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Keeping the Best Kept Secrets: Mandatory
Minimum Sentencing for Trade Secret
Theft Under the Economic Espionage Act
Danielle K. Byrdsong∗
ABSTRACT
On December 28, 2012, the Theft of Trade Secrets Clarification Act of
2012 (the Act) was enacted. The Act broadens the scope of the Economic
Espionage Act by providing more protection for trade secrets. Despite the
broadened scope of the Act, criminal penalties for trade secret theft may
still be inadequate given the constant threat U.S. corporations face in light
of the global landscape in which they do business. Mandatory minimum
sentencing for the theft of trade secrets could be a practicable solution to
this problem.
I.
INTRODUCTION
Legal protection for intellectual property rights has its roots in the U.S.
Constitution.1 New technologies have overcome traditional barriers to international business and global commerce by making it easier for criminals
to steal trade secrets from anywhere in the world.2 U.S. Attorney General
Eric Holder warned: “[t]here are only ‘two categories’ of companies affected by trade secret theft—‘those that know they’ve been compromised and
those that don’t know yet.’”3 Trade secret theft costs American companies
∗
Candidate for Juris Doctor, New England Law | Boston (2015); B.S., Biology,
Chemistry Minor, Simmons College (2007). I would like to thank my husband Jermaine and
my mother Feleshia for their unwavering love and support.
1.
See U.S. CONST. art. I, § 8, cl. 8 (stating that Congress shall have the power “[t]o
promote the Progress of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and Discoveries”).
2.
Attorney General Eric Holder Speaks at the Administration Trade Secret Strategy
Rollout, U.S. DEPARTMENT OF JUST. (Feb. 20, 2013), http://www.justice.gov/iso/opa/
ag/speeches/2013/ag-speech-1302201.html [hereinafter Attorney General Holder Speaks].
3.
Id.
421
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billions of dollars every year.4 Trade secret theft can also force companies
to “lay off employees, to close factories, to lose sales and profits, to experience a decline in competitive position and advantage—or even to go out of
business.”5
This Note explores the ways in which mandatory minimum sentences
could improve the effectiveness of the current protections against trade secret theft and argues that mandatory minimum sentences should be implemented as a criminal penalty for this type of crime. Part II of this Note provides a brief account of the history of mandatory minimum sentencing in
the U.S., the legislative history of the Economic Espionage Act (EEA), and
the Theft of Trade Secrets Clarification Act of 2012. Part III discusses the
importance of trade secret theft protection and provides an overview of the
current penalties for trade secret theft, while Part IV proposes a framework
in which mandatory minimum sentences can be used to supplement existing criminal penalties. Part V concludes that mandatory minimum sentencing for intellectual property crimes would become a useful weapon to combat trade secret theft.
II. THE HISTORY OF MANDATORY MINIMUM SENTENCING, THE
ECONOMIC ESPIONAGE ACT, AND THE THEFT OF TRADE SECRETS
CLARIFICATION ACT
Mandatory minimum sentences limit the discretion of a sentencing court
to impose a sentence that does not include a term of imprisonment or the
death penalty.6 There are generally three types of mandatory minimum sentences.7 The first type requires that the defendant serve “not less than” a
specified prison term, and may be triggered by the nature of the offense or
the offender’s criminal record.8 The second type is governed by “flat or
single sentence statutes,” which generally require life imprisonment.9 The
third type are those that “piggyback” onto a sentence because they are imported to the offender’s sentence due to an underlying charge that imposes
4.
Eric E. Bensen, Bensen on the Economic Espionage Act & the Uniform Trade Secret Act, LEXISNEXIS LEGAL NEWSROOM: INTELL. PROP. (June 11, 2012),
www.lexisnexis.com/legalnewsroom/intellectual-property/b/copyright-trademark-lawblog/archive/2012/06/11/bensen-on-the-economic-espionage-act-amp-the-uniform-tradesecret-act.aspx; see also Hacked: How China Is Stealing America’s Business Secrets,
THEWEEK (Feb. 16, 2012), http://theweek.com/article/index/224521/hacked-how-china-isstealing-americas-business-secrets [hereinafter Hacked].
5.
Attorney General Holder Speaks, supra note 2.
6.
CHARLES DOYLE, CONG. RESEARCH SERV., FEDERAL MANDATORY MINIMUM
SENTENCING STATUTES 7 (2013), available at http://www.fas.org/sgp/crs/misc/RL32040.pdf.
7.
Id. at 2.
8.
Id.
9.
Id. at 3.
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a mandatory minimum sentence.10
The first Congress enacted several mandatory minimum sentences, each
a capital offense.11 These sentences reflected the character of early criminal
law—severity and discretion.12 Throughout the nineteenth and twentieth
centuries, the sentencing discretion of federal judges was uncontrolled.13
Beginning in the 1960s, criticism of this practice led to a modification of
the federal sentencing process, which culminated in the Sentencing Reform
Act of 1984.14 Although the Sentencing Reform Act of 1984 did not remove all sentencing discretion from federal courts, it did pave the way for
regulation by the U.S. Sentencing Commission.15 In 1987, the U.S. Sentencing Commission enacted the Federal Sentencing Guidelines (Guidelines) to create uniform sentences by establishing a clear and rigid sentencing structure with narrow ranges that judges must use to sentence
offenders.16 The Guidelines established a system in which the scale of the
severity of the crime intersects with the criminal history of the offender.17
The Supreme Court upheld the constitutionality of mandatory minimum
sentences against Eighth Amendment challenges that these types of sentences constitute cruel and unusual punishment.18 Courts continue to refine
the constitutional implications of mandatory minimum sentences. For example, in United States v. Nigg, the Seventh Circuit held that mandatory
minimum sentences do not violate a defendant’s Fifth Amendment due
process right to an individualized sentence or constitute cruel and unusual
punishment under the Eighth Amendment.19 In Alleyne v. United States, the
Supreme Court held that any fact that increases the statutory mandatory
minimum sentence needs to be an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.20 Despite these
rulings, questions remain as to whether mandatory minimum sentences are
10.
11.
12.
13.
Id.
Id. at 5.
Id. at 4.
Evan Bernick & Paul J. Larkin, Jr., Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, HERITAGE FOUND. (Feb. 10, 2014),
http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimumsentences-the-arguments-for-and-against-potential-reforms.
14.
Id.
15.
Id.
16.
