A Preliminary Study on The Legal Effect of the Blockchain-Generated Data in Taiwan
A Preliminary Study on The Legal Effect of the Blockchain-Generated Data in Taiwan
I. Preface
Governments around the world have set various regulations and guidelines to deal with the increasing application of blockchain technology, trying to keep the law up to date with technological development and the latest trends. Among them, the application of blockchain technology to regulations has become a hot topic. Because of its features, such as immutable, easy to verify and transparently disclosed, it can improve the efficiency of law enforcement and reduce cost. Moreover, decentralization and the verification mechanism generated by mathematical computation can avoid the disputes arising from the existing system, in which the mechanism is set up and controlled by independent institutions, and thus the credibility could be universal. The international trend also shows the importance attached to the application of blockchain technology in the legal field. In 2017, the “Legal Services Innovation Index”, a study conducted by the Michigan State University College of Law and Google evaluated the level of innovation of law firms according to the search data on innovation indicators of the world’s major law firms. Blockchain has the highest number of clicks among all indices, and the average number of clicks of blockchain is more than twice that of AI.[1] In addition, there are international cases regarding the connection between the blockchain technology and legal provisions as well as the real cases that used blockchain technology to handle legal matters.[2] An organization, such as the Global Legal Blockchain Consortium (GLBC), work with enterprises, law firms, software development units, and schools to study the standards formulation and application methods of the application of blockchain technology to law-related matters. [3] This article will first discuss the legal enforceability of data generated by the blockchain technology through international cases, then review Taiwan’s current status and the legal enforceability of the data generated by the blockchain technology and to explore possible direction for regulatory adjustment if the government intends to ease the restriction on the application of blockchain in the fields of evidence authentication and deposition.
II. International cases
1. US case: adjust the existing regulations and recognize the enforceability of blockchain technology
The amendment HB2417[4] to the Arizona Electronic Transactions Act (AETA) signed by Arizona in April 2017 defines the blockchain technology and smart contracts and recognizes their legal effect on signatures, records and smart contracts. HB2417 defines “blockchain technology” as a “distributed, decentralized, shared and replicated ledger, which may be public or private, permissioned or permissionless, or driven by “tokenized crypto economics or tokenless” and provides that the “data on the ledger” is protected with cryptography, is immutable and auditable and provides an uncensored truth.” It’s worth noting that although, by definition, the data is true, it is uncensored truth in nature, which emphasizes the originality of the data. A “smart contract” is an “event driven program, with state, that runs on a distributed, decentralized, shared and replicated ledger that can take custody over and instruct transfer of assets on that ledger.” Under the original AETA regulations, records or signatures in electronic form cannot be deprived of legal validity and enforceability merely because they are in electronic form. To eliminate the legal uncertainty of any blockchain related transactions and smart contracts related to digital assets, HB 2417 states that a signature that is secured through blockchain technology is considered to be in an electronic form and to be an electronic signature, and a record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic record. The statute also provides that smart contracts may exist in business, and a contract relating to a transaction may not be denied legal effect, validity or enforceability solely because that contract contains a “smart contract term.” This makes the enforceability of electronic signing and electronic transactions made by Arizona’s blockchain technology equivalent to that of the signature and contract made by the traditional written format. In the following year, the Ohio governor signed the amendment SB220[5] to the Uniform Electronic Transactions Act (UETA) in August 2018, which took effect from November. The focus of the amendment is the same as that in Arizona. Although, unlike HB 2417, SB220 does not define blockchain technology, the added content can still guarantee the enforceability of electronic signatures and contracts made by the blockchain technology. The focus of the two amendments in the US is to supplement and revise the laws and regulations made in the past so that they are applicable to the transaction method under blockchain technology and have the same effect as other recognized methods. This reduces the uncertainty related to blockchain technology at the regulatory and commercial application level, and is expected to attract the blockchain related companies, investors and developers.
2. Case of China: The enforceability of blockchain technology in evidence deposition is recognized in line with courts’ new type of judgment.
In September 2018, the Supreme People's Court implemented “The Provisions on Several Issues Concerning the Trial of Cases by Internet Courts,”[6] in which Paragraph 2 of Article 11 mentions that where the authenticity of the electronic data submitted by a party can be proven through electronic signature, trusted time stamp, hash value check, blockchain or any other evidence collection, fixation or tamper-proofing technological means, or through the certification on an electronic evidence collection and preservation platform, the Internet court shall make a confirmation. It shows that the Internet court can recognize the evidence deposited by blockchain technology, and its enforceability is equivalent to that of other technologies if its authenticity can be proved. Paragraph 1 of the same article also proposes the basis for review and judgment on the relevant standards for the broad definition of electronic evidence recognition. “The authenticity of generation, collection, storage and transmission process of the electronic data shall be examined and judged, and the items to be reviewed include whether the hardware and software environments such as the computer system based on which electronic data is generated, collected, stored and transmitted are safe and reliable; whether electronic data originator and generation time are specified, and whether the contents shown are clear, objective and accurate; whether the storage and safekeeping media of electronic data are definite, and whether the safekeeping methods and means are appropriate; whether electronic data extractor and fixer, and electronic data extraction and fixation tools and methods are reliable, and whether the extraction process can be reproduced; whether the contents of electronic data are added, deleted, modified or incomplete, or fall under any other circumstance; and whether electronic data can be verified in specific methods.” The judgment is based on a clear review. It is a supplement to the notarization process, which was the solo judgment basis for the enforceability of digital evidence. In addition, the rules on proof are clearly set out in Article 9, which covers two situations: online and offline. For offline evidence, the parties can convert it into electronic materials by scanning, re-shooting and duplicating, and then upload it to the litigation platform. For online evidence, it can be divided into two situations. One is the online electronic evidence possessed by the party, which can be imported to the litigation platform by providing links or uploading materials. The other is that the Internet court can obtain the structural information of the relevant cases from the e-commerce platform operators, Internet service providers and electronic data deposition and retrieve platform, and import it to the litigation platform to directly provide the information to both parties so that they can select and prove their claims. In this way, the court can use technical means to complete the migration and visual presentation of information. Before the Supreme People's Court enforced the provisions, the Hangzhou Internet Court of China recognized the enforceability of electronic evidence under the blockchain technology when hearing a copyright dispute in June 2018. The court's judgment pointed out that after reviewing the impartiality, technical level and evidence preservation methods of the blockchain evidence deposit service provider, the enforceability of the evidence is recognized, and thus the case was deemed infringement.[7] Beijing Dongcheng District Court also reviewed the blockchain deposition technology in an infringement of information network communication in September of the same year, including data generation, deposition, preservation, and recognized the enforceability of electronic evidence made by the blockchain technology. The court adopted the electronic evidence[8]. The Beijing Internet Court allows evidence deposition of the litigation files and evidence uploaded to the electronic litigation platform through the Balance Chain of evidence deposition established by the blockchain technology when handling the litigation cases online. This can prevent tampering and ensure the safety of litigation while keeping possible litigation evidence to facilitate verification in the future. While the Balance Chain is going online, the supporting standards, including the Beijing Internet Court Electronic Evidence Platform Access and Management Standards, the Enforcement Rules of the Beijing Internet Court Electronic Evidence Platform Access and Management Standards, the Application Form for Beijing Internet Court Electronic Evidence Deposition Access and the Instruction on the Beijing Internet Court Electronic Evidence Deposition Access Interface, are released simultaneously. These supporting standards prescribe the requirement of receivers, the requirement for the electronic information system of the receiver and the requirement for the juridical application of the evidence platform in details from the practical point of view so that the potential receivers can interconnect in a compliant manner while ensuring the quality of the connected data.
III. Taiwan’s current situation
In the above cases, the United States amended the laws and regulations related to the electronic transaction by increasing the scope of the terms, such as electronic forms of records, signatures and transactions so that the records, signatures and transactions made by the blockchain technology is as effective as that of other technologies. According to Article 9 of the Taiwanese Electronic Signatures Act, the enforceability of the data generated by blockchain technology shall still be judged case by case in terms of the technology for electronic documents, signature and transaction formation, and its applicability or exclusion shall be determined by laws or administrative agencies. In China, the role of electronic data is discussed in the relevant standards used by the Internet Court to examine the cases. Regarding the definition of electronic materials, electronic records and electronic documents, Paragraph 1 of Article 2 of the Taiwanese Electronic Signatures Act defines electronic document as a record in electronic form, which is made of “any text, sound, picture, image, symbol, or other information generated by electronic or other means not directly recognizable by human perceptions, and which is capable of conveying its intended information.”[9] In addition, Article 4 states “With the consent of the other party, an electronic record can be employed as a declaration of intent. Where a law or regulation requires that information be provided in writing, if the content of the information can be presented in its integrity and remains accessible for subsequent reference, with the consent of the other party, the requirement is satisfied by providing an electronic record. By stipulation of a law or regulation or prescription of a government agencies, the application of the two preceding paragraphs may be exempted, or otherwise require that particular technology or procedure be followed. In the event that particular technology or procedure is required, the stipulation or prescription shall be fair and reasonable, and shall not provide preferential treatment without proper justifications.” [10] The electronic records, regardless of the type of technology, are given the same effect as paper documents with the consent of both parties. In litigation, electronic records, electronic evidence or similar terms are not found in the Criminal Code of the Republic of China, the Civil Code, the Code of Criminal Procedure and the Taiwan Code of Civil Procedure. The adoption of electronic records often refers to Paragraph 2 of Article 220 of the Criminal Code of the Republic of China[11]. An audio recording, a visual recording, or an electromagnetic recording and the voices, images or symbols that are shown through the computer process and are sufficient evidence of intention shall be considered a document. The content that is considered meaningful is that the identity of the person expressing the content is identifiable according to the content and can be used to prove legal relationship or fact in social life. The relevant standards for proof under the electronic evidence follow Article 363 of the Taiwan Code of Civil Procedure[12]. For non-documentary objects which operate as documents, including those are accessible only through technological devices or those that are practically difficult to produce their original version, a writing representing its content along with a proof of the content represented as being true to the original will be acceptable. However, the way of proof or recognition standards are not sufficiently described. Or according to Paragraph 2 of Article 159-4 of the Code of Criminal Procedure, “documents of recording nature, or documents of certifying nature made by a person in the course of performing professional duty or regular day to day business, unless circumstances exist making it obviously unreliable. In addition”, and Paragraph 3 “ Documents made in other reliable circumstances in addition to the special circumstances specified in the preceding two Items.” [13] In fact, the Juridical Yuan started to promote the electronic litigation platform (including online litigation) in 2016, and has launched the online litigation business by gradually opening the application for different types of applicants and litigation.[14] However, there is no description on the technical type and inspection standards of electronic evidence. Moreover, only the litigation evidence is uploaded. There is no evidence deposition before litigation for comparison during litigation.
