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Unpublished Paper
ExpressO (2013)
  • Kwangho Jang

According to recent surveys, businesses prefer trade secret protection to patent protection. While many scholars have debated about issues of extraterritoriality of patents, copyrights, and trademarks, scholars relatively alienated the question of the geographic scope of trade secret law. In the absence of clear guidance from either the Supreme Court or both state and federal legislatures, some courts ruled in favor of extending the scope of state trade secret law to conduct abroad. This practice can cause problems in foreign relations, such as the foreign offense or interference with the sovereignty of the foreign nations. To avoid unintended conflicts with foreign nations, issues in the current extraterritorial application of state trade secret law and possible remedies for the issues should be discussed.

This Note discusses the geographic scope of trade secret law from the perspective of intellectual property rights and suggests a new approach to reaching foreign conduct. The courts should exercise restraint in extraterritorial application of trade secret law in light of other concerns, such as the presumption against extraterritoriality, choice-of-law issues, and practical problems in enforcing injunctions. First, the presumption against extraterritoriality is applicable to state law. Second, courts’ reliance on choice-of-law analysis deludes courts into disregarding extraterritoriality issues. Third, implementing world-wide injunctions is practically difficult.

Furthermore, this Note also addresses remedies to resolve such issues through legislative, judicial, and political branch action. These remedies include enacting a federal trade secret statute at the legislative level, adopting the presumption against extraterritoriality or the ITC approach at the judicial level, and having treaties or agreements at the political level. Through enacting a federal trade secret statute and adopting the presumption or the ITC approach, courts will be able to make more predictable, uniform, and restrained judgments. Once improved trade secret protection is ensured by treaties, agreements, or sanctions, the need to apply U.S. trade secret law abroad will decrease.

  • state trade secret law,
  • presumption against extraterritoriality,
  • choice of law,
  • intellectual property
Publication Date
November 8, 2013
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