Severed Knowledge: Negative Trade Secrets Through The Lens Of Compartmentalized Memory

In Short

The Background: Since the passage of the Defend Trade Secrets Act ("DTSA") in 2016, courts have increasingly addressed the nuance of negative trade secrets—information about what does not work, often referred to as "negative know-how."

The Result: Courts require negative trade secret claims to be pleaded with particularity, rejecting claims that are broad or vague. When properly pleaded, plaintiffs may be entitled to "head start damages," which compensate for the competitive advantage gained by avoiding failed experiments or research.

Looking Ahead: Future litigation will likely focus on the tension between protecting negative know-how and ensuring fair employee mobility, with courts further refining the standards for particularity and damages. Ongoing judicial interpretation would shape how negative know-how is distinguished from general employee knowledge and experience.