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UTSA_NEW.STA
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/* BBS LEGAL GUIDE COMMENTARY: The text of the 1985 Amended
Uniform Trade Secrets Act follows, with comments. Please bear in
mind that this is the UNIFORM TEXT, and that each state has made
changes to the uniform text. This text is quite important for
employer/employee relations since it defines protection of trade
secrets in the absence of contract terms and provides the sole
source of criminal penalties for unlawful breach of trade
secrets. */
SECTION 1
As used in this [Act], unless the context requires otherwise:
(1) "Improper means" includes theft, bribery,
misrepresentation, breach or inducement of a breach of a duty to
maintain secrecy, or espionage through electronic or other means;
/* The list of "improper means" is not all-inclusive. */
(2) "Misappropriation" means:
(i) acquisition of a trade secret of another by a
person who knows or has reason to know that the trade secret was
acquired by improper means; or
(ii) disclosure or use of a trade secret of another
without express or implied consent by a person who
(A) used improper means to acquire knowledge of
the trade secret; or
(B) at the time of disclosure or use, knew or had
reason to know that his knowledge of the trade secret was
(I) derived from or through a person who had
utilized improper means to acquire it;
(II) acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its use; or
(III) derived from or through a person who owed
a duty to the person seeking relief to maintain its secrecy or
limit its use; or
(C) before a material change of his [or her]
position, knew or had reason to know that it was a trade secret
and that knowledge of it had been acquired by accident or
mistake.
(3) "Person" means a natural person, corporation, business
trust, estate, trust, partnership, association, joint venture,
government, government subdivision or agency, or any other legal
or commercial entity.
/* Note that the government is supposed to keep trade secrets
secret. However, don't take this too seriously since in many
states you won't be able to sue to enforce your supposed right.
There are many hazards when dealing with the government as a
customer for software or computer services, including "freedom of
information" acts that may make a contract supposedly keeping
your code secret a nullity and useless. */
(4)"Trade secret" means information, including a formula,
pattern, compilation, program, device, method, technique or
process, that:
(i) derives independent economic value, actual or
potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons, who can
obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
/* Trade secrets under this definition include confidential
information not based on inventions or engineering such as
customer or prospect lists, or other customer information. */
SECTION 2. INJUNCTIVE RELIEF
(a) Actual or threatened misappropriation may be enjoined.
Upon application to the court, an injunction shall be terminated
when the trade secret has ceased to exist, but the injunction may
be continued for an additional reasonable period of time in order
to eliminate commercial advantage that otherwise would be derived
from the misappropriation.
(b) In exceptional circumstances, an injunction may
condition future use upon payment of a reasonable royalty for no
longer than the period of time for which use could have been
prohibited. Exceptional circumstances include, but ar are not
limited to, a material and prejudicial change of position prior
to acquiring knowledge or reason to know of misappropriation that
renders a prohibitive injunction inequitable.
(c) In appropriate circumstances, affirmative acts to
protect a trade secret may be compelled by court order
3. DAMAGES
(a) Except to the extent that a material and prejudicial
charge of position prior to acquiring knowledge or reason to know
of misappropriation renders a monetary recovery inequitable, a
complainant is entitled to recover damages for misappropriate.
Damages can include both the actual loss caused by
misappropriation and the unjust enrichment caused by actual loss.
In lieu of damages measured by any other methods, the damages
caused by misappropriation may be measured by imposition of
liability for a reasonable royalty for a misappropriator's
unauthorized disclosure or use of a trade secret.
(b) if willful and malicious misappropriation exists, the
court may award exemplary damages in an amount not exceeding
twice any award made under subsection (a).
4. ATTORNEY'S FEES
If (i) a claim of misappropriation is made in bad faith,
(ii) a motion to terminate an injunction is made or resisted in
bad faith, or (iii) willful and malicious misappropriation
exists, the court may award reasonable attorney's fees to the
prevailing party.
5. PRESERVATION OF SECRECY
In an action under this [act], a court shall preserve the secrecy
of an alleged trade secret by reasonable means, which may include
granting protective orders in connection with discovery
proceedings, holding in-camera hearings, sealing the records of
the action, and ordering any person involved in the litigation
not to disclose an alleged trade secret without prior court
approval.
6. STATUTE OF LIMITATIONS.
An 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. For the
purposes of this section, a continuing misappropriation
constitutes a single claim.
7. EFFECT ON OTHER LAW.
(a) Except as provided in subsection (b), this [act] displaces
conflicting tort, restitutionary, and other law of this state
providing civil remedies for misappropriation of a trade secret.
(b) this act does not affect:
(1) contractual remedies, whether or not based upon
misappropriation of a trade secret;
(2) other civil remedies that are not based upon
misappropriation of a trade secret; or
(3) criminal remedies, whether or not based upon
misappropriation of a trade secret.
8. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
This act shall be applied and construed to effectuate its
general purpose to make uniform the law with respect to the
subject of this act among states enacting it.
9.SHORT TITLE.
This act may be cited as the Uniform Trade Secrets Act.
10. SEVERABILITY.
If any provisions of this act or its application to any
person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of the act which can be
given without the invalid provision or application, and to this
end the provisions of this act are severable.
11. TIME OF TAKING EFFECT.
This act takes effect on __________, and does not apply to
misappropriation occurring prior to the effective date. With
respect to continuing misappropriation that began prior to the
effective date, the act also does not apply to the continuing
misappropriation that occurs after the effective date.
12. REPEAL.
The following acts and parts of acts are repealed
(1)
(2)
(3)
LIST OF STATES ADOPTING:
ALABAMA
ALASKA
ARIZONA
ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE
DISTRICT OF COLUMBIA
FLORIDA
HAWAII
IDAHO
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MINNESOTA
MISSISSIPPI
MONTANA
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW MEXICO
NORTH DAKOTA
OKLAHOMA
OREGON
RHODE ISLAND
SOUTH DAKOTA
UTAH
VIRGINIA
WASHINGTON
WEST VIRGINIA
WISCONSIN