Under Taiwan’s laws and regulations, electronic evidence and its proving method is not significantly different from other types of evidence. The judgment of evidence shall still depend on judges’ recognition on the evidence. Taking the practice of criminal litigation as an example, it can be viewed at three levels[15]: 1. The submission of the evidence. If the evidence is collected illegally, not following a statutory method or is not logically related to the pending matters, it will be excluded. This is the way to determine whether the evidence is eligible to enter the evidence investigation process. 2. In the investigation of evidence, the method of investigation (e.g., whether it is legal), the determination of relevance and the debate on evidence (e.g., to confirm the identity of the person producing the electronic evidence, whether the electronic evidence is identical to the original version without addition, deletion or alteration) are investigated during the investigation procedure. 3. The debate on evidence is to determine the power of the evidence by considering the relationship among the elements that constitute the whole and whether the evidence can prove the connection among all elements. In addition, whether the electronic evidence is consistent with the original version is often based on Article 80 of the Notary Act, "When making notarial deeds, notaries shall write down the statements listened to, the circumstances witnessed, and other facts they have actually experienced. The means and results of the experience shall also be stated in the notarial deeds.” [16] A notary shall review the electronic evidence and record the inspection process and the inspection results to demonstrate its credibility.
VI. Conclusions and recommendations
According to the latest 2050 smart government plan[17] announced in the Executive Yuan’s 3632nd meeting held on December 27, 2018, the government is planning to connect the database of each government agency through blockchain technology, and the plan also includes establishment of digital identification. It is foreseeable that there will be more and more electronic materials, documents and records connected by blockchain technology in the future. When it comes to improve management efficiency and reduce the barriers to introduce this technology to various sectors, it is necessary to adjust the related regulations. At present, there are no statutory provisions for the technology that assist the use of the electronic evidence involved in traditional litigation channels or online platforms, including using blockchain for evidence deposition and authentication . This also poses uncertainty to the judges when they make judgments. If we consider the continuous development and breakthrough of technology, which is relatively faster than the legislative process, and the traditional tangible transactions and contracts are still the majority in life, Taiwan has defined electronic materials, electronic records and electronic documents in the Electronic Signatures Act to ensure and strengthen the legal rights and benefits under the adoption of the technology. In addition, the Electronic Signatures Act also reserves the right to determine whether the technology is applicable to the laws and regulations or administrative agencies. In other words, the technology behind electronic materials, records and documents are not specified, and the aforementioned electronic materials have the same effect as the contracts and signature as the traditional written format. However, there are no standards to specify which standards are valid for evidence deposition and authentication for electronic materials on the level of deposition and authentication. In the future, when improving the relevant functions of the online litigation platform, the Juridical Yuan can also consider using technologies, such as blockchain or timestamps to provide evidence deposition service, which is expected to enhance the efficiency of evidence verification for online litigation in the future and prevent wasting review resources on invalid evidence for a better operation mode. This is in line with the government's policy direction. By providing support and demonstration of emerging technologies, not only limited to blockchain, on the legal level, it can reduce the public’s uncertainty and risk on introducing or applying the technology to legal process. This is very helpful in realizing a large scale application of the technology.
[1] Legal Services Innovation Index, Phase 1, Version 1.0, https://www.legaltechinnovation.com/law-firm-index/ (last visited on Jan. 11, 2019).
[2] For example, Arizona's Arizona Electronic Transactions Act (AETA) and Ohio’s Uniform Electronic Transactions Act (UETA) described the electronic signature and the enforceability of contracts under blockchain technology; in China, Beijing Internet Court provides litigation files and litigation evidence deposition service based on blockchain technology for future litigation.
[3] The Global Legal Blockchain Consortium website, https://legalconsortium.org/ (last visited on Jan. 11, 2019).
[4] H.B. 2417, 53th Leg., 1st Regular. (AZ. 2017).
[5] S.B. 220, 132ND General Assembly. (OH. 2017-2018).
[6]“The Provisions on Several Issues Concerning the Trial of Cases by Internet Courts,” the Supreme People's Court of the People’s Republic of China http://www.court.gov.cn/zixun-xiangqing-116981.html
(last visited on Jan. 11, 2019).
[7] Tencent Research Institute, <The era of judicial blockchain has arrived? ——from the two cases of blockchain electronic deposition>, October 23, 2018, https://ek21.com/news/1/132154/ (last visited on Jan. 11, 2019).
[8] Securities Daily, <Beijing Dongcheng District Court confirmed the evidence collection by blockchain for the first time-- application of "blockchain + justice" for new opportunities in history> October 20, 2018, https://www.jinse.com/bitcoin/258170.html (last visited on Jan. 11, 2019).
[9] Paragraph 1 of Article 2 of the Electronic Signatures Act
[10] Article 4 of the Electronic Signatures Act
[11] Paragraph 2 of Article 220, “A writing, symbol, drawing, photograph on a piece of paper or an article which by custom or by special agreement is sufficient evidence of intention therein contained shall be considered a document within the meaning of this Chapter and other chapters. So shall be an audio recording, a visual recording, or an electromagnetic recording and the voices, images or symbols that are shown through computer process and are sufficient evidence of intention.”
[12] Article 363 of the Taiwan Code of Civil Procedure, “The provisions of this Item shall apply mutatis mutandis to non-documentary objects which operate as documents. Where the content of a document or an object provided in the preceding paragraph is accessible only through technological devices or it is practically difficult to produce its original version, a writing representing its content along with a proof of the content represented as being true to the original will be acceptable. The court may, if necessary, order an explanation of the document, object, or writing representing the content thereof provided in the two preceding paragraphs.”
[13] Paragraph 2 of Article 159-4 of the Code of Criminal Procedure
[14] Liberty Times, <The Juridical Yuan is promoting “E-litigation.” Two new systems are on the road.” August 1, 2018, http://news.ltn.com.tw/news/society/breakingnews/2506118 (last visited on Jan. 11, 2019).
[15] Chih-Lung Chen, “Seminar on the Reform of the Code of Criminal Procedure 3: Revision Direction of Rule of Evidence,” The Taiwan Law Review, Issue 52, Page 71-73 (1999).
[16] Article 80 of the Notary Act.
[17] BlockTempo, <The Executive Yuan Announced the Smart Government New Plan: the Taiwan Government will Use Blockchain Technology to Establish Information Exchange Mechanism of Various Agencies>, January 2, 2019, https://www.blocktempo.Com/taiwan-gv-want-to-use-blockchain-tech-build-data/ (last visited on Jan. 11, 2019).
- Legal Services Innovation Index
- The Global Legal Blockchain Consortium website
- The Provisions on Several Issues Concerning the Trial of Cases by Internet Courts
- The era of judicial blockchain has arrived? ——from the two cases of blockchain electronic deposition
- Beijing Dongcheng District Court confirmed the evidence collection by blockchain for the first time-- application of "blockchain + justice" for new opportunities in history
- The Juridical Yuan is promoting “E-litigation.” Two new systems are on the road.”
