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Is it Too Late to File a Misappropriation of Trade Secrets Suit?

June 29, 2020

Is it Too Late to File a Misappropriation of Trade Secrets Suit?

June 29, 2020

Home » Resources » IP Law Essentials

A statute of limitations sets forth the latest date by which a party must file a lawsuit after some triggering event.  As with most other cases, trade secret claims are subject to statutes of limitations.  The result can be costly: if you assert a trade secret claim after the statute of limitations has passed, it is subject to dismissal.  Thus, it is important for trade secret owners to be proactive when investigating potential trade secret misappropriation and bring claims in a timely manner.  Conversely, if accused of misappropriation of trade secrets, the statute of limitations can be a powerful defense leading to an early dismissal.

What is the statute of limitations for a misappropriation of trade secrets claim?

It is important to check the applicable state law, but generally you have three years from when you first discover trade secret misappropriation to file suit.  The Defend Trade Secrets Act (“DTSA”) provides a cause of action for trade secret misappropriation in federal courts.  Under the DTSA, you must bring an action no later than three years after the alleged misappropriation “is discovered or by the exercise of reasonable diligence should have been discovered.”  18 U.S.C. § 1836(d).  The Uniform Trade Secrets Act (“UTSA”), upon which most state trade secret acts are based on, similarly provides that “[a]n action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.”  UTSA § 6.3.  However, as adopted by individual states, the statute of limitations for trade secret claims varies.  For example, the statute of limitations in Alabama is only two years, whereas it is five years in Illinois and six years in New Jersey.

What level of suspicion or knowledge rises to the level of “discovery” of trade secret misappropriation?

The “discovery rule” provides that the statute of limitations does not begin to run until the alleged victim discovers or reasonably should have discovered the injury.  This makes sense because wrongdoers may take affirmative measures to hide their actions, hindering the ability to detect misappropriation.

Under the “discovery rule,” diligence is required.  The statute of limitations starts to run when a company has either “actual notice” or “inquiry notice” of the trade secret misappropriation.  For example, one court found that a plaintiff company was on “inquiry notice” of potential trade secret misappropriation when the defendant breached its duty to return plaintiff company’s confidential documents, which was required under an NDA between the parties.  Thus, the statute of limitations for the trade secret claim was triggered at the time of the breach of the NDA.

On the other hand, a former employee joining a competitor company or the commercial launch of a competing product, without more, is unlikely to constitute “inquiry notice” that triggers the statute of limitations.  For example, one court reasoned that the statute of limitation clock did not start running when a former employee joined the defendant company because the plaintiff could not have known about the defendant’s unauthorized use of its trade secrets until discovery, particularly because the defendant had concealed its wrongdoing by denying all allegations of misappropriation in an earlier letter.  See Best Practices: How to Protect Trade Secrets From Loss Through Departing Employees.

What is fraudulent concealment?

The fraudulent concealment doctrine “tolls” the application of the statute of limitation because the defendant has concealed its misconduct.  The concept of fraudulent concealment, however, does not come into play when a plaintiff is already on notice, either actual or constructive, of the alleged misappropriation.  One court recently noted that because the plaintiff was already on notice of the alleged misappropriation, the defendant’s efforts to conceal its wrongdoing, however egregious, did not toll the statute of limitations.


For trade secret owners, you should promptly investigate any concerns about misappropriation of trade secrets.  For individuals or companies accused of misappropriation of trade secrets, you should investigate when the statute of limitations was triggered as it can be an effective way to resolve trade secret litigation.

More questions? Contact the authors or visit Fish’s Intellectual Property Law Essentials.

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.

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Katherine D. Prescott | Principal

Katie Prescott is a principal in the Silicon Valley office of Fish & Richardson P.C. Her practice focuses on patent and trade secret litigation with an emphasis on software, network and internet technologies. Ms. Prescott has experience before U.S. district courts nationwide and she has handled all aspects of litigation, including pre-suit...

Qiuyi Wu | Associate

Qiuyi (Autumn) Wu is a litigation associate in the Boston office of Fish & Richardson P.C. Her practice focuses on patent litigation across a wide range of technologies, primarily in the fields of biotechnology, life sciences, and mechanical arts. Autumn also has experience with Section 337 investigations at the International Trade...