D. Independent Development

• Library: The Economic Espionage Act: A Practitioner's Handbook (ABA) (2017 Ed.)

D. Independent Development

In contrast to patent protection, which protects the owner against any use of a patented idea, trade secret law protects only against the wrongful use of the information.⁷⁴ The Supreme Court has made clear that trade secret law "does not offer protection against discovery by fair and honest means," including "independent invention."⁷⁵ just as a defendant in a civil trade secrets action who shows independent invention will be found not to have made wrongful use of the trade secret, an EEA defendant who shows independent invention will not be found to have "convert[ed]," "st[olen]" or obtained the trade secret "without authorization," in violation of the EEA.⁷⁶

The burden to show independent development, which rests with the defendant,⁷⁷ may be met with "concrete evidence showing how the information was developed."⁷⁸ For example, in American Paper & Packaging Products, Inc. v. Kirgan,⁷⁹ a manufacturer of custom packaging material alleged that two former employees misappropriated trade secrets in the form of customer lists. However, the defendants were able to show that after their termination by the plaintiff, they traveled to "areas zoned for industry," making lists of what appeared to be manufacturing companies, after which they made "cold calls." The court found that, although the information at issue—lists of manufacturers needing shipping supplies—may not have been generally known to the public, it was "readily ascertainable" to others in the business."⁸⁰

By contrast, the court in Detsis v. Victoria's Secret Stores, Inc. ,⁸¹ granted summary judgment to a trade secrets plaintiff where the defendant was unable to establish its claim of independent development. In 2001, Elizabeth Detsis met with a representative of victoria's...