- The Executive Yuan Announced the Smart Government New Plan: the Taiwan Government will Use Blockchain Technology to Establish Information Exchange Mechanism of Various Agencies
Hsu, Wan-Ting
Legal Researcher
Chien-Shan Chiu I. Introduction Taiwan, a country with limited natural resources, has been seen to create rapid economic development for the past few decades. This achievement has been praised as an “economic miracle” and making Taiwan one of Asia’s “Four Tigers1”. The success is a result of the tremendous hard work and efforts exerted by the local people and enterprises and the forward-looking national policies initiated by the government. Recognizing fast technology breakthroughs and globalization trend are going to have major impacts on the traditional ways of managing business and may as a result change the current competitive landscape, the government of Taiwan has promoted vigorously of transforming Taiwan into a “green silicon island” with high value-added production2. The goal is to make Taiwan an innovation headquarters for local enterprises and a regional research and development center for international corporations. It is hoped that eventually, Taiwan will not only be known as a country manufacturing high-quality “ Made in Taiwan” products as it is now, but also an innovative country producing products that are “Designed in Taiwan”. In order to encourage more innovation and to create more high value-added products, several national strategies were initiated by the government. One of the most important policies in today’s knowledge-based economy is certainly to provide a sound and effective intellectual property protection environment so that the results created from human intelligence can be well protected and utilized. This essay provides an overview of the recent progress of the TIPS (stands for Taiwan Intellectual Property System) project, which is currently promoted by the Science and Technology Law Center. The TIPS project is an innovative program solely developed by the Taiwanese scholars in year 2003 and has since achieved quite significant success. The second part of this essay gives a brief introduction of the recent changes made to the intellectual property system in Taiwan. II. Overview of the Recent Progress of the TIPS Project 1. The “Developmental Stage” The TIPS project has been promoted at the initiative of the Intellectual Property Office of the Ministry of Economic Affairs in 2003. The main goal of this project is to develop a set of guidelines for managing intellectual property to be implemented by the Taiwanese enterprises. At “developmental stage”, academic journal articles and relevant legislative requirements were gathered; intellectual property management experts were consulted and companies with good and effective intellectual property management practices were interviewed. All of the information and advises were collected and analyzed and formulated into a set of guidelines which basically covers the whole cycle of intellectual property management right starts from its creation, protection, maintenance and exploitation. The types of intellectual property rights managed include patent, trade mark, copyright and trade secret. A hearing for the draft guidelines was held in 2004. A pilot study was done by selecting eight representative domestic companies in 2005. All the public opinions, comments and advises from the trial companies were collected and used to revise the draft guidelines. The revised guidelines were then formally promulgated on March 23, 2007. The project then entered into a full “promotional stage” where the Science and Technology Law Centered entrusted by The Industrial Development Bureau of the Ministry of Economic Affairs was responsible for promoting the project. As the fundamental objective of TIPS is to assist companies to establish an effective internal intellectual property management system at relatively low cost, the whole system was developed based upon the ISO 9001:2000 Quality Management Standard. Since the ISO standards are widely recognized and adopted by many Taiwanese enterprises, for an enterprise with ISO system implemented, TIPS can be easily integrated into the existing ISO standards, conflicts between these two systems will be minimized and it will only require minimum organization structural changes and implementation costs. Further, by incorporating the PDCA (Plan-Do-Check-Action) model and “process-oriented approach” of ISO 9001:2000, the IP management processes implemented within an enterprise possess the feature of being able to be continuously improved. 2. The “Promotional Stage” In order to facilitate the promotion and draw more public attention to TIPS, various supplementary measures were introduced: (1) Free on-line self-assessment tool A collection of 50 questions is provided on the TIPS website3. Once a company has registered as a member of TIPS (simply by filling up some details about the company), it can use these questions to self-assess the effectiveness and adequacy of its existing (if any) IP management infrastructure. After the company has completed all the questions, the on-line tool would automatically generate few suggestions relating to the management of intellectual property based on the answers provided by the company. The company can also find out how they stand among all the enterprises which have taken the assessment previously. The on-line self-assessment tool is the initial step for those companies wanting to know more about TIPS. Once they realize that they are far behind the requirements of an effective IP management system, they can then move on to the next stage to implement TIPS. (2) On-Site Diagnostic and Consulting Service Once a company has completed the on-line self-assessment questions, it is then eligible to apply for a more detailed assessment of its internal IP management infrastructure conducted by a qualified IP service consultant. The IP service consultant will interview the managers responsible for managing IP related matters within a company and check relevant internal policies and documents. Concrete advises in relation to the implementation of TIPS will be given based on the inadequacies and problems uncovered during the on-site visit. The cost for the diagnostic and consulting service is fully covered by the government. (3) Model Companies Every year since 2004, some model companies are chosen as “demonstrative” companies for the implementation of TIPS. For instance, a total of 14 enterprises were selected as model companies this year. Among these companies, 3 “clusters of enterprises”, each of which contains 3 companies were chosen. The so-called “cluster of enterprises” is a group of companies that can be constituted by companies providing similar products or services within the same industry, or companies having the relationships as suppliers and consumers or companies within the same corporate structure. The introducing of implementing TIPS through “cluster of enterprises” is a promotion strategy that aims to disseminate the TIPS project more effectively and efficiently. For these selected model companies, certain percentage of the cost for implementing TIPS is subsidized by the government. (4) Certification After an enterprise has fully implemented TIPS, they can then apply for certification. All the prescribed documents must firstly be sent to the TIPS working team which is responsible for all the administrative works of TIPS. After a formality check, 2 or 3 (depending on the size of the enterprise) IP experts will be chosen to conduct an on-site inspection to determine whether the newly implemented IP management system meets the minimum requirements of TIPS. If the experts are satisfied with the inspection result, a certificate for the compliance of TIPS will be issued by the Industrial Development Bureau (IDB) of the Ministry of Economic Affairs. The certificate serves as government’s assurance to the public that the certified enterprise has at least the minimum ability (evaluated in accordance with government’s standard) to manage and protect its intellectual property. (5) IP Management Courses Three types of courses are provided to train IP management personnel. The basic course is an introductory course, which covers the basic principles of TIPS. The intermediate course called The Practical Implementation Course covers more detailed explanations of TIPS and how it can be implemented into the enterprise. Any person who has completed this course and passed the test will receive a certificate. The advance course called Self-Assessment Course teaches students how to evaluate and determine whether their newly developed IP management system conforms to the TIPS requirements. Again, a person who has completed this course and passed the test will receive a certificate. In order for an enterprise to be eligible to apply for a certificate for the compliance of TIPS, the enterprise must firstly furnish a self-assessment report to be completed by a “qualified person”. Such “qualified person” is the person who has successfully obtained the certificate for the completion of Self-Assessment Course. 3. Achievement The TIPS project has received wide recognition since it first launched in year 2004. To the end of 2008, 297 enterprises have completed the on-line self-assessment questions; 73 companies have received on-site diagnostic and consultation services; 618 persons have taken the IP management courses; 45 enterprises have successfully obtained the certificates for the compliance of TIPS and more than142 enterprises have either completed or in the middle of implementing TIPS. Benefits of implementing TIPS as reported by TIPS implemented enterprises are summarized as follows: (1) Company A: Implementing TIPS provides an assurance that Company A has adequate ability to protect the technology secrecy belongs to its international client. Company A thus obtained a new purchasing order worth more than NT$ 100 million. (2) Company B: TIPS assists in enhancing the level of trust on the company’s ability to protect its international client’s confidential information. A new purchasing order worth NT $ 30 million is placed by such client. (3) Company C: Through systematic IP management and IP inventory audit, Company C starts to formulate a plan for licensing out its non-core IP assets. (4) Company D: The alignment of R&D and business strategies required by TIPS ensures the accuracy of the R&D direction. The systematic way of managing the R&D projects also reduces the R&D phase to 45 days, saving R&D expenditure by 10%. (5) Company E: Implementing TIPS helps Company E to formulate a more clear and definite IP mapping strategy. Company E plans to implement TIPS into its whole corporate group in 2008. (6) Company D: Systematic IP management has reduced the number of litigation allegations. Company D plans to implement TIPS into every business unit within its corporate structure in 2008. 4. Proposed New Features of TIPS In answering to the responses receiving from the TIPS implemented enterprises, two new measures are going to be launched in 2009. First, enterprises with effective IP management system and strategies are encouraged to write up an Intellectual Property Management Report summarizing their business, R&D and IP management strategies as well as their accumulated IP assets. Second, an Experience-Sharing Platform is going to be established where enterprises can freely exchange their experiences of managing IP and how to formulate an effective IP management strategy. III. Recent Development of Taiwan’s IP Protection Environment Year 2008 can be said to be a significant year for the history of IP development in Taiwan where three completely new legislations have taken effect this year. The Intellectual Property Court Organization Act4 and the Intellectual Property Case Adjudication Act5 were both promulgated on March 28 2007 and effective as of July 1 under which a new IP Court was established with new laws to govern the adjudication of IP cases. The Patent Attorney Act which governs the qualification and registration of a new patent attorney profession was promulgate on July 11 2007 and effective as of January 11 2008. It is believed that through the commencement of these three new legislations, the accuracy, consistency as well as efficiency of resolving IP-related disputes in Taiwan are going to be significantly improved. A short introduction for each of the three new legislations is provided below: 1. New IP Court A new IP Court was established pursuant to the Intellectual Property Court Organization Act and began to hear cases on July 1 2008. This Court is given jurisdiction to hear first and second instances of a civil action, first instance of an administrative action and the second instance of a criminal action for matters concerning IP rights. For examples, interests arising under the Patent Act, the Trade Mark Act, the Copyright Act, the Trade Secret Act, the Optical Disk Act, the Species of Plants and Seedling Act, the Fair Trade Act and the Regulation Governing the Protection of Integrated Circuits Configurations. Unlike previously, where the validity issues must be determined by the administrative court, the newly established IP Court can hear and decide the validity of an intellectual property right at issue. This will significantly improve the efficiency of resolving an IP dispute. Eight experienced judges were chosen to sit on the bench of the IP Court. Since most IP related matters involve complex technical issues, nine technical examination officers with various technical backgrounds from the Taiwan Intellectual Property Office were chosen to assist and provide their technical expertise and opinions to the IP Court judges. 