Temptations to Take: Misappropriation of Trade Secrets, Damages and Remedies

Authors

• Eric S. Tautfest

Abstract

Protecting trade secrets serves two basic functions: it provides a means for preserving standards of commercial ethics and it encourages innovation. In contrast to a patent or a copyright, a trade secret has no statutory limitation and can, conceivably, be protected forever. Further, while patent and copyright protection extends only to certain types of materials or information, trade secret protection extends to a wide range of information. Additionally, trade secrets are not publicly disclosed; with patents, the entire patent file and its contents become public property.

In Texas, trade secret protection is defined by a large body of welldeveloped case law. In most states, including Texas, courts follow section 757 of the Restatement of Torts. More recently, a majority of states have adopted, in one form or another, the Uniform Trade Secrets Act ("Uniform Act"). Texas, however, has no civil statutes that protect the interests of employers against former employees' appropriation and disclosure of trade secrets to competitors. This article explores the current status of trade secret law in Texas by tracing its historical evolution and examining seminal cases and recent judicial decisions. This article first describes a trade secret according to Texas law. The article then discusses civil remedies, along with a measure of damages developed by Texas common law for the misappropriation of trade secrets by way of breach of confidence or improper means. Finally, the article examines the possibility of future unjust enrichment as an equitable remedy in Texas.

Recommended Citation

Eric S. Tautfest, Temptations to Take: Misappropriation of Trade Secrets, Damages and Remedies, 7 Computer L. Rev. & Tech. J. 117 (2003)