Log in or register
Share on LinkedInShare on LinkedIn

ARTICLE · 01 OCTOBER 2026

Trade Secret Protection And DTSA Explainer

Harness IP
Explore more from Harness IP

Not every valuable innovation is patented. For a lot of companies, the important intellectual property is a process, a formula, a customer file, or know-how that never shows up in a public filing. That information can be a trade secret. It is only a trade secret if the company treats it like one.

United StatesIntellectual Property
Matthew L. Cutler
Matthew L. Cutler

What counts as a trade secret, how to protect one, and what to do when confidential information walks out the door

Not every valuable innovation is patented. For a lot of companies, the important intellectual property is a process, a formula, a customer file, or know-how that never shows up in a public filing. That information can be a trade secret. It is only a trade secret if the company treats it like one.

This article covers what qualifies under U.S. law, what the federal Defend Trade Secrets Act lets an owner do, and the unglamorous steps that decide whether the protection holds when someone walks out with the files.

What is a trade secret?

Under 18 U.S.C. § 1839(3), a trade secret is financial, business, scientific, technical, economic, or engineering information that meets two tests. It derives independent economic value from not being generally known to, and not being readily ascertainable by, people who could profit from it. And the owner has taken reasonable measures to

We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.

Register for freeORLog in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

View source

Related Articles

Legal Intelligence Newsletters: sign up for the latest legal and regulatory news on your chosen topics

Read more about

Related Comparative Guides

See more popular content from

Article

UMG v. DistroKid: When AI Becomes A Consumer Protection Issue

Universal Music Group's lawsuit against DistroKid raises a critical question about AI disclosure in consumer markets: when does the use of artificial intelligence become material information that must be disclosed to consumers? The case centers on allegations that DistroKid distributed mass-generated AI music while creating the impression it was created by legitimate human artists, potentially violating existing consumer protection laws even without specific AI disclosure requirements.
United StatesIntellectual Property
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

U.S. Government Backs Fair Use For AI Training In OpenAI Copyright Litigation

The U.S. government has filed a Statement of Interest of the United States of America under 28 U.S.C. § 517 in the Southern District of New York multidistrict litigation over OpenAI’s use of copyrighted works to train large language models. The filing appears to be the federal government’s first direct intervention in the wave of artificial intelligence (AI) training copyright cases, and it advises the court to treat model training (separate from use of AI to generate outputs) on copyrighted text standing alone as a highly transformative fair use under current law.
United StatesIntellectual Property
Lowenstein Sandler LLP
Lowenstein Sandler LLP
Article

The Ninth Circuit Affirms Dismissal Of DMCA CMI Removal Claim Against AI Code Generator – Output Is A New Work Not A Copy Of Training Data

There was a significant ruling in the Doe v. Github case involving training of AI code generator models on open source. The United States Court of Appeals for The Ninth Circuit affirmed the district court ruling dismissing part of an action brought under the Digital Millennium Copyright Act (“DMCA”) by programmers against GitHub, Inc., and other defendants. The issues centered on whether defendants removed copyright management information (CMI) from content used to train the AI code generator models.
United StatesIntellectual Property
Sheppard
Sheppard
Article

Is This Real? Navigating AI Impersonation Under New And Existing Laws

Is this AI-generated, or is it real? As generative AI tools have become increasingly capable of creating realistic images, videos, and audio, they have also made it easier to impersonate real people without their consent. In response, states are increasingly adopting laws that impose civil and criminal liability for certain AI-generated content that replicates an individual’s identity, likeness, voice, or other personal attributes.
United StatesIntellectual Property
Wiley Rein
Wiley Rein
Article

The Trademark Scam Field Guide: Look-Alike Filing Sites, Fake USPTO Notices, And How To Get Out If You’ve Been Caught

A business decides to file a trademark. Someone on the team searches for a familiar online legal-services brand, clicks the first result, and lands on a site with a similar-sounding name, a polished design, five-star reviews, and a low flat fee. The application gets filed. Months later the business learns the “service” was not who they thought it was, the filing was signed by someone with no authority to sign it, and the USPTO has suspended the application along with hundreds or thousands of others from the same shop.
United StatesIntellectual Property
Harness IP
Harness IP
Article

AI Learning Or AI Copying? Ninth Circuit Weighs In

The Ninth Circuit held that GitHub Copilot's AI-generated code did not violate DMCA's copyright management information (CMI) removal provisions, even when output resembled source code, because the system generated new works through probabilistic patterns rather than retrieving and stripping information from existing copies. This decision establishes a critical distinction between AI systems that learn and generate versus those that retrieve and reproduce, with significant implications for how courts evaluat
United StatesIntellectual Property
Ballard Spahr LLP
Ballard Spahr LLP
Article

The Trademark Scam Field Guide: Look-Alike Filing Sites, Fake USPTO Notices, And How To Get Out If You’ve Been Caught

A business decides to file a trademark. Someone on the team searches for a familiar online legal-services brand, clicks the first result, and lands on a site with a similar-sounding name, a polished design, five-star reviews, and a low flat fee. The application gets filed. Months later the business learns the “service” was not who they thought it was, the filing was signed by someone with no authority to sign it, and the USPTO has suspended the application along with hundreds or thousands of others from the same shop.
United StatesIntellectual Property
Harness IP
Harness IP
Article

You Received A Patent Troll Demand Letter Or Lawsuit? A Plain-English Playbook

When a non-practicing entity accuses your company of patent infringement, understanding the economics behind demand letters and lawsuits is critical to mounting an effective defense. This guide explains the patent troll business model, outlines immediate steps to take upon receiving a demand, and details strategic options including inter partes review, motion practice, and fee-shifting under Section 285.
United StatesIntellectual Property
Harness IP
Harness IP
Article

Tangled In Standing: Who Gets To Challenge A Trademark?

When a consumer challenged a trademark registration for "RAPUNZEL" on grounds that the fairytale character's name belongs in the public domain, federal courts ruled she lacked standing to oppose it. The Supreme Court's denial of review settles a fundamental question about who can protect the public domain at the USPTO—and the answer excludes ordinary citizens, even when raising legitimate concerns about genericness and cultural heritage.
United StatesIntellectual Property
Harness IP
Harness IP
Article

South Korea’s Priority Examination Process For Green Energy Patents

Following the termination of the US Climate Change Mitigation Pilot Program, patent applicants seeking expedited examination of green technology applications can turn to South Korea's priority examination system. The Ministry of Intellectual Property offers accelerated processing for patent applications in five predefined green energy categories, with first actions typically issued within two to three months.
South KoreaIntellectual Property
Harness IP
Harness IP