2. New Laws Governing IP Litigation (1) Litigation procedures The Intellectual Property Case Adjudication Act prescribes rules for adjudicating IP-related disputes. The Act recommends to try an IP infringement case through a 3-step processes. First, to determine the validity of an IP right. Second, to determine whether an IP right has been infringed and finally, to calculate the damages. The IP Court may at any state dismiss the case if it finds the IP right at issue is invalid or not infringed. In order to avoid unnecessary efforts spent on determining whether an IP right is infringed if such right is in fact invalid, the Act requires the IP Court to determine whether a right is infringed only after the invalidity defense raised by the defendant is dismissed. (2) Preliminary injunction The Intellectual Property Case Adjudication Act also introduces the criteria used by the US courts to determine whether a preliminary injunction order should be granted. Before the enactment of this new Act, the requirements for granting preliminary injunction in Taiwan were quite loose as the court could grant a preliminary injunction order without firstly reviewing the merit of the case. The new adopted US criteria require the judges to determine the likelihood of success on the merits of the case; whether a substantial threat of irreparable damage or injury would be caused if injunction is not granted; the balance of harms weighs in favor of the party seeking the preliminary injunction and the impact of the decision on public interest. As the criteria become stricter, it is believed that less preliminary injunctions will be granted. A plaintiff seeking a preliminary injunction order in the future shall put in more efforts in preparing evidences and reasons arguing that an injunction maintaining the status quo is necessary. (3) Protective orders (as to confidential information) As most IP litigation cases involve matters concerning confidential information or trade secrets, which are often crucial for the survival of an enterprise, the Intellectual Property Case Adjudication Act introduces a protective order into practice to preserve the confidentiality of specific information given by parties to the suit or a third party. A party to the suit or a third party can apply to the court to issue a protective order restraining the accessibility to the protected confidential information and restraining those who have accessed to the confidential information from disclosing it to others. Any intentional violation of the protective order is subject to a criminal liability. It is expected that by introducing the protective order, confidential information or trade secret holder may become more willing to reveal such information, which may assist improving the accuracy of resolving the disputes between parties. (4) Improved evidence preservation procedure Unlike the US court system, Taiwan, a civil law country, does not have discovery or Markman hearing procedures. Before the enactment of the Intellectual Property Case Adjudication Act, even though a judge can ask the parties to preserve evidences for the use of the trial, the judge is however, given no authority of compulsory execution. A party can refuse to comply with the judge’s request without any legal consequence. The new Act now provides compulsory execution of an evidence preservation order. Parties who are subject to the evidence preservation order are obligated to comply with the order. Furthermore, the judge may also request assistance from technical examiners or police department to provide advises. 3. New Patent Attorney Profession The Patent Attorney Act sets the requirements for becoming a qualified patent attorney in Taiwan. According to the Act, patent attorneys should be specialized in both technology and patent regulations. A candidate must firstly pass the Patent Attorney Eligibility Examination, followed by a period of prevocational training, such candidate is then able to register with the Taiwan Intellectual Property Office and join the Patent Attorneys Association. It is hoped that by introducing the new patent attorney profession, the quality of patent applications will be improved and thus reduce the ever increasing workload of patent examiners. IV. Conclusion The initiative of the TIPS project, the establishment of the IP court and the newly implemented patent attorney system all demonstrate the government’s determination to create a more sound and efficient environment for the protection of intellectual property. The overwhelming success of the TIPS project evidenced by the number of enterprises implementing the system indicates that Taiwanese companies are self-motivated, able to see the importance of intellectual property as their main source of competiveness and are ready and willing to move into the next stage of “innovative” management. It is believed that through the government’s pragmatic and foresight policies coupled with the adventurous and hard work spirits possessed by the local enterprises, Taiwan will eventually reach its goal of becoming a “green silicon island”, creating another “economic miracle”. Along with Singapore, Hong Kong and South Korea. http://www.asianinfo.org/asianinfo/taiwan/pro-economy.htm (last visited: 12/31/2008) TIPS website: http://www.tips.org.tw/ http://www.taie.com.tw/English/970520a.pdf (last visited: 12/3132008) http://www.taie.com.tw/English/970520a.pdf (last visited: 12/3132008)
South Korea’s Strategy for Reinforcing Protection of Corporate Trade Secrets-Trade Secret Protection CenterPreface In order to increase the strength of addressing issues on the infringement of intellectual property for small and medium enterprises, Korean government launched Consultative Committee for Intellectual Property Policies, leading by Presidential Council on Intellectual property and conducting with Ministry of Culture, Sports and Tourism, Korean Intellectual Property Office and Ministry of Justice, to discuss how to reinforce efficiency on handling infringement of intellecual property and work on policy for intellectual property protection. Korean government has considered trade secret as the core of corporations; however, corporations think little of it. For this reason, Korea Institute of Patent Information’s Trade Secret Protection Section, in charge of the Trade Secret Protection Center, works to avoid the outflow of business skills and trade secrets, to improve trade secret protection system, to raise awareness of trade secret protection and develops South Korea as an intellectual property power. This article aims to briefly introduce the standard management system, the diagnosis of corporate trade secret and the Trade Secret Certification Service which are schemed out by the Trade Secret Protection Center. Explanation on Major Strategies Trade Secret Diagnosis & Standard Management System In an attempt to offer a diagnosis of current problems about trade secret management in corporations for drawing up suggestions for improvements, the Trade Secret Protection Center sets up a series of questions based on the five categories: organization policy management, document access management, staff management, physical management and information technology management. There are in total 32 questions with detailed sub-questions for knowing if corporations have set up regulations and if the regulations are followed; if the regulations are not followed, if they have strategy to tackle with violation. For example, the question for internet management is to examine on how corporation manages intranet and extranet. Some possible policies are to make them separated, to do authority control or to do nothing. Here is the procedure for diagnosis: 1.Preparation Employees are asked to gather information regarding trade secret management and improvement opinions by a questionnaire. 2.Diagnosis Get the result of how well corporation has done for trade secret management by analyzing the questionnaires. 3.Plan Come up with solutions according to diagnosis. 4.Action Provide suggestions with different levels of work. Level Description A (above 81 point, Excellent) Well-formed trade secret management and great operation B (71-80 point, Good) Limited strategy with law protection for trade secret outflow C (61-70 point, Average) Weak strategy with a lack of law protection for trade secret outflow, management needed D (41-60 point, Fair ) Poor law protection for trade secret outflow, management needed badly F (below 40 point, Poor) High Risk of trade secret outflow The Trade Secret Protection Center will examine and offer staff training periodically in an effort to improve following aspects: 1.Corporation Management (1)Avoid crucial information outflow (2)Systemize issue handling and information authentication process 2.Organization Culture (1)Convey the importance of information protection (2)Decrease the incoordination among departments due to protecting key information (3)Build trade secret protection culture 3.Staff (1)Provide long-term training for trade secret protection (2)Build up ability of trade secret protection The trade secret diagnosis is considered as a way to make trade secret the key intangible asset in corporations and even to increase the competitiveness and to create profits. In addition to the trade secret diagnosis, the Trade Secret Protection Center further provides immature business with the standard management system which contains services with trade secret registration, level distinguishments, authority control, staff management, contract management and certification service. The primary goal of the standard management system is to help with production and maintenance of trade secret certification before issue occurs. When issue happens, the system is right here to submit certification of trade secret and guarantee to the court that nobody can access trade secrets except the possessor of the trade secret and the institution. In other words, the system is intended for following goals: 1.Efficientize Trade Secret Management Save time, money and manpower. Manage trade secret and related information efficiently. 2.Raise Awareness of Trade Secret Protection Among Employees Strengthen awareness and application of trade secret protection by using this system as daily work process 3.Link to the Trade Secret Certification Service Prove the original document of trade secret with the time stamp of ownership for judicial evidences. 4.Link to Information Security Solution Cooperate with various information security solutions, such as trade secret control and outflow block. Trade Secret Certification Service The Trade Secret Certification Service which is built to link to standard management system is put into practice in 2010 by Korean Intellectual Property Office. This service operates by taking the hash values from trade secret e-documents and combining them with authorized time values from trusted third-parties, thereby creating time stamps. Time stamps are then registered with the Korea Institute of Patent Information to prove the existence of original document of trade secrets, as well as and their initial dates of possession. A legal basis is built for the Trade Secret Certification Service in 2014. Amendments of Unfair Competition Prevention and Trade Secret Protection Act indicate registration and proof of the Trade Secret Certification Service and explain that an institution with more than 3 qualified staff and required facilities is eligible to be a Trade Secret Certification Service institution. The Trade Secret Certification Service is characterized by the following properties: 1.Block Trade Secret Outflow Radically Instead of the trade secret itself, this service only asks for hash value of e-records and the authorized time of ownership which make it more secure for corporations to manage trade secrets rather than maintaining under a third-party. 2.Various Electronic Records Available Various types of electronic records are available in this service, such as documents, pictures and video files which could contain production process, laboratory notebook, blueprint, marketing records, financial records, selling information and customer information and contracts. 3.Institution with Credibility It is inevitable that any piece of information could be leaked out; hence trade secret management should be executed by credible institution. For example, corporation can ask the Trade Secret Certification Service Institution to register an original document for a blueprint and get a certification. Then, the corporation can ask for new registration for modified blueprint as well. When issue occurs, the certification would be the proof of original document and time of ownership. As the Trade Secret Certification Service Institution gets legalized, the evidence of original document of trade secrets and initial dates of possession would get more convincible in court. Conclusion The trade secret diagnosis plays an essential role in understanding the level of trade secret management in corporations. The standard management system further provides with improvement and solution for trade secret protection based on diagnosis. In addition, legalized Trade Secret Certification Service also levitates the burden of proof on corporation. South Korea’s experience in trade secret management could be a good example for Taiwan to follow.
