[Update] Defend Trade Secrets Act of 2016: Markup and Commentary

by Dennis Crouch

President Obama has signed the Defend Trade Secrets Act of 2016 (DTSA) into law.  The new law creates a private cause of action for trade secret misappropriation that can be brought in Federal Courts and with international implications. I have created a mark-up (with commentary) of the new law that shows how the DTSA’s amendments to the Economic Espionage Act (EEA).

We have covered the DTSA legislation and legislative process in several Patently-O Posts, including the following:


18 thoughts on “[Update] Defend Trade Secrets Act of 2016: Markup and Commentary

    1. 5.1

      Your whimpering about trade secrets might have some value if patent applicants actually disclosed algorithms for their inventions. Instead they get to hand wave at the outline of a box, recite a configuring incantation, and get a patent while keeping the magic a secret.

      1. 5.1.1


        As with any other (and every other) art, the patent application is NOT (and never has been) an engineering blue print.

        If you are “correct” about “keeping the magic a secret,” then the proper part of the law to use is 112.

        Methinks that your “bone to pick” is a bit TOO particular, and that if you recognized that the “lack of explicitness to the degree that you want” applies to every patent in every art field.

        The “difference” too IS a function of the particular art unit, and varies directly with the designation of PHOSITA – and hence my pointing out that when the Court hyper-empowered PHOSITA, they ALSO permitted MORE of what you are calling “hand wave and recite incantation.”

        You want to “blame” somebody? Look to the direct side effects of the Supreme Court meddling with the statutory law.


          If you only have a rhetoric hammer, everything looks like a nail.

          My comment was specific the NWPA’s mewling about innovation being stifled by companies hiding their innovation as trade secrets. The fact is that this is already in effect in the software arts.


            My rhetoric hammer” fits the nail that YOU provided.

            Don’t like it? Don’t use nails.

            (the fact that Trade Secrets are currently used – and not just in the software arts is just not material to the SHIFT that will be seen)


              My comment had nothing to do with validity. You’re tilting at windmills old man.

              Now you’re got a relevant comment, suggesting that there will be some SHIFT. Anyone who reads software patents on a regular basis knows that they generally provide no secret sauce. So, you’re just wrong because it is not possible to disclose less than nothing.


                You are still using nails.

                My comment of 5.1.1 still fits what you are saying.

                1. My comment was based on the real world context where applications that don’t disclose the magic are valid.

                  How you make that into a comment about validity is baffling.

                  Valid patents get issued all the time without disclosing the real magic.

                  So your mewling about the evils of trade secrets is self srrving absurdity. There is no downside to anyone other than the middlemen who find themselves cut out of the loop.

                2. Your comment was based on some mistaken notion that a patent application is an engineering blueprint.

                  My reply at 5.1.1 hits YOUR nail squarely on the head.


                3. Bob no substantive response from you regarding the points made by me below and above. You are factually wrong and just yapping with no substance.

      2. 5.1.2

        Bob, you have no idea what you are talking about. The patent applications combined with one skilled in the art knows does enable the invention.

        Anyone that reads software applications regularly knows in the aggregate they keep all the information public both in the application and in the ability of the inventors to publish journal articles and technical magazines to publish articles and interview the inventors.

        Any suggestion that the quid pro quo is not being met is simply and demonstrable false.

        Moreover, Bob, I am old enough that I was a software engineer that worked with the latest and greatest start-ups in the 1980’s. Trade secret was a horror show. It enabled companies to lock you down and make it hard for you to move. You weren’t allowed to talk about what you did. And companies like Microsoft had secrets and super secrets and super secure rooms where super secrets were kept. Nightmare. Patents freed us and now we are going back.

        Not sure what axe you may have to grind, but if you are actually a real practitioner (not paid blogger or some low life chasing money), then if you educate yourself, you will see that patents have been amazing for inventors and employees. Wonderful. And wonderful for innovation because they keep everything out in the open and let people move to other companies and continue work on nearly the same thing.

  1. 4

    Enfish out today finding software-ish claims 101-elligible. link to cafc.uscourts.gov

    “Nor do we think that claims directed to software, as opposed to hardware, are inherently abstract and therefore only properly analyzed at the second step of the Alice analysis. Software can make non-abstract im-
    provements to computer technology just as hardware improvements can, and sometimes the improvements can be accomplished through either route. We thus see no reason to conclude that all claims directed to improve-
    ments in computer-related technology, including those directed to software, are abstract and necessarily an a-lyzed at the second step of
    Alice, nor do we believe that Alice so directs.”

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