. He explained that trade secret actually refers to a sort of information, including formula, pattern, compilation, program, device, method technique or process. For these terms to become Trade Secrets, Prof. Gibbons explained that at least one of these two criteria must be fulfilled. Moreover, he added that a trade secret derives from an independent economic value and is subject of efforts that are reasonable under the circumstances to actually maintain secrecy.

Prof. Gibbons also referred to the limits of the DTSA. He added that the owner of a trade secret can bring civil action under the DTSA “if the person is aggrieved by a misappropriation of a trade secret that is related to a product of service used in, or intended for use in, interstate of foreign commerce”. Furthermore, he explained that the DTSA will exist alongside existing state law, even for cases that may also be brought under the DTSA.

Moreover, Prof. Gibbons argued that the DTSA was created in order to authorise private civil actions in federal courts for trade secret misappropriation, but it would put the protections afforded to trade secrets in line with protections for other categories of IP. Prof. Gibbons added that the intention behind the DTSA was to establish a uniform national law of trade secrets to fix the complexities and costs created by inconsistent state trade secret laws of the US. In contrast, he explained that it still leaves all state trade laws in place and effectively adds a new layer of federal law.

Later in his presentation, Prof. Gibbons mentioned the Trademark-Lanham Act which protects again immoral, deceptive, or scandalous matter, or matter which may disparage or falsely suggest a connection. Prof. Gibbons also referred to the non-practicing entities in lawsuits and highlighted that there is a possibility of preliminary and permanent injunction once the patent infringement has already taken place.  

In the light of the ongoing TTIP negotiations between the United States and the EU, the seminar gave the opportunity to better understand the American legislation and position on trade secret and intellectual property. In this context, Prof. Gibbons explained that trade secrets protection legislation is different between the EU and the United States but he also stressed that the TTIP would encourage raising the level of standards.