Ross Galin, Above the Law: The Prosecutor’s Duty to Seek Justice and the Performance of Substantial Assistance Agreements, 68 FORDHAM L. REV. 1245, 1245 (2000).
17.
Id. at 1251.
18.
Bernick & Larkin, supra note 13.
19.
See United States v. Nigg, 667 F.3d 929, 935 (7th Cir. 2012).
20.
See Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013).
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a judicious criminal justice policy.21
The EEA is a “hybrid form of legislation”—serving “both as a deterrent
to corporate competitors engaging in the theft of trade secrets and as a form
of national security legislation.”22 When signing the EEA into law, President Clinton remarked on the implications of the statute: “[t]rade secrets
are an integral part of virtually every sector of our economy and are essential to maintaining the health and competitiveness of critical industries operating in the United States. Economic espionage and trade secret theft
threaten our Nation’s national security and economic well-being.”23
The EEA was passed in 1996 to combat the increased threat to corporate
security from both international and domestic economic espionage, partly
brought on by former government spies who performed illicit work for
businesses in the private sector at the end of the Cold War.24 The purpose
of the EEA is to provide a comprehensive federal remedy for the theft of
trade secrets.25 The first and second provisions of the EEA’s nine provisions define the conduct that criminalizes the theft of trade secrets.26 Section 1831 criminalizes the theft of a trade secret for the benefit of “any foreign government, foreign instrumentality, or foreign agent.”27 Section
1832, on the other hand, broadly criminalizes the theft of a trade secret for
the benefit of anyone other than the owner.28
There are generally two types of trade secrets: customer lists and special
knowledge or information that relates to manufacturing or business operations.29 Trade secrets are defined as: “all forms and types of financial,
business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs,
prototypes, methods, techniques, processes, procedures, programs, or
codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.”30 Classification as a trade secret requires that the
owner of the information actively “take[s] reasonable measures to keep
such information secret” and that “the information derives independent
21.
22.
Bernick & Larkin, supra note 13.
Jonathan Eric Lewis, The Economic Espionage Act and the Threat of Chinese Espionage in the United States, 8 CHI.-KENT J. INTELL. PROP. 189, 201 (2009).
23.
EXEC. OFFICE FOR U.S. ATTORNEYS, PROSECUTING INTELLECTUAL PROPERTY
CRIMES 157 (4th ed. 2013) [hereinafter PROSECUTING IP CRIMES].
24.
Bensen, supra note 4.
25.
Id.
26.
See 18 U.S.C.A. § 1831 (West 2013); 18 U.S.C.A § 1832 (West 2012).
27.
§ 1831.
28.
§ 1832.
29.
Linkco, Inc. v. Fujitsu Ltd., 230 F. Supp. 2d 492, 498 (S.D.N.Y. 2002).
30.
18 U.S.C.A. § 1839 (West 1996).
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economic value, actual or potential, from not being generally known to,
and not being readily ascertainable through proper means by, the public.”31
The EEA was amended in 2012 in response to the Second Circuit’s decision in United States v. Aleynikov, where the court held that stolen computer source code was “purely intangible property” and not a trade secret under the EEA since it was not “related to or included in a product that is
produced for or placed in interstate or foreign commerce.”32 Congress
amended the language of the EEA to specifically address this loophole by
now providing that the theft of “a product or service used in or intended for
use in interstate or foreign commerce” is a violation of the Act.33 The
amendment to the EEA clarified its scope and resulted in the Theft of Trade
Secrets Clarification Act of 2012.34
While the EEA criminalizes the theft of trade secrets, it does not provide
any civil right of action.35 A party seeking civil remedies must pursue their
misappropriation claims under state law.36 Both the American Bar Association’s Intellectual Property Law Section and the Commission on the Theft
of American Intellectual Property have advocated for Congress to create a
federal civil cause of action for the misappropriation of trade secrets.37 In
2014, two bills were introduced to the House Judiciary Committee in support of a federal civil remedy for trade secret theft.38
31.
32.
Id.
United States v. Aleynikov, 676 F.3d 71, 74 (2d Cir. 2012); David S. Almeling,
Recent Trade Secret Reform—And What Else Needs to Change, LAW360 (Sept. 23, 2013,
11:24 AM), available at http://www.omm.com/files/upload/David%20Almeling%20Article
%20RE%20Trade%20Secret%20Reform.pdf.
33.
§ 1832; Theft of Trade Secrets Clarification Act of 2012, Pub. L. No. 112-236,
126 Stat. 1627 (2012).
34.
Theft of Trade Secrets Clarification Act of 2012, Pub. L. No. 112-236, 126 Stat.
1627 (2012).
35.
Jason C. Schwartz et al., 2013 Trade Secrets Litigation Round-Up, PAT.
TRADEMARK & COPYRIGHT J. 2 (BNA 2014).
36.
Id.
37.
Id.
38.
Archer & Greiner, United States: The Defend Trade Secrets Act of 2014: Bill
Would Grant Federal Protections To American Businesses, MONDAQ (June 13, 2014),
http://www.mondaq.com/unitedstates/x/320364/Trade+Secrets/The+Defend+Trade+Secrets
+Act+Of+2014+Bill+Would+Grant+Federal+Protections+To+American+Businesses; Tal
Kopan, Scoop: Trade Secrets Bill Today, POLITICO (July 29, 2014),
http://www.politico.com/morningcybersecurity/0714/morningcybersecurity14806.html; see
also Defend Trade Secrets Act of 2014, S. 2267, 113th Cong. (2014); Trade Secrets Protection Act of 2014, H.R. 5233, 113th Cong. (2014); Private Right of Action Against Theft of
Trade Secrets Act of 2013, H.R. 2466, 113th Cong. (2013).
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III. TRADE SECRET THEFT
Trade secret theft frequently occurs in the United States in industries
with high concentrations of technology and research and development activities.39 The most visible fields that are targeted are: aerospace, biotechnology, computer software and hardware, transportation and engine technology, defense technology, telecommunications, energy research,
advanced materials and coatings, stealth technologies, lasers, manufacturing processes, and semiconductors.40 Victims of trade secret theft range
from unsophisticated corporate entities to corporate giants like DuPont,
Dow Chemical, Corning, Lockheed Martin, and Boeing.41
One major reason for the prevalence of trade secret theft is the almost
universal use of computers in daily business operations.42 The reliance on
computers and the Internet has enabled criminals to instantaneously steal
massive quantities of sensitive information while simultaneously evading
detection.43 For employees, the use of computers is one of the most innovative workplace transformations.44 For employers, computers in the workplace confer substantial benefits by allowing for greater connectivity between enterprises and individuals.45 Increased connectivity is a doubleedged sword. While the use of passwords, firewalls, and encryption to protect network data is certainly advised where applicable, these measures
cannot safeguard confidential and proprietary information in every instance.46
A. Is Trade Secret Theft Really a Big Deal?
“In order to protect American innovation globally, trading partners must
treat trade secret theft as a serious issue.”47 In Europe for instance, trade
secret theft often goes unpunished because of the lack of infrastructure to
39.
