Is that intellectual property really a trade secret, maybe not!

On 21 November 2019, Haitao Xiang, previously employed by Monsanto and its subsidiary, The Climate Corporation, was indicted by a federal grand jury on charges of economic espionage and theft of trade secrets. One thing that the prosecution will need to prove at trial is that Monsanto and Climate Corporation employed reasonable precautionary measures to secure their trade secrets. Just marking it as a trade secret/proprietary information doesn’t make it so.

In a similar case, the United States v. Hanjuan Jin (2012), involving the theft of trade secrets from Motorola, the judge evaluated the physical security (access controls, alarms, security cameras and on-site security guards), network and computer measures (passwords, firewalls, and logon reminders), and administrative procedures (document markings, training programs, and confidentiality agreements) employed by Motorola to protect their trade secrets and determined that they met the threshold for reasonable precautionary measures. The implication is that if Motorola and The Climate Corporation had not enacted these “precautionary measures”, it may have been difficult for them to justify the claim that the material was indeed sensitive and that it’s loss caused significant damage.