On September 1, 2017, changes to the Texas Uniform Trade Secret Act (TUTSA) went into effect.  These changes were designed to accomplish two goals: (1) incorporate certain provisions of the new federal Defend Trade Secrets Act (DTSA) to eliminate confusion and avoid possible forum shopping between state and federal courts and (2) codify the Texas Supreme Court’s holding in In re M-I, LLC, which sets forth the factors that a court must analyze in order to prohibit a party from participating in certain portions of a trade secrets case.

The September 2017 issue of the Texas Bar Journal published an article outlining these changes to TUTSA. Continue Reading Texas Bar Journal Publishes Trade Secrets Article by Brackett & Ellis Attorneys

Often, in trade secrets and other types of commercial litigation, the courts will enter protective orders so that the parties can exchange trade secret or proprietary information without losing the “secret” nature of the information.  This exchange of information is generally necessary so that the parties can understand the nature of the dispute.  For instance, if the claim is that a competitor misappropriated a customer list, the plaintiff might have to produce the customer list that it claims was misappropriated.  Additionally, the parties often exchange confidential financial information in order to prove their damages. Continue Reading When “Attorneys’ Eyes Only” Doesn’t Mean “Attorneys’ Eyes Only”

Law360 recently published an article about the Fifth Circuit case of BWP Media USA, Inc. v. T&S Software Associates, Inc.   The issue in BWP Media was whether “volitional conduct” is required for direct copyright infringement.   Defendant T&S Software Associates hosted an internet forum in which users posted images that infringed copyrights owned by Plaintiffs BWP Media USA and National Photo Group.  The plaintiff sued T&S for direct and secondary copyright infringement, but the trial court granted summary judgment for T&S.  Continue Reading Brackett & Ellis Copyright Case Featured in Law360 Article

The Texas Uniform Trade Secret Act’s definition of misappropriation is complicated, and it is frequently misinterpreted by both the courts and litigants.  In this post, I explore the first of the six alternative paths to liability: Continue Reading The Six Paths to Liability Under the Texas Uniform Trade Secret Act – Part 1

Last February, I had the privilege of speaking at the State Bar of Texas’s Intellectual Property Law Workshop.  This year’s theme was IP Issues with Technology Startups, and my speech was Protecting your Startup Client’s Intellectual Property and Customer Relationships: The Intersection of Trade Secrets, Confidentiality Agreements, and Covenants Not to Compete.  As a springboard for my speech, I discussed the pilot episode of Silicon Valley, which, as others have pointed out, has all sort of intellectual property issues to explore.  Continue Reading Tips for Protecting Your Startup’s Intellectual Property and Customer Relationships: Lessons from HBO’s Silicon Valley

My colleague Joe Cleveland and I have written two new articles on Texas trade secrets law.  The articles were recently published in the State Bar of Texas Intellectual Property Law Section’s Tipsheet newsletter.  You can read the articles below: Continue Reading Two New Brackett & Ellis Trade Secrets Articles Appear In IP Law Section’s Tipsheet Newsletter

On May 5, 2017, the Austin Court of Appeals issued a first of its kind opinion holding that Texas Citizens Participation Act (TCPA)—also known as the Texas anti-SLAPP statute—can potentially be invoked to successfully defend against Texas Uniform Trade Secrets Act (TUTSA) claims.  In Elite Auto Body LLC, d/b/a Precision Auto Body v. Autocraft Bodywerks, Inc., No. 03-15-00064-CV, 2017 WL 1833495 (Tex. App.—Austin May 5, 2017, no pet. h.), plaintiff Autocraft Bodywerks sued Precision (Elite) Auto Body and several former Autocraft employees alleging that the employees provided Precision with Autocraft’s trade secrets.  In particular, Autocraft alleged: Continue Reading New Case States that Texas’s Right of Association Trumps the Texas Uniform Trade Secrets Act

As you know from my previous blog posts, the Texas House and Senate have been considering certain amendments to the Texas Uniform Trade Secret Act (TUTSA).  These amendments were the product of months of study by a working group consisting of members of the Trade Secrets Committee of the Intellectual Property Section of the State Bar of Texas and the Business Law Section of the State  Bar of TexasContinue Reading Texas House and Senate Pass Legislation to Amend the Texas Uniform Trade Secret Act

In my March 26, 2017 post, I argued that under the Texas Uniform Trade Secret Act (TUTSA), an applicant for injunctive relief was not required to establish the common law element of a “probable, imminent, and irreparable injury.”  Instead, the applicant only had to prove “actual or threatened misappropriation.”  The applicant in Baxter & Associates, L.L.C. v. D & D Elevators, No. 05-16-00330-CV, 2017 WL 604043 (Tex. App.—Dallas Feb. 15, 2017, no pet. h.), made the same argument, but before the Fifth Court of Appeals could decide the issue, it found that the applicant had failed to prove its customer list was a trade secret under TUTSA. Continue Reading When a Customer List is Not a Trade Secret

In my previous posts, I have discussed the House and Senate bills to amend the Texas Uniform Trade Secret Act (TUTSA).  On Thursday, April 20, my colleague Joe Cleveland testified before the Senate State Affairs committee in support of the proposed TUTSA amendments.  His prepared remarks are below: Continue Reading Texas Senate Holds Hearing on TUTSA Amendments