40.
41.
HEDIEH NASHERI, ECONOMIC ESPIONAGE AND INDUSTRIAL SPYING 8 (2005).
Id. at 9.
Id.; Peter J. Toren, An Analysis of Economic Espionage Act Prosecutions: What
Companies Can Learn From It and What the Government Should Be Doing About It!, PAT.
TRADEMARK & COPYRIGHT J. 7 (BNA 2012).
42.
NASHERI, supra note 39, at 9.
43.
PROSECUTING IP CRIMES, supra note 23, at 3.
44.
Thomas E. Booms, Note, Hacking into Federal Court: Employee “Authorization”
Under the Computer Fraud and Abuse Act, 13 VAND. J. ENT. & TECH. L. 543, 545 (2011).
45.
Id.
46.
Id.
47.
Administration Strategy on Mitigating the Theft of U.S. Trade Secrets, EXECUTIVE
OFF. OF THE PRESIDENT OF THE U.S. 3 (Feb. 2013), https://www.hsdl.org/?view&did=731453
[hereinafter Administration Strategy].
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support adequate trade secret protection.48 Some European countries lack
the resources, investigative experience, and express statutory prohibitions
to protect against trade secret theft.49
Over the past year, the majority of criminal trade secret theft cases were
brought against Chinese nationals alleged to have stolen trade secrets for
the benefit of Chinese companies.50 In United States v. Cao, a grand jury in
the Southern District of Indiana returned a superseding indictment on August 14, 2013, against Guoqing Cao and Shuyu “Dan” Li for their alleged
multi-year plot to steal Eli Lilly trade secrets and transfer those secrets to
Jiangsu Hengrui Medicine Co., Ltd., one of Eli Lilly’s Chinese-based competitors located in Shanghai, China.51 Cao, Li, and an unnamed former Eli
Lilly scientist were charged with stealing nine separate trade secrets from
2011 to 2013 relating to Eli Lilly’s work on cardiovascular disease prevention, diabetes treatment, and cancer treatment.52 Cao and Li were accused
of downloading trade secret information allegedly worth $55 million dollars from their own Eli Lilly computers and emailing Eli Lilly’s trade secrets away through their own Eli Lilly email addresses.53
In United States v. Zhao, research scientist Hua Jun Zhao was charged
for the theft of an anti-cancer compound developed by his former employer, the Medical College of Wisconsin, in violation of the EEA.54 Zhao was
placed on administrative leave following the disappearance of three vials of
C-25, a cancer fighting powder worth $8000.55 After the suspension, Zhao
allegedly attempted to access his work computer in an effort to delete in48.
Joseph V. DeMarco, Europe’s Weaker Laws Against Trade Secret Theft Means
Corporate Espionage Often Goes Unpunished, BUS. INSIDER (Aug. 5, 2011),
http://www.businessinsider.com/europes-lack-of-trade-secret-theft-protection-laws-meanscoprorate-espionage-often-goes-unpunished-2011-8.
49.
Id.
50.
Schwartz et al., supra note 35, at 3.
51.
Justin K. Beyer, Two Former Eli Lilly Scientists Accused of Stealing $55 Million
in Trade Secrets on Behalf of Chinese Pharmaceutical Company in Southern District of Indiana Indictment, TRADESECRETSLAW (Oct. 28, 2013), http://www.tradesecretslaw.com/
2013/10/articles/trade-secrets/two-former-eli-lilly-scientists-accused-of-stealing-55-millionin-trade-secrets-on-behalf-of-chinese-pharmaceutical-company-in-southern-district-ofindiana-indictment/.
52.
Id.
53.
Id.
54.
Defendant Charged with Attempting to Damage a Protected Computer,
DEPARTMENT
OF
JUST.
(Apr.
11,
2013),
http://www.justice.gov/usao/wie/news/2013/pr20130411_Protected_Computer_Damage_Ch
arge.html [hereinafter Attempting to Damage a Protected Computer].
55.
Dinesh Ramde & M.L. Johnson, Prosecutor: Huajun Zhao, Medical College of
Wisconsin Researcher, Stole Cancer Data for China, HUFFINGTON POST (Apr. 2, 2013),
http://www.huffingtonpost.com/2013/04/02/huajun-zhao-china-cancer_n_2998777.html.
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formation relating to the compound.56 On April 11, 2013, the Department
of Justice charged Zhao with computer fraud for tampering with a federally-protected computer and for lying to the Federal Bureau of Investigation
in connection with the ongoing EEA investigation.57 Zhao ultimately pled
guilty to the computer fraud charge and was sentenced to time served and
two years of supervised release.58
In United States v. Huang, the Defendants, Ji Li Huang and Xiao Guang
Qi, two Chinese nationals, pled guilty to stealing trade secrets from Pittsburgh Corning Corporation (Pittsburgh Corning) in January 2013.59 The
Defendants unsuccessfully attempted to pay $100,000 for stolen trade secrets for the purpose of opening a plant in China to compete with Pittsburgh Corning.60 After the Defendants were unable to physically access the
plant, they placed a newspaper ad soliciting someone with Pittsburgh Corning experience “to lead a project to build up a foam glass factory with continuous research on new formulas” in Asia.61 A Pittsburgh Corning employee cooperated with federal agents to correspond with the Defendants to
arrange a meeting for payment of the trade secrets.62 Huang was sentenced
to eighteen months imprisonment and assessed a $250,000 fine, while Qi
was sentenced to time served, assessed a $20,000 fine, and agreed to leave
the United States.63
In United States v. Liu, Sixing Liu, a Chinese national was sentenced in
March of 2013 to seventy months in prison after being convicted on charges that included unlawful possession of trade secrets and violations of the
Export Control Act.64 Prior to leaving his employment as a U.S. defense
contractor, Liu copied thousands of electronic files related to guidance systems for missiles, drones, and other airborne technology, and took them to
China.65 This case is now pending before the Third Circuit.66
China’s poor enforcement of foreign intellectual property interests is
considered a by-product of its reliance on administrative instead of criminal
56.
