Trade Secret Protection in Delaware in DE — Ip Legal… | CGMIMM
Ip · DE
Trade Secret Protection in Delaware
Delaware trade secrets are protected under both state Uniform Trade Secrets Act (UTSA) and federal Defend Trade Secrets Act (DTSA, 2016). No registration required — but reasonable secrecy efforts are.
Published May 8, 2026
## Trade secret protection in Delaware
**Trade secrets** protect valuable business information that's kept confidential. Unlike patents, trade secrets:
- Don't require registration
- Last forever (as long as kept secret)
- Cover broader subject matter than patents
- BUT lose protection if information becomes public
## What qualifies as a trade secret
Three elements (under UTSA / DTSA):
**1. Information** of any kind:
- Formulas, processes, techniques
- Patterns, methods, programs
- Customer lists, supplier lists
- Pricing, business plans
- Source code, algorithms
- Proprietary research / data
**2. Independent economic value** from being secret:
- Actually or potentially valuable
- Not generally known in industry
- Not readily ascertainable through proper means
**3. Reasonable measures** to maintain secrecy:
- Confidentiality agreements / NDAs
- Need-to-know access controls
- Password protection / encryption
- Marking documents "confidential" / "trade secret"
- Employee training
- Physical security
- Exit procedures for departing employees
Without reasonable measures, no trade-secret protection.
## Famous trade secrets
- **Coca-Cola formula** (since 1886)
- **KFC's 11 herbs and spices**
- **WD-40 formula**
- **Listerine's original formula**
- **Google's search algorithm**
- **Apple's iPhone source code**
- **Most algorithm-based tech companies' core IP**
## Trade secret vs patent
| | Trade Secret | Patent |
|---|---|---|
| Registration | None required | USPTO required |
| Duration | Forever (if kept secret) | 20 years (utility) |
| Cost | Low | $15K-$30K+ |
| Subject matter | Broad | Restricted (no abstract ideas) |
| Disclosure | Kept secret | Publicly disclosed |
| Reverse engineering | Defense (legal) | Prohibited |
| Independent invention | Defense (legal) | Prohibited |
| Competitor work-around | Possible | Limited |
**When trade secret > patent:**
- Process / method that's hard to reverse engineer
- Information that's not patentable (business methods, customer lists)
- Long-term value beyond 20-year patent term
- Want to keep competitors guessing
**When patent > trade secret:**
- Easily reverse-engineered products
- Want exclusive rights for fixed term
- Need the public protection of issued patent
- Competitors might independently invent
## Misappropriation
Trade-secret theft includes:
**Improper acquisition:**
- Theft, bribery, espionage
- Breach of confidentiality duty
- Hacking
- Inducement of breach by another
**Improper disclosure / use:**
- Unauthorized use after improper acquisition
- Disclosure by someone with duty of confidentiality
- Use with knowledge of improper acquisition
**NOT misappropriation:**
- Independent development
- Reverse engineering of legitimately purchased products
- Information learned from public sources
- Information obtained from third party in good faith without notice
## State law — Uniform Trade Secrets Act
**UTSA** has been adopted by all states EXCEPT New York, which uses common-law misappropriation. UTSA provides:
- Statutory framework for trade-secret claims
- Injunctive relief
- Actual damages
- Unjust enrichment
- Reasonable royalty (alternative to damages)
- Exemplary damages (up to 2x) for willful misappropriation
- Attorney's fees for willful misappropriation
- 3-year statute of limitations from discovery (typically)
## Federal law — Defend Trade Secrets Act (DTSA, 2016)
**DTSA** added federal civil cause of action:
- Federal court jurisdiction
- Same general framework as UTSA
- **Civil seizure** — extraordinary remedy to prevent flight of evidence
- Same damages framework
- 3-year statute of limitations
**Whistleblower provisions** (§ 1833) — IMPORTANT:
- Employers MUST notify employees of immunity for disclosing trade secrets to government / attorney for reporting suspected violations
- Failure to notify = no exemplary damages or attorney's fees in DTSA actions
- Notice required in employee agreements + handbooks + IP policies
## Federal Economic Espionage Act (EEA, 1996)
**Criminal prosecution** for trade-secret theft:
- 18 U.S.C. § 1831 — Economic espionage benefiting foreign government (up to 15 years)
- 18 U.S.C. § 1832 — Theft of trade secrets (up to 10 years)
- Increasingly used for cases involving China and other foreign competitors
## Common scenarios
**1. Departing employee.** Takes customer list, formulas, plans to new employer.
**2. Contractor / vendor.** Mishandles confidential information shared during engagement.
**3. Joint venture / partnership.** Information shared in business discussion misused.
**4. Industrial espionage.** Hacking, infiltration, paid informants.
**5. Cybersecurity breach.** Hacked computer systems exfiltrating IP.
**6. Reverse engineering challenges.** Especially in software / hardware.
## Litigation strategy
Common steps:
1. **Cease-and-desist letter** — sometimes resolves
2. **Civil seizure motion** (DTSA) — for emergency
3. **TRO / preliminary injunction** — quickly
4. **Discovery** — emails, devices, forensic analysis
5. **Settlement** — most cases settle pretrial
6. **Trial** — if necessary
## Damages typically pursued
- **Actual losses** — lost profits, lost business value
- **Unjust enrichment** — defendant's profits from misappropriation
- **Reasonable royalty** — what licensing would have cost
- **Exemplary damages** — up to 2x for willful misappropriation
- **Attorney's fees** for willful misappropriation
- **Injunctive relief** — preventing further use
## Best practices for protection
**Identify:**
- Inventory trade secrets
- Mark documents
- Limit access (need-to-know)
**Contracts:**
- Employee NDAs (with DTSA whistleblower notice!)
- Vendor / contractor NDAs
- Customer NDAs (when sharing)
- Joint venture confidentiality
- Non-disclosure during M&A diligence
**Technology:**
- Access controls
- Encryption
- Logging / audit trails
- DLP (data loss prevention) software
- Secure file transfer
**Personnel:**
- Training programs
- Exit interviews
- Off-boarding procedures
- Forensic imaging of devices
- Letters to new employers / former employees
**Physical:**
- Locked offices / files
- Visitor policies
- Clean-desk policies
- Secure document destruction
## What you should do
If you have valuable confidential business information in Delaware: implement a trade-secret protection program — document what's secret, restrict access, use contracts. If you suspect misappropriation: act quickly. Most Delaware IP / business-litigation attorneys handle trade-secret cases. Many cases benefit from forensic technology consultants.
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*This guide is general information about federal and Delaware trade-secret law as of early 2026 and is not legal advice. Trade-secret cases are time-sensitive and evidence-driven. Talk to a licensed Delaware IP attorney about your specific situation.*
This guide is for general information only and does not constitute legal advice. Laws change and outcomes depend on your specific situation — talk to a licensed attorney before acting on anything you read here.