The Development of Non-Drama TV Programs in Taiwan and the Protection of Intellectual Property RightsThe Development of Non-Drama TV Programs in Taiwan and the Protection of Intellectual Property Rights With the advancement of an era of digital content, the industrial structure of the audio-visual content industry has gradually changed. The production and sales channels of audio-visual content have appeared to trend toward diversification. Emerging content channels or new media have replaced traditional TV stations. The transmission speed of digitized content is faster than the traditional media, which has become an output opportunity for the content of Taiwan in the international market. In the field of drama programs, there have been cases of successful global output, and international cooperation and export models have been gradually discovered. By contrast, non-drama TV programs of Taiwan still remain in the traditional production mode in lack of creation of new content or funds, as well as talents for production and international marketing, which leads to a vicious circle of industrial stagnation or even regression. 1. Problems with domestic non-drama TV programs Funding is the first issue that needs to be resolved. "Due to the lack of money, the only thing that can be done is producing programs that no one wants to watch." Such a condition exists day after day that causes the entire non-drama programs to be depressed, and few people are willing to invest. By contrast, in China or South Korea, the linkage of its variety shows brings about the development of the content industry, and the benefits are amazing. The willingness to spend money on the investment at its initial stage is an essential element of success. However, if there is no successful case, it may not be easy to solely rely on Taiwanese private funds. As far as the technical level of TV program production is concerned, it is particularly important to modelize TV programs if they are to be exported. The market transaction of international TV program formats has existed for many years, but the object of the transaction is the core content and production process of TV programs, that is, the TV program bible. For non-drama TV programs of our country, if it needs to sum up the core of the program in one sentence, it is not impossible to achieve. However, it still lacks the core content such as the famous tv show "THE Voice" that is sufficient to attract people. In addition, in terms of production, how to edit as well as integrate the stage and supporting design into the shooting so to present attractive programs is the relatively lacking part in TV programs of our country. As for the cultivation of talents, Taiwan has yet rarely relevant talents who are able to research, develop, and independently write the TV program bible, as well as do marketing. By contrast, China has achieved remarkable results in TV programs in recent years. They have some consultant companies that specialize in writing a TV program bible for production companies. Their R&D personnel record details by following and observing the directors, producers, and photographers, of which the records gradually become a TV program bible. Some talents in China have mastered the art of writing TV program formats. They can even directly disassemble well-known foreign formats and rewrite them as Chinese versions for production, which has achieved success. 2. Overview of international TV program formats Taking a broad view of the status of foreign TV program formats, it is found that the output of creative development is not in the countries with big entertainment industries such as the United States, the United Kingdom, and France, but in small European countries such as the Netherlands and Israel, which have a large number of output of TV program formats. The Netherlands and Israel are not countries where the television industry is prosperous. However, their TV program output occupies an important position in the global market. Some programs have even produced more than 1,000 episodes in the world, with the output to countries including the United States, China and others. Similar to Taiwan, Netherlandish and Israeli TV programs are also faced with great limitations in production funds due to the small domestic market. However, many TV programs have been created by relying on the novel program content and taking full account of the needs of the international market. In the international trade market of TV program formats, if you intend to successfully output a program, it not only contains a novel main idea, but also covers production and viewing. The output carrier of TV program formats is the "TV Format Bible". Its content includes various links of program rundown, personnel settings, camera lenses, sound effects and lighting, etc. As long as the program has a fixed existing model, no matter who plays the roles in the program, the quality of the program can be kept stable. This kind of production of non-drama TV programs according to the TV Format Bible is called TV Format. 3. Protection of huge business opportunities of formats: preservation and authorization management of intellectual property rights The core value of formats often lies in the creative part of the content. How to effectively preserve the creativity and at the same time to claim the rights are of the most concern by ideators, and the carrier of modelizing creation is the "TV Format Bible". The writing of the "TV Format Bible" is based on the thinking of TV Format structure. At the creative stage, the core content will be integrated into the production level, including how to set up the lighting and the arrangement of the camera to achieve the entertainment effect of the creative core content and other details. However, the value of the "TV Format Bible" comes from the ideation of creativity, and whether creativity is to be protected by law has been controversial since always. Judging from the results of the current judgments on disputed cases concerning the TV Format, the more specific the TV Program Bible is written, the higher chance it has to be protected. A successful variety show not only can bring about the domestic and foreign income from the show itself, but associated derivatives such as music, tourism, and peripheral products may also be able to obtain huge business opportunities due to the broadcast of the program. Therefore, although the TV Program Format is centered on its content, it actually involves issues of industrial management such as human resources, labor relations, corporate governance, taxation, fundraising, bankruptcy procedures, economic systems, and professional ethics. In addition, in aspects of commerce, marketing and management aspects, matters such as the establishment of the production team, the production process management, the acquisition and use of creation funds, and valuation are all covered in the operation of formats.
Recent Federal Decisions and Emerging Trends in U.S. Defend Trade Secrets Act LitigationI. Introduction The enactment of the Defend Trade Secrets Act of 2016[1] (the “DTSA”) marks a milestone in the recent development of trade secret law in the United States (“U.S.”).[2] Recent federal decisions and emerging trends in DTSA litigation regarding the following issues deserve the attention of Taiwanese companies who might be involved in DTSA litigation in U.S. federal courts (“federal courts”): (1) whether the DTSA displaces any other civil remedies provided by the existing trade secret laws; (2) whether a plaintiff should pay attention to any pleading standard when bringing a DTSA claim in federal court; (3) whether a federal court will easily grant an ex parte application for seizure order under the DTSA (an “ex parte seizure order”); and (4) whether the DTSA applies to trade secret misappropriations that occurred before the DTSA came into effect. This article provides insights into these developments and trends, and concludes with their implications at the end. II. The DTSA does not displace any other civil remedies provided by the existing trade secret laws, and federal courts may nonetheless turn to pre-DTSA laws and decisions for guidance The DTSA states that it does not “preempt” or “displace” any other civil remedies provided by other federal and state laws for trade secret misappropriation.[3] Prior to the enactment of the DTSA, the civil protection and remedies of trade secrets in the U.S. have traditionally been provided under state laws.[4] The DTSA provides federal courts with original jurisdiction[5] over civil actions brought under the DTSA, giving trade secret owners an option to litigate trade secret claims in federal courts.[6] As a result, the DTSA adds a layer of protection for trade secrets and creates a federal path for plaintiffs to pursue civil remedies.[7] Some commentators point out that federal courts, when hearing DTSA claims, construing DTSA provisions or analyzing DTSA claims, oftentimes turn to state laws and decisions existing prior to the enactment of the DTSA for guidance.[8] Various decisions show that federal courts tend to look to local state laws and pre-DTSA decisions when hearing DTSA claims or making decisions.[9] This suggests that pre-DTSA trade secret laws and prior decisions remain an indispensable reference for federal courts. III. A plaintiff should pay careful attention to the plausibility pleading standard when bringing a DTSA claim in federal court A plaintiff's pleading in his complaint must satisfy the plausibility pleading standard when the plaintiff brings a DTSA claim in federal court.[10] Otherwise, the plaintiff's complaint may be dismissed by the federal court.[11] Filing a motion requesting dismissal of the plaintiff's complaint[12] on the grounds of the plaintiff's failure of stating plausible claims for relief is thus a defense that a defendant may employ to defeat the plaintiff's claim in the early stage.[13] The DTSA opens the door of federal courts to trade secret plaintiffs to pursue civil remedies,[14] but the DTSA does not “guarantee unfettered access to the federal courts.”[15] When filing a DTSA lawsuit in federal court, a plaintiff must state “the grounds for the court's jurisdiction,” the plaintiff's claims (entitlement to relief), and the plaintiff's “demand for the relief sought” in his complaint.[16] The claim and statement pled by the plaintiff in his complaint must meet the “plausibility” threshold.[17] In other words, at the pleading stage, a plaintiff should plead facts sufficiently demonstrating that all prerequisites of his claim (e.g., jurisdiction and venue,[18] elements of a claim required by the DTSA,[19] etc.) are satisfied when bringing a DTSA claim in federal court.