57.
58.
59.
60.
Schwartz et al., supra note 35, at 4.
Attempting to Damage a Protected Computer, supra note 54.
Schwartz et al., supra note 35, at 4.
Id.
Two Chinese Nationals Charged with Stealing Trade Secrets from Missouri Manufacturing Plant, FBI (Sept. 4, 2012), http://www.fbi.gov/kansascity/pressreleases/2012/two-chinese-nationals-charged-with-stealing-trade-secrets-from-missourimanufacturing-plant.
61.
Schwartz et al., supra note 35, at 4.
62.
Id.
63.
Id.
64.
Id.
65.
Id.
66.
Id.
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measures to combat intellectual property rights infringement, corruption,
and local protectionism at the provincial levels.67 Limited resources and
training available to enforcement officials, lack of public education regarding both the economic and social impact of intellectual property crimes, together with the protection of valuable Chinese research and development
are routinely cited as the reasons why China has not acted to protect foreign
intellectual property interests.68 The thrust of the Obama administration’s
efforts to counter trade secret theft has been directed toward China because
it is seen as the biggest threat with regard to foreign trade secret misappropriation.69 However, other recent cases show that trade secret theft was also
intended to benefit companies in India, the Dominican Republic, Korea,
South Africa, Israel, and Japan.70
B. Current Penalties for Trade Secret Theft
Title 18, section 1832 of the United States Code articulates a broad criminalization of the theft of trade secrets.71 Violations of section 1832 are
punishable by imprisonment for not more than ten years and/or a fine of not
more than $250,000 (not more than $500 million for organizations), or
both.72 The maximum fine may be higher depending on the amount of gain
or loss associated with the offense.73 Both sections 1831 and 1832 require
that the government “prove beyond a reasonable doubt that: (1) the defendant misappropriated information (or conspired or attempted to do so); (2)
the defendant knew or believed this information was proprietary and that he
had no claim to it; and (3) the information was in fact a trade secret.”74
Violations of the EEA are subject to the Mandatory Victims Restitution
Act of 1996 (MVRA).75 The MVRA applies to all convictions for, among
others, any “offense against property . . . including any offense committed
67.
Victoria F. Maroulis, China’s Evolving IP Regime and Avenues of Enforcement, in
DEFENDING INTELLECTUAL PROPERTY RIGHTS CASES IN CHINA: LEADING LAWYERS ON
PROTECTING CLIENTS’ RIGHTS IN CHINA’S EVOLVING IP ENVIRONMENT 1, 1 (2013), available
at 2013 WL 4192387.
68.
Id.
69.
Joshua R. Rich, Commentary, Obama Administration Focuses on Chinese Trade
Secret Misappropriation, WESTLAW J. COMPUTER & INTERNET (2013), available at
2013 WL 3466724, *5.
70.
Toren, supra note 41, at 6.
71.
18 U.S.C.A. § 1832 (West 1995).
72.
Id. § 1832(a)(5), (b).
73.
CHARLES DOYLE, CONG. RESEARCH SERV., STEALING TRADE SECRETS AND
ECONOMIC ESPIONAGE: AN OVERVIEW OF 18 U.S.C. 1831 AND 1832, at 6 (2013), available at
https://www.fas.org/sgp/crs/secrecy/R42681.pdf.
74.
PROSECUTING IP CRIMES, supra note 23, at 160.
75.
Lewis, supra note 22, at 225.
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by fraud and deceit,” and “in which an identifiable victim or victims has
suffered a physical injury or pecuniary loss.”76 The MVRA requires in cases involving “damage to or loss or destruction of property of a victim of the
offense,” that a defendant return the property to its owner.77 If the return of
the property proves “impossible, impracticable, or inadequate,” the defendant is required to “to pay an amount equal to the property’s value on the
date of its damage, destruction, or loss, or its value at the time of sentencing, whichever is greater, less the value of any part of the property that is
returned.”78
Prior to the enactment of the EEA, federal prosecutors had difficulty tailoring trade secret cases to existing statutes so they relied on other instrumentalities of trade secret theft to prosecute these crimes.79 This was possible because section 1838 does not “preempt or displace any other remedies,
whether civil or criminal, provided by United States Federal, state, commonwealth, possession, or territory law for the misappropriation of a trade
secret.”80 As a result, defendants charged with trade secret theft are often
also indicted under the Computer Fraud and Abuse Act, the National Stolen
Property Act, and the Federal Wire Fraud Statute.81
C. Damage Determinations in Trade Secret Theft Cases
In contrast to other intellectual property crimes, for example as in copyright law, there are no statutory damages in trade secret theft cases; therefore, actual damages must be proven.82 Successful plaintiffs can elect one
of two measures of damages: the plaintiff’s losses or the defendant’s profits.83 The measure of plaintiff’s losses may include the cost of developing
the trade secret and any revenue the plaintiff would have made but for the
defendant’s misappropriation.84 Defendant’s profits are typically a measure
of unjust enrichment from using the trade secret.85
The Guidelines define loss as the greater of “the pecuniary harm that the
defendant knew or, under the circumstances, reasonably should have
76.
18 U.S.C.A § 3663A(c)(1)(A)(ii), (c)(1)(B) (West 2012); PROSECUTING IP
CRIMES, supra note 23, at 223-24.
77.
§ 3663A(b); see also PROSECUTING IP CRIMES, supra note 23, at 224.
78.
§ 3663A(b); see also PROSECUTING IP CRIMES, supra note 23, at 224.
79.
Lewis, supra note 22, at 198.
80.
18 U.S.C.A. § 1838 (West 1996); PROSECUTING IP CRIMES, supra note 23, at 224.
81.
DOYLE, supra note 74, at 13; Lewis, supra note 22, at 198.
82.
CORPORATE COUNSEL’S GUIDE TO PROTECTING TRADE SECRETS § 1:21 (Thompson
Reuters 2013) [hereinafter CORPORATE COUNSEL].
83.
Id.
84.
Id.
85.
Id.
