Protecting American Trade Secrets and Innovation Act of 2012 - Amends the federal criminal code to authorize a person who is aggrieved by an act of economic espionage, theft of a trade secret, or misappropriation of a trade secret that is related to or included in a product that is produced for or placed in interstate or foreign commerce to bring a civil action under this Act (current law authorizes the Attorney General to bring a civil action to obtain injunctive relief against any violation of provisions regarding the protection of trade secrets).
Requires a complaint filed in such an action to: (1) describe with specificity the reasonable measures taken to protect the secrecy of the alleged trade secrets in dispute, and (2) include a sworn representation by the party asserting the claim that the dispute involves either substantial need for nationwide service of process or misappropriation of trade secrets from the United States to another country.
Authorizes the court, in a civil action, upon ex parte application and if the court finds by clear and convincing evidence that issuing the order is necessary to prevent irreparable harm, to issue an order providing for: (1) the seizure of any property (including computers) used or intended to be used to commit or facilitate the commission of the alleged violation, and (2) the preservation of evidence.
Sets forth provisions regarding the scope of such an order, rights of a party injured by a seizure under such an order, and remedies with respect to civil actions brought under this Act. Establishes a three-year limitations period, beginning when the misappropriation is discovered or should have been discovered.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3389 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 3389
To modify chapter 90 of title 18, United States Code, to provide
Federal jurisdiction for theft of trade secrets.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 17, 2012
Mr. Kohl (for himself, Mr. Coons, and Mr. Whitehouse) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To modify chapter 90 of title 18, United States Code, to provide
Federal jurisdiction for theft of trade secrets.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting American Trade Secrets
and Innovation Act of 2012''.
SEC. 2. FEDERAL JURISDICTION FOR THEFT OF TRADE SECRETS.
(a) In General.--Section 1836 of title 18, United States Code, is
amended to read as follows:
``Sec. 1836. Civil proceedings
``(a) Private Civil Actions.--
``(1) In general.--A person may bring a civil action under
this subsection if the person is aggrieved by--
``(A) a violation of section 1831(a) or 1832(a); or
``(B) a misappropriation of a trade secret that is
related to or included in a product that is produced
for or placed in interstate or foreign commerce.
``(2) Pleadings.--A complaint filed in a civil action
brought under this subsection shall--
``(A) describe with specificity the reasonable
measures taken to protect the secrecy of the alleged
trade secrets in dispute; and
``(B) include a sworn representation by the party
asserting the claim that the dispute involves either
substantial need for nationwide service of process or
misappropriation of trade secrets from the United
States to another country.
``(3) Civil ex parte seizure order.--
``(A) In general.--In a civil action brought under
this subsection, the court may, upon ex parte
application and if the court finds by clear and
convincing evidence that issuing the order is necessary
to prevent irreparable harm, issue an order providing
for--
``(i) the seizure of any property
(including computers) used or intended to be
used, in any manner or part, to commit or
facilitate the commission of the violation
alleged in the civil action; and
``(ii) the preservation of evidence in the
civil action.
``(B) Scope of orders.--An order issued under
subparagraph (A) shall--
``(i) authorize the retention of the seized
property for a reasonably limited period, not
to exceed 72 hours under the initial order,
which may be extended by the court after notice
to the affected party and an opportunity to be
heard;
``(ii) require that any copies of seized
property made by the requesting party be made
at the expense of the requesting party;
``(iii) require the requesting party to
return the seized property to the party from
which the property were seized at the end of
the period authorized under clause (i),
including any extension; and
``(iv) include an appropriate protective
order with respect to discovery and use of any
property that has been seized, which shall
provide for appropriate procedures to ensure
that confidential, private, proprietary, or
privileged information contained in the seized
property is not improperly disclosed or used.
``(C) Seizures.--A party injured by a seizure under
an order under this paragraph--
``(i) may bring a civil action against the
applicant for the order; and
``(ii) shall be entitled to recover
appropriate relief, including--
``(I) damages for lost profits,
cost of materials, and loss of good
will;
``(II) if the seizure was sought in
bad faith, punitive damages; and
``(III) unless the court finds
extenuating circumstances, to recover a
reasonable attorney's fee.
``(4) Remedies.--In a civil action brought under this
subsection, a court may--
``(A) issue--
``(i) an order for appropriate injunctive
relief against any violation described in
paragraph (1), including the actual or
threatened misappropriation of trade secrets;
``(ii) if determined appropriate by the
court, an order requiring affirmative actions
to be taken to protect a trade secret; and
``(iii) if the court determines that it
would be unreasonable to prohibit use of a
trade secret, an order requiring payment of a
reasonable royalty for any use of the trade
secret;
``(B) award--
``(i) damages for actual loss caused by the
misappropriation of a trade secret; and
``(ii) damages for any unjust enrichment
caused by the misappropriation of the trade
secret that is not addressed in computing
damages for actual loss;
``(C) if the trade secret described in paragraph
(1)(B) is willfully or maliciously misappropriated,
award exemplary damages in an amount not more than the
amount of the damages awarded under subparagraph (B);
and
``(D) if a claim of misappropriation is made in bad
faith, a motion to terminate an injunction is made or
opposed in bad faith, or a trade secret is willfully
and maliciously misappropriated, award reasonable
attorney's fees to the prevailing party.
``(b) Jurisdiction.--The district courts of the United States shall
have original jurisdiction of civil actions brought under this section.
``(c) Period of Limitations.--A civil action under this section may
not be commenced later than 3 years after the date on which the
misappropriation is discovered or by the exercise of reasonable
diligence should have been discovered. For purposes of this subsection,
a continuing misappropriation constitutes a single claim of
misappropriation.''.
(b) Definitions.--Section 1839 of title 18, United States Code, is
amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(5) the term `misappropriation' means--
``(A) 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
``(B) disclosure or use of a trade secret of
another without express or implied consent by a person
who--
``(i) used improper means to acquire
knowledge of the trade secret;
``(ii) at the time of disclosure or use,
knew or had reason to know that the knowledge
of the trade secret was--
``(I) derived from or through a
person who had used improper means to
acquire the trade secret;
``(II) acquired under circumstances
giving rise to a duty to maintain the
secrecy of the trade secret or limit
the use of the trade secret; or
``(III) derived from or through a
person who owed a duty to the person
seeking relief to maintain the secrecy
of the trade secret or limit the use of
the trade secret; or
``(iii) before a material change of the
position of the person, knew or had reason to
know that--
``(I) the trade secret was a trade
secret; and
``(II) knowledge of the trade
secret had been acquired by accident or
mistake; and
``(6) the term `improper means'--
``(A) includes theft, bribery, misrepresentation,
breach or inducement of a breach of a duty to maintain
secrecy, or espionage through electronic or other
means; and
``(B) does not include reverse engineering or
independent derivation.''.
(c) Technical and Conforming Amendment.--The table of sections for
chapter 90 of title 18, United States Code, is amended by striking the
item relating to section 1836 and inserting the following:
``1836. Civil proceedings.''.
(d) Rule of Construction.--Nothing in the amendments made by this
section shall be construed to modify the rule of construction under
section 1838 of title 18, United States Code, or to preempt any other
provision of law.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S5086)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S5086-5087)
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