[20] For instance, in addition to claiming the existence of his trade secret, a plaintiff should state how his trade secret was misappropriated through improper means.[21] However, in the context of trade secrets, the plausibility pleading standard can be challenging to a plaintiff because it is never easy to balance between “satisfying the required pleading standard” and “avoiding disclosing too much information about the trade secret in a pleading.”[22] Let's take pleading the existence of a trade secret as an example. Under the plausibility pleading regime, a plaintiff is required to plead all relevant facts of trade secret (elements)[23] defined by the DTSA to affirmatively prove the existence of his trade secret.[24] In other words, a plaintiff needs to state sufficient facts indicating that the information in dispute has economic value while not being known to the public, and reasonable steps have been taken to maintain the secrecy of that information,[25] all of which plausibly suggest that the information in dispute qualifies as a trade secret.[26] Federal courts do not require a plaintiff to disclose his trade secret in detail in his complaint.[27] Nevertheless, a plaintiff should be able to provide the “general contour” of the alleged trade secret that he seeks to protect.[28] Federal courts would be reluctant to see that a plaintiff, merely “identify[ing] a kind of technology” or “point[ing] to broad areas of technology,” or barely asserting that the misappropriated information is confidential, then “invit[ing] the court to hunt through the details in search of items meeting the statutory definition.”[29] Instead of simply alleging that the subject matter at issue involves a trade secret, a plaintiff's complaint should contain descriptions identifying the plaintiff's trade secret.[30] For instance, in his pleading, a plaintiff has to tell what information is involved and what efforts have been made to maintain the confidentiality of such information.[31] For further example, a plaintiff should provide documents or information constituting the alleged trade secret rather than merely listing general topics or categories of information.[32] IV. Obtaining a DTSA ex parte seizure order is challenging as federal courts tend to take a conservative approach to prevent abuse of this ex parte seizure remedy Since the DTSA came into effect, federal courts rarely grant an ex parte application for seizure order under the DTSA.[33] The provision for ex parte seizure orders is a controversial part of the DTSA[34] as it allows a court, upon ex parte application and if all DTSA requirements are met, to issue a civil order “for the seizure of property necessary to prevent the propagation or dissemination of the trade secret.”[35] So far federal courts have been hesitant to order DTSA ex parte seizures and are giving great deference to the statutory text of the DTSA seizure order provision.[36] Only when a federal court finds it “clearly appears from specific facts” that certain requirements are met[37] and only in “extraordinary circumstances”[38] may a federal court issue an ex parte seizure order.[39] When being confronted with an ex parte application for seizure order under the DTSA, federal courts tend to favor a conservative approach to prevent the abuse of this ex parte seizure remedy.[40] If any alternative equitable relief is available to achieve the same purpose, federal courts will likely find it unnecessary to issue an ex parte seizure order.[41] In addition, a plaintiff's mere assertion that the defendant, if given notice, would destroy evidence or evade a court order, but without showing that the defendant “had concealed evidence or disregarded court orders in the past,” will likely be insufficient to persuade the court to issue an ex parte seizure order.[42] Furthermore, federal courts will decline to order an ex parte seizure if a plaintiff fails to meet his burden demonstrating that the information in dispute constitutes a trade secret.[43] All of the foregoing suggests that one will likely face an uphill struggle in federal court when seeking to obtain an ex parte seizure order under the DTSA.[44] Though federal courts sparingly order DTSA ex parte seizures, to date at least one federal court did issue a published DTSA ex parte seizure order, which appeared in Mission Capital Advisors, LLC v. Romaka.[45] In Romaka, the defendant allegedly downloaded the plaintiff's client and contact lists to the defendant's personal computer without the plaintiff's authorization; the plaintiff filed an ex parte motion seeking to seize some properties containing the plaintiff's trade secrets or enjoin the defendant from disclosing that information.[46] During the trial, the defendant neither acknowledged receipt of the court's prior orders[47] nor appeared before the court as ordered,[48] all of which together with other facts in Romaka convinced the court that other forms of equitable relief would be inadequate and the defendant would likely evade or otherwise disobey the court order.[49] After reviewing the facts of this case along with DTSA requirements item by item, the Romaka court found it clearly appears from specific facts that all requirements for an ex parte seizure order under the DTSA are met,[50] and thus, issued a said seizure order as requested by the plaintiff.[51] Romaka gives us some hints about what circumstances would cause a federal court to order a DTSA ex parte seizure.[52] This case tells us that evading or disregarding court-mandated actions is likely demonstrating to the court a propensity to disobey a future court order and may probably increase the likelihood of meriting a DTSA ex parte seizure order.[53] Moreover, echoing other decisions rendered by federal courts, Romaka reveals that federal courts tend to approach ex parte seizure order applications in a gingerly way.[54] Federal courts take a conservative approach toward ex parte seizure order to curtail abuse of such order[55] does not mean that no injunctive relief is available to victims of trade secret misappropriation. Injunctive relief provided by other federal laws or state laws[56] is nonetheless available to those victims.[57] As long as the facts of the case before the court meet all elements required for injunctive relief, it is not rare for federal courts to grant injunctive relief other than an ex parte seizure order.[58] V. The DTSA might apply to a pre-DTSA trade secret misappropriation that continues after the DTSA became effective The DTSA expressly states that it applies to any trade secret misappropriation that “occurs on or after the date of the enactment” of the DTSA.[59] Therefore, the DTSA does not apply to trade secret misappropriations that began and ended before the effective date of DTSA.[60] In practice, it is possible that a federal court will dismiss a plaintiff's DTSA claim if the plaintiff fails to state that the alleged trade secret misappropriations (either in whole or in part) took place after the DTSA came into effect.[61] Federal courts have begun addressing or recognizing that the DTSA might apply to trade secret misappropriations that occurred prior to and continued after the enactment date of the DTSA.[62] However, a plaintiff should “plausibly” and “sufficiently” plead in his claim that some parts of the alleged continuing misappropriation of trade secrets occurred after the DTSA became effective.[63] Some critics opine that, in the case of a continuing trade secret misappropriation that took place before and continued after the DTSA was enacted, the available recovery shall be limited to “post-DTSA misappropriation.”[64] By being mindful of the foregoing, maybe someday a plaintiff will bring a DTSA claim for a pre-DTSA misappropriation of trade secrets that continues after the DTSA is in effect.[65] In this kind of litigation, one should pay attention to whether the plaintiff has plausibly and sufficiently alleged the part of misappropriation that occurred after the enactment date of the DTSA.[66] When a plaintiff fails to plausibly and sufficiently alleges the post-DTSA misappropriation part, the defendant stands a chance to convince the court to dismiss the plaintiff's claim.[67] VI. Conclusion To sum up, recent federal decisions and emerging trends in DTSA litigation provide the following implications to Taiwanese companies who might be involved in DTSA litigation in federal court: 1. The DTSA does not preempt or displace any other civil remedies provided by other federal laws and state laws.[68] Rather, the DTSA adds a layer of protection for trade secrets and creates a federal path for plaintiffs to pursue civil remedies.[69] Federal courts tend to turn to local state laws and pre-DTSA decisions for guidance when hearing DTSA claims or making decisions.[70] Do not ignore pre-DTSA trade secret laws or prior decisions as they remain an indispensable reference for federal court. 2. A plaintiff's pleading must satisfy the plausibility pleading standard when the plaintiff brings a DTSA claim in federal court.[71] Whether the plaintiff's pleading satisfies the plausibility pleading standard is likely one of the hard-fought battles between the parties in the early stage of the litigation. The plausibility pleading regime does not require a plaintiff to disclose his trade secrets in detail in his complaint.[72] However, a plaintiff should be able to describe and identify his trade secrets.[73] 3. Seeking to secure a DTSA ex parte seizure order in federal court will likely face an uphill battle.[74] Obtaining alternative injunctive relief would be easier than obtaining a DTSA ex parte seizure. When being confronted with an ex parte application for seizure order under the DTSA, federal courts tend to favor a conservative approach to prevent the abuse of this ex parte seizure remedy.[75] Notwithstanding the foregoing, as long as the facts of the case before the court meet all elements required for injunctive relief, it is not rare for federal courts to grant injunctive relief other than an ex parte seizure order.[76] 4. The DTSA might apply to trade secret misappropriations that occurred prior to and continued after the enactment date of the DTSA.[77] When a DTSA litigation involves this kind of continuing misappropriation, one of those hard-fought battles between the parties during litigation will likely be whether the plaintiff has plausibly and sufficiently stated the part of misappropriation that occurred after the DTSA came into effect.[78] When a plaintiff fails to plausibly and sufficiently alleges the post-DTSA misappropriation part, the defendant stands a chance to convince the court to dismiss the plaintiff's claim.