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known, was a potential result of the offense” and “the pecuniary harm that
was intended to result from the offense . . . includ[ing] intended pecuniary
harm that would have been impossible or unlikely to occur.”86 The Guidelines define a defendant’s profit or gain as an “alternative measure of loss
only if there is a loss but it reasonably cannot be determined.”87 The sentencing judge is only required to make a reasonable estimate of the loss,
and this determination is given deference due to the unique position the
sentencing judge has in assessing the evidence.88 To the extent a court has
calculated a plaintiff’s loss under the Guidelines, the same loss determination could be used for the restitution analysis under the MVRA.89
Courts have diverged from the lost profit analysis where a plaintiff’s
losses and a defendant’s profits cannot be easily computed.90 In that instance, a court may find that the appropriate method to calculate damages is
a “reasonable royalty.”91 A reasonable royalty attempts to measure, as of
the time of the misappropriation, a hypothetically agreed upon value of the
property that the defendant wrongfully obtained.92 As compared to other
measures, reasonable royalties are a more detailed and accurate reflection
of damages and require an extensive sentencing proceeding, including the
use of expert witnesses.93 To measure a reasonable royalty, the court “calculates what the parties would have agreed to as a fair licensing price at the
time the misappropriation occurred.”94
The courts may also rely on a number of other factors in calculating
damages.95 For example, a court can consider: the prices that prior pur86.
U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 (2012) [hereinafter GUIDELINES
MANUAL].
87.
Id.
88.
Id.
89.
PROSECUTING IP CRIMES, supra note 23, at 224.
90.
Linkco, Inc. v. Fujitsu Ltd., 230 F. Supp. 2d 492, 503 (S.D.N.Y. 2002).
91.
Id.
92.
Id.
93.
Marc J. Zwillinger & Christian S. Genetski, Calculating Loss Under the Economic
Espionage Act of 1996, 9 GEO. MASON L. REV. 323, 343 (2000).
94.
CORPORATE COUNSEL, supra note 82.
95.
Id. Additional factors which the court can consider are: the resulting and foreseeable changes in the parties’ competitive posture; any other unique factors in the particular
case that might have affected the parties’ agreement, such as the ready availability of alternative processes; the royalties received by the plaintiff for the licensing of the trade secrets
to others, which may prove an established royalty; the rates paid by the defendant for the
use of other trade secrets comparable to the trade secret at issue in the lawsuit; the nature
and scope of the license, as exclusive or nonexclusive or as restricted or nonrestricted, in
terms of the territory or with respect to whom the manufactured product may be sold; the
commercial relationship between the plaintiff and the defendant, such as whether they are
competitors in the same territory in the same line of business, or whether they are inventors
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chasers or licensees have paid; the total value of the secret to the plaintiff,
including the plaintiff’s development costs and the importance of the secret
to the plaintiff’s business; the nature and extent of the use that the defendant intended for the secret; and the plaintiff’s established policy and marketing program to maintain its trade secret by not licensing others to use the
invention or by granting licenses under special conditions designed to preserve the trade secret.96 Notwithstanding the abundance of factors a court
can consider in its loss calculation, the goal of damage determinations is to
arrive at a loss figure that corresponds to the relevant conduct of the offense which is used to decide the adjusted offense level based on the
Guidelines.97
IV. INTRODUCING MANDATORY MINIMUM SENTENCING TO TRADE
SECRET THEFT
The success of nineteenth century trade secret cases largely depended on
the existence of confidentiality agreements, either express or implied, as
and promoters; the effect of selling the trade secret product in promoting sales of other
products of the defendant, the existing value of the trade secret to the plaintiff as a generator
of sales of its nontrade secret items, and the extent of such derivative, connected, or conveyed sales; the duration of the trade secret and the term of the license; the established profitability of the product made with the trade secret, its commercial success, and its current
popularity; the utility and advantages of the trade secret over the old modes or devices, if
any, that had been used for working out similar results; the nature of the trade secret, the
character of the commercial embodiment of it as owned or produced by the plaintiff, and the
benefits to those who have used the trade secret; the extent to which the defendant made use
of the trade secret, and whether there is any evidence probative of the value of that use; the
portion of the profit or of the selling price that may be customary in the particular business
or in comparable businesses to allow for the use of the trade secret or analogous trade secrets; the portion of the realizable profit that should be credited to the invention as distinguished from nontrade secret elements, the manufacturing process, business risk, or significant features or improvements added by the defendant; the opinion testimony of qualified
experts; the amount that the plaintiff and the defendant would have agreed to (at the time the
misappropriation began) if both had been reasonably and voluntarily trying to reach an
agreement; and the amount that a prudent licensee, who desired as a business proposition to
obtain a license to manufacture and sell a particular article embodying the trade secret,
would have been willing to pay as a royalty to make a reasonable profit, and the amount that
would have been acceptable to a prudent licensor who was willing to grant a license. Id.
96.
Id.
97.
GUIDELINES MANUAL, supra note 86, § 2B1.1(b)(3)-(5). The base offense level for
sections 1831-1832 is six and can be raised by two levels if the offense “involve[s] a theft
from the person of another,” the offense “involve[s] receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property,” or the offense
“involve[s] misappropriation of a trade secret and the defendant knew or intended that the
offense would benefit a foreign government, foreign instrumentality, or foreign agent.” Id.;
see Zwillinger & Genetski, supra note 93, at 327.
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courts were unwilling to find a property interest in secret information.98 At
that time, courts were free to rely on a varied combination of property, contract, and tort law to decide trade secret cases.99 In 1868, a Massachusetts
state court decided, in what is thought to be one of the earliest trade secret
cases, to recognize the existence of a property right in an employer’s trade
secret information.100 “If a man establishes a business and makes it valuable by his skill and attention, the good will of that business is recognized by
the law as property.”101 Indeed, as far back as 1690, philosopher John
Locke recognized the inherent property right every person has by virtue of
his labor when he declared: “[w]hatsoever, then, he removes out of the
state that Nature hath provided and left it in, he hath mixed his labour with
it and joined to it something that is his own, and thereby makes it his property.”102 The Supreme Court has previously declined to limit the scope of
intangible property rights and reaffirmed the property right in “confidential
information.”103 On this basis, both intellectual property and real property
crimes should have similar criminal implications.104
A. Arguments for Mandatory Minimum Sentencing
Proponents of mandatory minimum sentencing assert that these sentences are a reflection of a societal belief that certain crimes demand a specified
sanction to ensure that perpetrators of the crime cannot escape the appropriate punishment.105 A company invests years of research and development along with its associated costs in developing trade secrets that may
represent a substantial portion of the company’s worth.106 If a trade secret
is stolen, exposure to the public can potentially render it valueless because
recovery of the trade secret may not cure the effect of the theft due to the
intangible nature of trade secrets.107 Likewise, if a company’s notoriety in
98.
