Application of Patent Law Damages Analysis to Trade Secret Misappropriation Claims: Apportionment, Alternatives, and Other Common Limitations on Damages

Abstract

This article attempts to demonstrate how principles that have been developed in the context of patent infrignment claims can be adapted and applied in the context of trade secret claims. The article maintains that courts should look more readily to the well-developed body of patent law in fashioning the rules governing damages in trade secret misappropriation cases. Adoption of such principles, modified where necessary to better fit the trade secret context, is likely to have the salutary effect of increasing the scrutiny given trade secret damages claims - weeding out those claims that are not sufficiently reliable to justify their submission to the jury.

Keywords: Trade secret, trade secret misappropriation, damages, patent, apportionment, alternatives