Is the ITC the right venue for trade secrets theft?

If the right steps are taken, the US International Trade Commission is an attractive option for firms fearing the loss of their valuable IP, say Mary Prendergast, Mark Whitaker and Nicole Ang of Morrison Foerster.

Imagine this scenario: you suspect that an employee has walked out with your trade secrets or that a development partner has decided to make their own product using your IP. It seems increasingly likely you’ll need to file a lawsuit to get your trade secrets back or prevent your competitor from using them. 

You might consider filing in state court, likely under a version of the Uniform Trade Secrets Act (UTSA). But state court’s reach is limited, and if there is an international aspect to your trade secret problem, you may want to file in federal court under the Defend Trade Secrets Act (DTSA).

The DTSA, however, requires that at least some act in furtherance of misappropriation takes place in the US, and you’ll need to establish personal jurisdiction over the defendant. What if the perpetrator is located abroad, or the misappropriation took place abroad, with the fruits of that misappropriation sold in the US?