Sharon K. Sandeen, The Evolution of Trade Secret Law and why Courts Commit
Error when They Do Not Follow the Uniform Trade Secrets Act, 33 HAMLINE L. REV. 493,
499 (2010).
99.
Alan J. Tracey, The Contract in The Trade Secret Ballroom—A Forgotten Dance
Partner?, 16 TEX. INTELL. PROP. L.J. 47, 54 (2007).
100.
Id. at 54-55.
101.
Peabody v. Norfolk, 98 Mass. 452, 457 (1868).
102.
John Locke, Concerning the True Original Extent and End of Civil Government,
in TWO TREATISES OF GOVERNMENT 105, 116 (1690).
103.
Carpenter v. United States, 484 U.S. 19, 25 (1987).
104.
Id. (inferring that because the Supreme Court treats property rights one way, the
same treatment should be given to intellectual and real property crimes).
105.
Bernick & Larkin, supra note 13.
106.
PROSECUTING IP CRIMES, supra note 23, at 3.
107.
H.R. REP. NO. 104-788, at 13 (1996), reprinted in 1996 U.S.C.C.A.N. 4021, 4022
(“The intent of this section is to preserve the confidential nature of the information and,
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the market was vested in the propriety nature of a trade secret, exposure to
the public would be devastating.108 Imagine if, as a real-life example, that
PepsiCo acquired Coca-Cola’s secret recipe—it would ruin sales of the soft
drink.109 In the fictional sense, imagine if Arthur Slugworth was able to
steal Willy Wonka’s secret formula for the Everlasting Gobstopper: not only would the Oompa Loompas be out of a job, but Mr. Wonka’s candy
sales would be shattered.110
The need for strict criminal penalties for intellectual property crimes can
be described as follows:
[I]ntellectual property crimes are serious crimes in their own right, not
because they inflict physical injury or death upon a person, but rather
because they steal a creative work from its owner. Intellectual property
theft is rampant, but largely silent, so corporations and law enforcement
alike have trouble grasping its enormous impact on profitability—not to
mention on national economies. Although civil remedies may provide
compensation to wronged intellectual property rights holders, criminal
sanctions are often warranted to ensure sufficient punishment and deterrence of wrongful activity. Indeed, because violations of intellectual
property rights often involve no loss of tangible assets and, for infringement crimes, do not even require any direct contact with the rights
holder, the rights holder often does not know it is a victim until a defendant’s activities are specifically identified and investigated.111
Mandatory minimum sentences are a sentencing mechanism that can be
used to administer the proper punishment for intellectual property crimes.
Mandatory minimums also guarantee uniform sentences in the federal system and provide punishment that is commensurate with the crime.112 Additionally, proponents argue that certain and severe punishment has a deterrent effect.113 Mandatory minimum sentences in trade secret cases may
serve as a powerful deterrent because many offenders intend to abscond to
another country with the stolen information.114 The threat of a mandatory
hence, its value. Without such a provision, owners may be reluctant to cooperate in prosecution for fear of further exposing their trade secrets to public view, thus further devaluing or
even destroying their worth.”).
108.
See Ivana Kottasova, Does Formula Mystery Help Keep Coke Afloat?, CNN (Feb.
19, 2014), http://edition.cnn.com/2014/02/18/business/coca-cola-secret-formula/.
109.
See Mike Esterl, Coke Sticks to Its Strategy While Soda Sales Slide, WALL ST. J.
(Apr. 9, 2014), http://online.wsj.com/news/articles/SB10001424052702303910404579485
442244343248.
110.
WILLY WONKA & THE CHOCOLATE FACTORY (Paramount Pictures 1971).
111.
NASHERI, supra note 39, at 2.
112.
Bernick & Larkin, supra note 13.
113.
Id.
114.
See, e.g., United States v. Jin, 733 F.3d 718, 720 (7th Cir. 2013) (noting that De-
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minimum sentence that would have to be served in the U.S. might cause a
potential thief to reconsider stealing a trade secret. The certainty of a mandatory minimum sentence for trade secret theft is critical to deterring future
offenders and holding the most egregious offenders accountable for their
conduct.115
B. Arguments Against Mandatory Minimum Sentencing
Opponents of mandatory minimum sentencing argue that mandatory
minimum sentences merely shift discretion from judges to prosecutors but
do not eliminate sentencing disparities.116 The Guidelines are not only criticized for being mechanical and extremely complicated, but also because
the sentence range for specific categories of offenses is exceptionally
high.117 In addition, shifting the discretion to prosecutors is more harmful
than unlimited judicial discretion because prosecutors are not trained in
sentencing and do not exercise discretion transparently.118 Further, prosecutors lack an incentive to exercise discretion responsibly where the potential for professional gain from successful convictions is likely.119 For example, a prosecutor’s assessment of a case could become corrupted if a
high-profile victim of a trade secret theft puts an overwhelming amount of
pressure on the District Attorney’s Office to prosecute the offender.120 In
one case, New York Supreme Court Judge Jeffrey K. Oing questioned
whether the hedge fund, Two Sigma Investments, LLC, had gone “over the
top” in their pursuit to have a former analyst, Kang Gao, jailed over alleged
trade secret theft.121 Judge Oing cautioned that: “[w]e may be going down
a slippery slope . . . . If this case continues, there perhaps may be an opening of the door for all employers to say ‘you know what, we’re going to put
these guys in jail now.’”122
fendant was arrested while attempting to board a flight to China with a one-way ticket, and
was carrying $31,000 in cash and confidential documents from her former employer,
Motorola); see also Complaint at 7, United States v. Maniar, Mag. No. 13-6085 (SCM)
(D.N.J. June 4, 2013) (during the execution of a search warrant for trade secret information,
Defendant confirmed that he intended to relocate to India in two days).
115.
See PROSECUTING IP CRIMES, supra note 23, at 4.
116.
Bernick & Larkin, supra note 13.
117.
ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN
PROSECUTOR 105 (2007).
118.
Bernick & Larkin, supra note 13.
119.
Id.
120.
See Stewart Bishop, NY Judge Questions Rare Arrest in Trade Secret Theft Case,
LAW360 (Mar. 12, 2014), http://www.law360.com/articles/517850/ny-judge-questionsrarearrest-in-trade-secret-theft-case.