[79] [1] The Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 130 Stat. 376 (May 11, 2016) (mostly codified in scattered sections of 18 U.S.C. §§1836-1839 [hereinafter the “DTSA”]. [2] Mark L. Krotoski, Greta L. Burkholder, Jenny Harrison & Corey R. Houmand, The Landmark Defend Trade Secrets Act of 2016, at 3 (May 2016); Bradford K. Newman, Jessica Mendelson & MiRi Song, The Defend Trade Secret Act: One Year Later, 2017-Apr Bus. L. Today 1, 1 (2017). [3] 18 U.S.C. §1838. [4] S. Rep. No. 114-220, at 2 (2016) [hereinafter “S. Rep.”]; Kaylee Beauchamp, The Failures of Federalizing Trade Secrets: Why the Defend Trade Secrets Act of 2016 Should Preempt State Law, 86 Miss. L.J. 1031, 1033, 1045 (2017); Zoe Argento, Killing the Golden Goose: The Dangers of Strengthening Domestic Trade Secret Rights in Response to Cyber-Misappropriation, 16 Yale J. L. & Tech. 172, 177 (2014); James Pooley, The Myth of the Trade Secret Troll: Why the Defend Trade Secrets Act Improves the Protection of Commercial Information, 23 Geo. Mason L. Rev. 1045, 1045 (2016); John Conley, New Federal Trade Secret Act and Its Impact on Life Sciences, Genomics L. Rep. (Aug. 12, 2016), https://www.genomicslawreport.com/index.php/2016/08/12/new-federal-trade-secret-act-and-its-impact-on-life-sciences/; Newman, Mendelson & Song, supra note 2, at 1. [5] 18 U.S.C. §1836(c). [6] Krotoski, Burkholder, Harrison & Houmand, supra note 2, at 7; Beauchamp, supra note 4, at 1033, 1045, 1072; Lily Li & Andrea W. Paris, Help! What Are My (Immediate) Defenses to a Federal Trade Secret Claim?, 58-Sep Orange County Law. 52, 52 (2016); Newman, Mendelson & Song, supra note 2, at 1. [7] Conley, supra note 4. [8] William M. Hensley, Post-Enactment Case Law Developments under the Defend Trade Secrets Act, 59-Jul Orange County Law. 42, 44 (2017); Robert B. Milligan & Daniel Joshua Salinas, Emerging Issues In the Defend Trade Secrets Act's Second Year, Seyfarth Shaw LLP: Trading Secrets (June 14, 2017), https://www.tradesecretslaw.com/2017/06/articles/dtsa/emerging-issues-in-the-defend-trade-secrets-acts-second-year/; Jeffrey S. Boxer, John M. Griem, Jr., Alexander G. Malyshev & Dylan L. Ruffi, The Defend Trade Secrets Act – 2016 In Review, Carter Ledyard & Milburn LLP (Jan. 19, 2017), http://www.clm.com/publication.cfm?ID=5579; Rajiv Dharnidharka, Andrew D. Day & Deborah E. McCrimmon, The Defend Trade Secrets Act One Year In – Four Things We've Learned, DLA Piper (May 30, 2017), https://www.dlapiper.com/en/us/insights/publications/2017/05/defend-trade-secrets-act-four-things-learned/; Joshua R. Rich, The DTSA After One Year: Has the Federal Trade Secrets Law Met Expectations?, McDonnell Boehnen Hulbert & Berghoff LLP, Vol. 15 Issue 3 Snippets 6, 7 (Summer 2017). [9] HealthBanc International, LLC v. Synergy Worldwide, 208 F.Supp.3d 1193, 1201 (D.Utah 2016); Phyllis Schlafly Revocable Trust v. Cori, No. 4:16CV01631 JAR, 2016 WL 6611133, at *2-5 (E.D. Mo. Nov. 9, 2016); Panera, LLC v. Nettles, No. 4:16-cv-1181-JAR, 2016 WL 4124114, at *4 fn.2 (E.D. Mo. Aug. 3, 2016); Henry Schein, Inc. v. Cook, 191 F.Supp.3d 1072, 1077, 1079-1080 (N.D.Cal. 2016); Engility Corp. v. Daniels, No. 16-cv-2473-WJM-MEH, 2016 WL 7034976, at *8-10 (D. Colo. Dec. 2, 2016); M.C. Dean, Inc. v. City of Miami Beach, Florida, 199 F. Supp. 3d 1349, 1353-1357 (S.D. Fla. 2016); GTO Access Systems, LLC v. Ghost Controls, LLC, No. 4:16cv355-WS/CAS, 2016 WL 4059706, at *1 fn.1, *2-4 (N.D. Fla. June 20, 2016); Earthbound Corp. v. MiTek USA, Inc., No. C16-1150 RSM, 2016 WL 4418013, at *9-10 (W.D. Wash. Aug. 19, 2016); Kuryakyn Holdings, LLC v. Ciro, LLC, 242 F.Supp.3d 789, 797-800 (W.D. Wisc. 2017). [10] Michelle Evans, Plausibility under the Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188, 190 (2017); Eric J. Fues, Maximilienne Giannelli & Jon T. Self, Practice Tips for the Trade Secret Holder: Preparing a Complaint Under the Defend Trade Secrets Act, Inside Counsel (June 14, 2017), https://www.finnegan.com/en/insights/practice-tips-for-the-trade-secret-holder-preparing-a-complaint.html; David R. Fertig & Michael A. Betts, The Defend Trade Secrets Act: Jurisdictional Considerations—Part I, 29 No. 7 Intell. Prop. & Tech. L.J. 3, 3-5 (2017) [hereinafter “Considerations—Part I”]. [11] M.C. Dean, 199 F. Supp. 3d at 1357; Chatterplug, Inc. v. Digital Intent, LLC, No. 1:16-cv-4056, 2016 WL 6395409, at *3 (N.D. Ill. Oct. 28, 2016); Raben Tire Co. v. McFarland, No. 5:16-CV-00141-TBR, 2017 WL 741569, at *2-3 (W.D. Ky. Feb. 24, 2017). [12] Fed. R. Civ. P. 12(b). [13] Jessica Engler, The Defend Trade Secrets Act at Year One, 12 No. 4 In-House Def. Q. 20, 22 (2017). [14] Conley, supra note 4. [15] Fertig & Betts, Considerations—Part I, supra note 10, at 3. [16] Pleading the grounds for the court's jurisdiction, the plaintiff's claim (entitlement to relief), and the plaintiff's demand for the relief sought are requirements for the pleading under Article 8 of the Federal Rules of Civil Procedure (the “FRCP”). Fed. R. Civ. P. 8(a). The FRCP applies to “all civil actions and proceedings in the United States district courts.” Fed. R. Civ. P. 1. Thus, the FRCP requirements also apply to DTSA civil actions brought in federal courts. Evans, supra note 10, at 190; Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 3-4. [17] In Bell Atlantic Corporation v. Twombly, the U.S. Supreme Court interpreted Article 8(a) of the FRCP, introduced the concept of “plausibility pleading,” and established the plausibility pleading standard. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 547, 570 (2007). Under the plausibility pleading standard, a plaintiff is not required to provide “detailed factual allegations” in his complaint, but he needs to state the grounds of his claim (entitlement to relief), which should be “more than labels and conclusions.” Id. at 555, 570. At least, the plaintiff's complaint should contain enough facts showing that the plaintiff's claim is “plausible on its face.” Id. Two years after Twombly, in Ashcroft v. Iqbal the U.S. Supreme Court expressly affirmed that the plausibility pleading standard established in Twombly applies to “all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Accordingly, the plausibility pleading standard applies to all DTSA claims brought in federal courts. Evans, supra note 10, at 190; Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 3-5. It is worth mentioning that some commentators are of the opinion that federal pleading stands are often higher than those required under state laws. Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [18] Gold Medal Prods. Co. v. Bell Flavors & Fragrances, Inc., No. 1:16-CV-00365, 2017 WL 1365798, at *5-8 (S.D. Ohio, Apr. 14, 2017). See also Fertig & Betts, Considerations—Part I, supra note 10, at 4; David R. Fertig & Michael A. Betts, The Defend Trade Secrets Act: Jurisdictional Considerations—Part II, 29 No. 8 Intell. Prop. & Tech. L.J. 12, 12 (2017) [hereinafter “Considerations—Part II”]. [19] McFarland, 2017 WL 741569, at *2-3; M.C. Dean, 199 F. Supp. 3d at 1357; Digital Intent, 2016 WL 6395409, at *3. See also Fertig & Betts, Considerations—Part I, supra note 10, at 3-5. [20] Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 5; Fertig & Betts, Considerations—Part II, supra note 18, at 13-14. [21] Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [22] Id. [23] 18 U.S.C. §1839(3). [24] McFarland, 2017 WL 741569, at *2. [25] Fues, Giannelli & Self, supra note 10. [26] Engler, supra note 13, at 21-22. Providing help in identifying the trade secret in question by requesting as much detail as possible is a common point shared by the plausibility pleading standard in the U.S., and the “Case Detail Explanation Form” (to be filled out by the complainant or the victim) attached to Article 6 of the “Guideline for Handling Major Trade Secret Cases in the Prosecuting Authority” in Taiwan. However, they apply to different circumstances: 1. The plausibility pleading standard in the U.S. sets forth the threshold requirements to be met by a plaintiff in his pleading when the plaintiff brings a civil claim in federal court and applies to all federal civil actions. On the other hand, the aforementioned Case Detail Explanation Form in Taiwan is a form to be filled out by the complainant or the complainant's agent. This Form provides a reference to prosecutors for the investigation of major trade secret cases (criminal cases), but it does not serve as the basis for a prosecutor to determine whether to prosecute a case. 2. The plausibility pleading standard is not only followed by those bringing a federal civil action but also adopted by federal courts when hearing civil cases. Contrarily, the aforementioned Case Detail Explanation Form in Taiwan is provided to prosecutors as a reference for investigation. A prosecutor is not bound to prosecute a case simply based on the information provided in this Form. Likewise, this Form and the information provided therein are not binding on any court in Taiwan. A commentator noted that the Ministry of Justice in Taiwan referred to the “Prosecuting Intellectual Property Crimes (Manual)” of the U.S. Department of Justice when adopting the “Guideline for Handling Major Trade Secret Cases in the Prosecuting Authority” on April 19, 2016. “Article 6 indicates that the complainant or the victim should first fill out the Case Detail Explanation Form, which would help the prosecution authority not only figures out whether the allegedly misappropriated trade secret meets the elements of secrecy, economic value, and secrecy measures under law, but also evaluates whether it is necessary to resort to compulsive measures”. Ti-Chu Chen (陳砥柱), Guideline for Handling Major Trade Secret Cases in the Prosecuting Authority, Louis & Charles Attorneys at Law (遠東萬佳法律事務所) (July 14, 2016), http://www.louisilf.com/zh-tw/posts/2016-07-14 (last visited Dec. 31, 2017). See also Prosecuting Intellectual Property Crimes (Manual) (4th ed. 2013), available at: https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/03/26/prosecuting_ip_crimes_manual_2013.pdf. However, the cover of the “Prosecuting Intellectual Property Crimes (Manual)” expressly states that its contents are provided as “internal suggestion to Department of Justice attorneys.” Id. Therefore, the contents of this manual theoretically are not binding on any federal court. [27] Mission Measurement Corp. v. Blackbaud, Inc, 216 F.Supp.3d 915, 921 (N.D.Ill. 2016). [28] Digital Intent, 2016 WL 6395409, at *3. [29] McFarland, 2017 WL 741569, at *2; Blackbaud, 216 F.Supp.3d at 921; Ciro, 242 F.Supp.3d at 798. [30] Evans, supra note 10, at 191. Some federal court decisions show that requesting the plaintiff to provide sufficient facts describing the trade secret in question is not something newly developed