Esha Bandyopadhyay Authors Article in Intellectual Property & Technology Law Journal, "The DTSA Ex Parte Civil Seizure Remedy: Constitutional or Not?"

Fish principal Esha Bandyopadhyay and associate Markus Weyde recently wrote an article for Intellectual Property & Technology Law Journal discussing if the DTSA ex parte civil seizure remedy is constitutional or not.

In recent years, innovators have increasingly been turning to trade secret protection for their creations. With increased limitations on the patentability of inventions, particularly technologies in the software space, trade secrets have become an attractive alternative to patents.

In May 2016, President Obama signed the Defend Trade Secrets Act (DTSA) into law, creating a federal cause of action for trade secret misappropriation. Prior to the enactment of the DTSA, trade secret misappropriation actions were governed by state law. In addition to providing the obvious benefit of federal question jurisdiction, the DTSA offers a new potential remedy, ex parte civil seizure, to "prevent the propagation or dissemination of the trade secret that is the subject of the action"1 and the tampering with or destruction of evidence. This particular remedy is unique to the DTSA and not available under any state's legislation. It provides plaintiffs with the opportunity to file an ex parte request with the court to obtain a seizure order. If the court issues the seizure order, U.S. Marshals can be dispatched to seize the evidence at issue without notice to the defendant.

Click here to read the full article (PDF).