121.
Id.
122.
Id.
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The potential for widespread prosecutorial abuse could arise if mandatory minimum sentences became available in “garden variety” trade secret
disputes.123 Critics also assert that mandatory minimums do not reduce
crime; instead they “demonstrate marginal deterrent effects or short-term
effects that rapidly waste away.”124 For instance, in drug cases, a phenomenon known as the “replacement effect”—where upon incarceration, lowlevel offenders are quickly replaced in the drug operation—is quite common.125 Certainly the high financial incentive that drives trade secret theft
may also manifest a similar effect in trade secret theft cases.126 Moreover,
because most crimes, even serious ones, do not result in arrest or conviction, the deterrent effect of mandatory minimum sentences is substantially
reduced.127 Perhaps most significantly, mandatory minimum sentencing is
ineffective as a deterrent because research has shown that the general public tends to underestimate the severity of sanctions that can be imposed
mainly because they are unaware of the specifics of sentencing policies.128
C. Mandatory Minimum Sentences as an Addition to the Current
Trade Secret Theft Penalties
Economic espionage has been colorfully described as “a high-stakes
cloak-and-dagger spy game—the theft of critical American technology and
trade secrets by foreign companies and governments.”129 The high stakes at
risk warrant a high level of protection as intellectual property crimes are an
escalating and serious threat.130 To that end, Attorney General Holder has
made the investigation and prosecution of intellectual property crime a top
law enforcement priority.131 Criminal sanctions are important for educating
the public on what types of conduct are and are not acceptable.132 Certainty
that an intellectual property crime will be vigorously investigated and pros123.
124.
125.
126.
See id.
Bernick & Larkin, supra note 13.
Id.
See, e.g., Complaint at 2, United States v. Zhu, No. 13 Mag. 1309 (S.D.N.Y. May
19, 2013); Schwartz et al., supra note 35, at 4 (noting that Defendant agreed to supply a
Chinese company with confidential information about a new MRI technology in exchange
for royalty payments worth $2 million, $23 million in stock options, and a high-level position within the company).
127.
VALERIE WRIGHT, DETERRENCE IN CRIMINAL JUSTICE: EVALUATING CERTAINTY VS.
SEVERITY OF PUNISHMENT 2 (2010), available at http://www.sentencingproject.org/doc/
Deterrence%20Briefing%20.pdf.
128.
Id. at 3.
129.
Lewis, supra note 22, at 194-95.
130.
PROSECUTING IP CRIMES, supra note 23, at 3.
131.
Id. at 4.
132.
Id. at 381.
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ecuted makes the point clear that intellectual property theft is not acceptable.133 Because intellectual property crimes are relatively easy to commit,
some offenders are undeterred by civil liability.134 Heavy civil penalties in
addition to mandatory minimum sentences will underscore the seriousness
of trade secret theft crimes.135 Mandatory minimum sentences for intellectual property crimes, specifically trade secret theft, are appropriate because
of the physical invasiveness of the crime and because civil remedies may
not fully capture the wrongfulness of the offender’s conduct.136
1.
A Game of Cloaks and Daggers
From 2006 to 2011, the number of prosecutions under the EEA was stable.137 In fact, by September 1, 2012, there were only five indictments under the EEA for that year.138 These findings suggest that more aggressive
prosecution of EEA violations is necessary. The profile of EEA violators is
becoming more apparent, and it is evident that without the certainty of
tough criminal sanctions, the incentive to commit trade secret theft remains.139
The number of crimes that carry mandatory minimum sentences has
more than doubled since 1991 as offenses ranging from child pornography
to identity theft have become subject to mandatory minimum sentencing.140
Both intellectual property crimes and aggravated identity theft are property
crimes broadly characterized as federal white collar crimes.141 Both aggravated identity theft and trade secret theft losses are in the billions of dollars
each year.142 Offenders of both of these theft offenses are sentenced under
section 2B1.1 of the Guidelines.143 Aggravated identity theft carries a man-
133.
134.
135.
See id.
See id.
But see Jef Feeley & Christie Smythe, DuPont’s $920 Million Verdict in Kolon
Kevlar Case Tossed, BLOOMBERG (Apr. 3, 2014), http://www.bloomberg.com/news/201404-03/dupont-s-919-million-verdict-in-kolon-kevlar-case-tossed.html.
136.
See PROSECUTING IP CRIMES, supra note 23, at 384.
137.
Toren, supra note 41, at 2.
138.
Id.
139.
See generally id.
140.
Bernick & Larkin, supra note 13.
141.
See EXEC. OFFICE FOR U.S. ATTORNEYS, FISCAL YEAR 2012 UNITED STATES
ATTORNEYS’
ANNUAL
STATISTICAL
REPORT
(2012),
available
at
www.justice.gov/sites/default/files/usao/legacy/2013/10/28/12stat.rpt.pdf.
142.
Bensen, supra note 4; Hacked, supra note 4; 16.6 Million People Experienced
Identity Theft in 2012, BUREAU OF JUST. STAT. (Dec. 12, 2013),
http://www.bjs.gov/content/pub/press/vit12pr.cfm#.
143.
GUIDELINES MANUAL, supra note 86.
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datory minimum sentence of two years.144 More than 50% of the judges
who responded to the U.S. Sentencing Commission survey felt that the
two-year mandatory minimum for aggravated identity theft was appropriate.145
Since 2008, the average sentence length for offenders of theft, property
destruction, and fraud offenses was twenty-two months.146 In 2010, 84.4%
of the 797 identity theft offenders were subject to a mandatory minimum
penalty.147 The average sentence for these offenders was fifty months.148
The average sentence and average guideline minimum for offenders sentenced under section 2B1.1 of the Guidelines has increased over the past
five years.149 Sentences under section 2B1.1 increased for 12.7% of offenders because the offenders used sophisticated means to execute or conceal the offense.150 Identity theft and trade secret theft are analogous crimes
in that they are both theft of property offenses;151 therefore, mandatory
minimum sentencing corresponding to the already established scheme for
identity theft would also be appropriate for trade secret theft offenses.
2.