following the enactment of the DTSA. Rather, it has been the position held by federal courts before the DTSA came into effect. AWP, Inc. v. Commonwealth Excavating, Inc., Civil Action No. 5:13cv031., 2013 WL 3830500, at *5 (W.D. Va. July 24, 2013); Events Media Network, Inc. v. Weather Channel Interactive, Inc., Civil No. 1:13–03 (RBK/AMD), 2013 WL 3658823, at *3 (D. N.J. July 12, 2013); Council for Educational Travel, USA v. Czopek, Civil No. 1:11–CV–00672, 2011 WL 3882474, at *4 (M.D. Pa. Sept. 2, 2011); DLC DermaCare LLC v. Castillo, No. CV–10–333–PHX–DGC, 2010 WL 5148073, at *4 (D. Ariz. Dec. 14, 2010). [31] Blackbaud, 216 F.Supp.3d at 921. [32] Ciro, 242 F.Supp.3d at 800. [33] Engler, supra note 13, at 21; Hensley, supra note 8, at 44. [34] Hensley, supra note 8, at 44; Newman, Mendelson & Song, supra note 2, at 2-3; Rich, supra note 8, at 6; Engler, supra note 13, at 20. [35] 18 U.S.C. §1836(b)(2)(A). [36] Newman, Mendelson & Song, supra note 2, at 3. [37] Under the DTSA, a court may, only in “extraordinary circumstances,” issue an ex parte seizure order when “find[ing] that it clearly appears from specific facts that”: (1) “an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate to achieve the purpose of this paragraph because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order;” (2) “an immediate and irreparable injury will occur if such seizure order is not issued;” (3) “the harm to the applicant of denying the application outweighs the harm to the legitimate interests of the person against whom seizure would be ordered of granting the application and substantially outweighs the harm to any third parties who may be harmed by such seizure;” (4) “the applicant is likely to succeed in showing that the information is a trade secret and the person against whom seizure would be ordered misappropriated the trade secret of the applicant by improper means or conspired to use improper means to misappropriate the trade secret of the applicant;” (5) “the person against whom seizure would be ordered has actual possession of the trade secret and any property to be seized;” (6) “the application describes with reasonably particularity the matter to be seized and, to the extent reasonable under the circumstances, identifies the location where the matter is to be seized;” (7) “the person against whom seizure would be ordered, or persons acting in concert with such person would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person;” and (8) “the applicant has not publicized the requested seizure”. 18 U.S.C. §1836(b)(2)(A)(ii). [38] 18 U.S.C. §1836(b)(2)(A)(i). [39] Engler, supra note 13, at 21; Michael T. Renaud & Nick Armington, DTSA and Ex Parte Seizure – Lessons from the First Ex Parte Seizure Under The DTSA, Mintz Levin Cohn Ferris Glovsky and Popeo PC (Aug. 21, 2017), https://www.globalipmatters.com/2017/08/21/dtsa-and-ex-parte-seizure-lessons-from-the-first-ex-parte-seizure-under-the-dtsa; Matthew Werdegar & Warren Braunig, One Year On: the Federal Defend Trade Secrets Act, Daily J. (Apr. 26, 2017), available at: https://www.keker.com/Templates/media/files/Articles/Keker%20(DJ-4_26_17).pdf. [40] Newman, Mendelson & Song, supra note 2, at 3; Dharnidharka, Day & McCrimmon, supra note 8; Werdegar & Braunig, supra note 39. [41] OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017, 2017 WL 67119, *2 (N.D. Cal., Jan. 6, 2017); Magnesita Refractories Company v. Mishra, CAUSE NO. 2:16-CV-524-PPS-JEM, 2017 WL 365619, at *2 (N.D. Ind. Jan. 25, 2017). [42] Baleriz Carribean Ltd. Corp. v. Calvo, Case 1:16-cv-23300-KMW, at 7 (S.D.Fla. Aug. 5, 2016). See also Renaud & Armington, supra note 39. A commentator opines that federal courts are reluctant to issue an ex parte seizure order against someone who has never concealed evidence or disregarded court orders before. Engler, supra note 13, at 21. [43] Digital Assurance Certification, LLC v. Pendolino, Case No: 6:17-cv-72-Orl-31TBS, at *1-2 (M.D.Fla. Jan. 23, 2017). [44] Engler, supra note 13, at 21; Dharnidharka, Day & McCrimmon, supra note 8. [45] Mission Capital Advisors, LLC v. Romaka, No. 16-cv-05878-LLS (S.D.N.Y. July 29, 2016). Some commentators consider Romaka the very first case in which a federal court ordered a DTSA ex parte seizure after the DTSA became effective. Renaud & Armington, supra note 39. [46] Romaka, No. 16-cv-05878-LLS, at 1-3. [47] Id. at 2. [48] Id. [49] Id. [50] In Romaka, the federal district court found the followings after reviewing the facts of this case along with the requirements under the DTSA: (1) “[a]n order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate because [the defendant] would evade, avoid, or otherwise not comply with such an order;” (2) “[a]n immediate and irreparable injury to [the plaintiff] would occur if such seizure is not ordered;” (3) “[t]he harm to [the plaintiff] of denying the application outweighs the harm to the legitimate interests of [the defendant];” (4) “[the plaintiff] is likely to succeed in showing that the information at issue is a trade secret based on [the plaintiff's] averments;” (5) “[the plaintiff] is likely to succeed in showing that [the defendant] has misappropriated [the plaintiff's trade secret] by improper means;” (6) “[the plaintiff] is likely to succeed in showing that the [defendant] has actual possession of the [plaintiff's trade secrets]; (7) “[d]espit the risk that [the defendant] would make the [plaintiff's trade secret] inaccessible to the court, or retain unauthorized copies, [the plaintiff] is proceeding on notice;” and (8) “[the plaintiff] is likely to succeed in showing, and has represented, that it has not publicized the requested seizure.” Id. at 2-4. [51] Id. at 4. In Romaka, the plaintiff also applied for the seizure of its proprietary information other than its client and contact lists. However, the Romaka court denied the plaintiff's request for the seizure of other proprietary information because the plaintiff failed to describe “with sufficient particularity” such information and related facts, such as “confidentiality and irreparable harm.” Id. [52] Renaud & Armington, supra note 39. [53] Id. [54] Newman, Mendelson & Song, supra note 2, at 3; Engler, supra note 13, at 21; Renaud & Armington, supra note 39. [55] Newman, Mendelson & Song, supra note 2, at 3. [56] For instance, the injunctive remedies available under the DTSA. 18 U.S.C. §1836(b)(3). For further example, a preliminary injunction or a temporary restraining order available under the FRCP. Fed. R. Civ. P. 65(a), (b). [57] As stated above, the DTSA does not preempt or displace any other remedies provided by other federal laws and state laws for trade secret misappropriation. 18 U.S.C. §1838. [58] Cook, 191 F.Supp.3d at 1077, 1076-1077, 1079; Daniels, 2016 WL 7034976, at *10-11, 14; Nettles, 2016 WL 4124114, at *4. See also Newman, Mendelson & Song, supra note 2, at 2-3; Rich, supra note 8, at 6; Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [59] DTSA §2(e), Pub. L. No. 114-153, 130 Stat. 376, 381-382. [60] Werdegar & Braunig, supra note 39; Krotoski, Burkholder, Harrison & Houmand, supra note 2, at 14; Engler, supra note 13, at 21. [61] Avago Technologies U.S. Inc. v. Nanoprecision Products, Inc., Case No. 16-cv-03737-JCS, 2017 WL 412524, at *9 (N.D.Cal. Jan. 31, 2017); Cave Consulting Group, Inc. v. Truven Health Analytics Inc., Case No. 15-cv-02177-SI, 2017 WL 1436044, at *5 (N.D. Cal. Apr. 24, 2017); Physician's Surrogacy, Inc. v. German, Case No.: 17CV0718-MMA (WVG), 2017 WL 3622329, at *8-9 (S.D. Cal. Aug. 23, 2017). See also Tara C. Clancy, April Boyer & Michael R. Creta, Emerging Trends in Defend Trade Secrets Act Litigation, National Law Review (Sept. 26, 2017), https://www.natlawreview.com/article/emerging-trends-defend-trade-secrets-act-litigation; Milligan & Salinas, supra note 8. [62] Cook, 191 F.Supp.3d at 1076-1079; Allstate Insurance Company v. Rote, No. 3:16-cv-01432-HZ, 2016 WL 4191015, at *1-5 (D. Or. Aug. 7, 2016); Syntel Sterling Best Shores Mauritius Limited v. Trizetto Group, Inc., 15-CV-211 (LGS) (RLE), 2016 WL 5338550, at *6 (S.D.N.Y. Sept. 23, 2016); Adams Arms, LLC v. Unified Weapon Systems, Inc., Case No. 8:16-cv-1503-T-33AEP, 2016 WL 5391394, at *6 (M.D. Fla. Sept. 27, 2016); Brand Energy & Infrastructure Services, Inc. v. Irex Contracting Group, CIVIL ACTION NO. 16-2499, 2017 WL 1105648, at *3-8 (E.D. Pa. Mar. 24, 2017); Sleekez, LLC v. Horton, CV 16–09–BLG–SPW–TJC, 2017 WL 1906957, at *5-6 (D. Mont. Apr. 21, 2017). See also Rich, supra note 8, at 8. [63] Unified Weapon Systems, 2016 WL 5391394, at *6; Horton, 2017 WL 1906957, at *5-6. See also Milligan & Salinas, supra note 8; Werdegar & Braunig, supra note 39. A recent federal court decision reveals that federal courts will likely dismiss a DTSA claim if a plaintiff makes no specific allegations other than a “conclusory allegation” of the continuing trade secret misappropriation. Hydrogen Master Rights, Ltd. v. Weston, 228 F.Supp.3d 320, 338 (D.Del. 2017). See also Engler, supra note 13, at 23. [64] Unified Weapon Systems, 2016 WL 5391394, at *6. See also Rich, supra note 8, at 8. [65] Engler, supra note 13, at 23. [66] Milligan & Salinas, supra note 8. [67] Engler, supra note 13, at 23. [68] 18 U.S.C. § 1838. [69] Conley, supra note 4. [70] Synergy Worldwide, 208 F.Supp.3d at 1201; Cori, 2016 WL 6611133, at *2-5; Nettles, 2016 WL 4124114, at *4 fn.2; Cook, 191 F.Supp.3d at 1077, 1079-1080; Daniels, 2016 WL 7034976, at *8-10; M.C. Dean, 199 F. Supp. 3d at 1353-1357; Ghost Controls, 2016 WL 4059706, at *1 fn.1, *2-4; MiTek USA, 2016 WL 4418013, at *9-10; Ciro, 242 F.Supp.3d at 797-800. [71] Evans, supra note 10, at 190; Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 3-5. [72] Blackbaud, 216 F.Supp.3d at 921. [73] Digital Intent, 2016 WL 6395409, at *3. See also Evans, supra note 10, at 191. [74] Engler, supra note 13, at 21; Dharnidharka, Day & McCrimmon, supra note 8. [75] Sultanov, 2017 WL 67119, at *2; Mishra, 2017 WL 365619, at *2; Calvo, Case 1:16-cv-23300-KMW, at 7; Pendolino, 2017 WL 320830, at *1-2. See also Newman, Mendelson & Song, supra note 2, at 3; Engler, supra note 13, at 21; Renaud & Armington, supra note 39; Werdegar & Braunig, supra note 39. [76] Newman, Mendelson & Song, supra note 2, at 2-3; Rich, supra note 8, at 6; Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [77] Cook, 191 F.Supp.3d at 1076-1079; Rote, 2016 WL 4191015, at *1-5; Trizetto Group, 2016 WL 5338550, at *6; Unified Weapon Systems, 2016 WL 5391394, at *6; Irex Contracting Group, 2017 WL 1105648, at *3-8; Horton, 2017 WL 1906957, at *5-6. See also Rich, supra note 8, at 8. [78] Milligan & Salinas, supra note 8. [79] Engler, supra note 13, at 23.
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