Post-TianRui: A Survey of Trade Secret Litigation and Extraterritoriality in the ITC

AIPLA Spring Meeting

14 May 2021

In 2011, the Federal Circuit in TianRui Grp. Co. v. Int’l Trade Comm’n affirmed the International Trade Commission’s (“ITC”) authority to look to extraterritorial conduct of a respondent to determine whether that respondent misappropriated trade secrets under 19 U.S.C.A. § 1337 (“Section 337”). In 2016, the Defend Trade Secrets Act (“DTSA”), which created a federal cause of action for trade secret misappropriation, was made into law. The law is clear that the ITC can find a violation of Section 337 based on misappropriation of trade secrets conducted abroad. The DTSA adds yet another avenue to assert such claims. Yet the number of trade secret claims in the ITC, while growing, remains low.

This paper explores recent trends in trade secret misappropriation in the ITC and recommends best practices. Based on a survey of 16 recent ITC investigations with trade secret claims, a few trends appear. First, the ITC has consistently considered extraterritorial conduct as evidence of trade secret misappropriation under Section 337. Second, there is a growing acceptance of the DTSA as a basis for trade secret misappropriation claims in the ITC. Third, at least one Administrative Law Judge (“ALJ”) has interpreted TianRui to require rejecting comity arguments in motions to terminate. This gradual expansion of the ITC’s jurisdiction, coupled with a general increase in trade secret investigations in the ITC, indicates that companies should be prepared to bring or respond to trade secret misappropriation claims in this forum. 

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