Theft is Theft
Aggravated identity theft occurs when the offender commits the identity
theft while committing one of several other federal crimes.152 Aggravated
identity theft has a mandatory minimum sentence of two years or five years
if the predicate crime is a terrorist offense.153 Trade secret theft is often
charged with a corresponding federal offense.154 Three particular offenses
are also predicate crimes for aggravated identity theft that trigger a twoyear mandatory minimum: fraud and related activity in connection with
computers (18 U.S.C. § 1030); mail or wire fraud (18 U.S.C. §§ 1341,
144.
145.
146.
DOYLE, supra note 6, at 93.
Id.
U.S. SENTENCING COMM’N, QUICK FACTS: THEFT, PROPERTY DESTRUCTION, AND
FRAUD OFFENSES 2 (2013), http://www.ussc.gov/Quick_Facts/Quick_Facts_Theft_Property_
Destruction_Fraud.pdf.
147.
U.S. SENTENCING COMM’N, QUICK FACTS: MANDATORY MINIMUM PENALTIES 1
(2013), http://www.ussc.gov/Quick_Facts/Quick_Facts_Mandatory_Minimum_
Penalties.pdf.
148.
Id.
149.
QUICK FACTS, supra note 146.
150.
Id. at 1.
151.
See BLACK’S LAW DICTIONARY 814, 1633 (9th ed. 2009) (defining identity theft
and trade secret).
152.
DOYLE, supra note 6, at 87.
153.
Id.
154.
DOYLE, supra note 73, at 13; Lewis, supra note 22, at 198.
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1343); and false statements (18 U.S.C. § 1001).155
How would a mandatory minimum sentencing scheme for trade secret
theft work in practice? Take for instance defendant Zhao, whose case was
described previously in Part III. Zhao’s initial criminal complaint alleged a
violation of 18 U.S.C. § 1831(a)(1)(2)(3), but instead he was ultimately indicted on violations of 18 U.S.C. §§ 1001, 1030.156 Under the proposed
scheme, had Zhao been charged with a violation of 18 U.S.C. § 1831 as a
base offense, either of the additional charges under 18 U.S.C. § 1001 and §
1030 would serve as a predicate offense for a two-year mandatory minimum sentence. Depending on other factors relevant to the case, the minimum sentence could be adjusted to reflect the additional predicate offense.
Additionally, because violations of the EEA are subject to the MVRA,
Zhao would also be required to pay mandatory restitution. This example is
illustrative of the fact that mandatory minimum sentences are feasible in
the context of trade secret theft cases.
3.
Global Reach of the EEA
The Obama administration has continued to demonstrate a commitment
to increasing criminal prosecution of trade secret theft as part of a larger
effort to bolster protection of U.S. intellectual property.157 During the first
ten months of 2013, the Department of Justice reported fourteen new prosecutions and three new convictions under the EEA.158 These figures are
promising compared to the first three years after the EEA was enacted,
where no prosecutions were brought under the EEA.159
To assist in the domestic investigations of trade secret theft with an international element, U.S. federal law enforcement agencies use tools like
formal cooperative agreements to strengthen international relationships and
investigative efforts.160 The U.S. also strives to enhance efforts to pursue
domestic investigations of trade secret theft by foreign entities and encourage foreign law enforcement to pursue those targets themselves.161 A statutory scheme that calls for mandatory minimum sentences for trade secret
theft is advantageous for prosecuting offenders, particularly where intellectual property theft enforcement capabilities are weak in foreign locales.
155.
156.
PROSECUTING IP CRIMES, supra note 23, at 224-31.
Complaint at 1, United States v. Zhao, No. 13-m-220 (E.D. Wis. Mar. 29, 2013);
Indictment at 1, United States v. Zhao, No. 13-CR-58 (E.D. Wis. Apr. 9, 2013).
157.
Schwartz et al., supra note 35, at 3.
158.
Id.
159.
Lewis, supra note 22, at 206.
160.
Administration Strategy, supra note 47.
161.
Id.
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In the European Union, for instance, trade secret protection varies widely across member states with some lacking significant protection.162 The
European Commission has proposed a directive that would require member
states “to put in place measures, procedures and remedies that are fair and
equitable, effective and dissuasive, not unnecessarily complicated, and proportionate.”163 Despite this undertaking, no criminal sanctions are available.164 Canada’s current criminal code provides equally weak protection for
victims of trade secret theft.165 Ironically, the application of the provisions
that would aid in prosecuting trade secret cases—theft and fraud—are prohibited by Canadian courts.166 Fortunately, the extraterritoriality provision
of the EEA, 18 U.S.C. § 1837, extends its reach to foreign conduct under
certain circumstances.167
Trade secret theft should be punished in proportion to the seriousness of
the loss caused by the crime. A recent study estimates that trade secret theft
costs the world’s top economies, on average, between 1% and 3% of their
gross domestic product.168 Mandatory minimum sentences for trade secret
theft would be an appropriate punishment; however, fair administration of
this type of sentence would require courts to adopt a holistic approach to
determining loss—a significant factor in sentencing.169
V. CONCLUSION
President Obama has declared that as a nation, “[w]e are going to aggressively protect our intellectual property. Our single greatest asset is the
innovation and the ingenuity and creativity of the American people. It is
essential to our prosperity and it will only become more so in this century.”170 Trade secret theft threatens American businesses, national security,
and the economy by not only putting American jobs in jeopardy, but also
by potentially stifling American innovation.171 As American business prac162.
Mark Frost et al., Trade Secrets: A Unified Approach Across the EU, PRAC. L.
(Jan. 30, 2014), http://uk.practicallaw.com/45554390?q=Trade+secrets:+a+unified+
approach+across+the+EU.
163.
Id.
164.
Id.
165.
Emir Crowne & Tasha De Freitas, Canada’s Inadequate Legal Protection Against
Industrial Espionage, 13 CHI.-KENT J. INTELL. PROP. 192, 194 (2014).
166.
Id.
167.
PROSECUTING IP CRIMES, supra note 23, at 161.
168.
Jack Ellis, New Study Tries to Put A Price on Trade Secrets Theft, INTELL. ASSET
MGMT. (Mar. 6, 2014), http://www.iam-magazine.com/ctredir.ashx?g=fb65b523-8cd2-489f990b-20985994ff56.
169.
Zwillinger & Genetski, supra note 93, at 323.
170.
Administration Strategy, supra note 47.
171.
Id.
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tices continue to evolve into a progressively more dynamic global landscape, so too should the laws in place to protect those practices. The option
to impose mandatory minimum sentences on those who misappropriate
trade secrets presents an opportunity to employ a powerful weapon in combating trade secret theft.