Today marks five years since the passage of the Defend Trade Secrets Act, which grants parties the right to pursue trade secret claims and damages in federal courts instead of only state courts. While damages available to a plaintiff under federal law are similar to damages under state law, Ocean Tomo Managing Director and financial damages testifying expert Justin Lewis reveals differences depending on the venue in his Expert Testimony Insights on Trade Secrets post to the Ocean Tomo Insights blog.
Reductions in technology life cycles combined with the inherent uncertainties of patent prosecution result in greater emphasis on protecting innovation through secrecy. Defending intellectual property (IP) in disputes, particularly those involving trade secrets, includes complex economic issues that must be clearly communicated to judges and juries. Ocean Tomo testifying experts understand that trade secret remedies and their method of calculation can differ from other forms of IP and that the state-of-the-art in this regard continues to evolve based on case law which is often unique to a given State. Examples of such differences can include:
- Calculations of actual loss and unjust enrichment
- Apportioning value to particular trade secrets or groups of trade secrets
- The appropriateness of incremental versus fully allocated cost determinations
- A reasonable royalty measure of damages based on, e.g., modified Georgia-Pacific factors
Ocean Tomo has been at the forefront of advancing the most accurate and complete trade secret damages determinations based on peer-reviewed methods, either from known academics and professionals or of Ocean Tomo’s own development. Ocean Tomo’s track record includes some of the largest trade secret damages awards and the nation’s most sophisticated trade secret owners.