,,ii #aacth ,,congress #ast ,session ,s4 #aggj ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,november #ba1 #bjac,mr4 ,flake introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to provide for ,federal civil liability for trade secret misappropriation in certain circumstances4 #a4 ,short title ,this ,act may be cited as the ,future of ,american ,innovation and ,research ,act of #bjac or the ,,fair ,act4 #b4 ,definitions ,in this ,act-- 7#a7 the term covered trade secret means a trade secret that is related to or included in a product or service that is used in or reasonably anticipated to be used in interstate or foreign commerce2 7#b7 the term improper means-- 7,a7 includes theft1 bribery1 misrepresentation1 breach or inducement of a breach of a duty to maintain secrecy1 and espionage through electronic or other means2 and 7,b7 does not include reverse engineering or independent derivation alone2 7#c7 the term misappropriate means-- 7,a7 to acquire a trade secret of another by improper means1 if the person who acquires the trade secret knows or has reason to know that the acquisition is by improper means2 or 7,b7 to disclose or use a trade secret of another without express or implied consent1 if the person who discloses or uses the trade secret-- 7i7 used improper means to acquire knowledge of the trade secret2 or 7ii7 at the time of the disclosure or use1 knows or has reason to know that his or her knowledge of the trade secret was-- 7,i7 derived from or through a person who used improper means to acquire the trade secret2 7,,ii7 acquired under circumstances giving rise to a duty to maintain the secrecy1 or limit the use1 of the trade secret2 or 7,,iii7 derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy1 or limit the use1 of the trade secret2 7#d7 the term person means a natural person1 corporation1 business trust1 estate1 trust1 partnership1 limited liability company1 association1 joint venture1 government1 governmental subdivision or agency1 or any other legal or commercial entity2 and 7#e7 the term trade secret means any information1 including a formula1 pattern1 compilation1 program1 device1 method1 technique1 or process1 that-- 7,a7 derives independent economic value1 actual or potential1 from not being generally known to1 and not being readily ascertainable through proper means by1 the public or other persons who can obtain economic value from the disclosure or use of the information2 and 7,b7 is the subject of efforts that are reasonable under the circumstances to maintain the secrecy of the information4 #c4 ,civil action 7a7 ,in general ,the owner or lawful possessor of a covered trade secret may bring a civil action against a person who misappropriates1 threatens to misappropriate1 or conspires to misappropriate the covered trade secret-- 7#a7 while located outside the territorial jurisdiction of the ,united ,states2 or 7#b7 on behalf of1 or for the benefit of1 a person located outside the territorial jurisdiction of the ,united ,states4 7b7 ,federal court jurisdiction ,the district courts of the ,united ,states shall have exclusive jurisdiction of a civil action under this ,act4 7c7 ,extraterritoriality ,a civil action under this ,act may arise from conduct outside the territorial jurisdiction of the ,united ,states if the conduct1 either by itself or in combination with conduct within the territorial jurisdiction of the ,united ,states1 causes or is reasonably anticipated to cause an injury-- 7#a7 within the territorial jurisdiction of the ,united ,states2 or 7#b7 to a ,united ,states person4 #d4 ,remedies ,in a civil action brought under this ,act1 a court may-- 7#a7 issue-- 7,a7 an order for appropriate injunctive relief against any conduct described in section #c7;a72 7,b7 an order requiring affirmative actions to be taken to protect a covered trade secret from further misappropriation2 and 7,c7 if the court determines that it would be unreasonable to prohibit further possession1 disclosure1 or use of a covered trade secret1 an order requiring payment of a reasonable royalty for any ongoing disclosure or use of a covered trade secret1 in addition to the damages described in paragraph 7#b72 7#b7 award-- 7,a7 damages for actual loss caused by the misappropriation of a covered trade secret2 and 7,b7 damages for any unjust enrichment caused by the misappropriation of a covered trade secret that is not addressed in computing damages for actual loss under subparagraph 7,a72 7#c7 if a trade secret is willfully or maliciously misappropriated1 award punitive or exemplary damages in an amount not more than twice the amount of the damages awarded under paragraph 7#b72 and 7#d7 if a claim of misappropriation is made in bad faith1 a motion to terminate an injunction is made or opposed in bad faith1 or a trade secret is willfully or maliciously misappropriated1 award reasonable costs and attorney's fees to the prevailing party4 #e4 ,procedure 7a7 ,pleadings 7#a7 ,complaint ,a complaint filed in a civil action brought under this ,act shall include a sworn representation by the plaintiff that the dispute involves conduct described in section #c7;a74 7#b7 ,affirmative defense ,it shall be an affirmative defense in a civil action brought under this ,act that each alleged covered trade secret in dispute was readily ascertainable through proper means by other persons who did not already know the covered trade secret at the time of any alleged misappropriation1 threat to misappropriate1 or conspiracy to misappropriate4 7b7 ,forum non conveniens ,in considering a motion to dismiss or stay on forum non conveniens grounds filed in a civil action brought under this ,act1 a court shall-- 7#a7 give great weight to the plaintiff's choice of forum2 and 7#b7 consider whether the plaintiff reasonably could receive fair and impartial treatment in the courts of the jurisdiction in which the defendant is domiciled4 7c7 ,anti-,suit injunctions ,in a civil action brought under this ,act1 the court may enter an injunction enjoining a defendant over whom the court has personal jurisdiction from pursuing subsequently filed litigation in another jurisdiction if-- 7#a7 the parties are the same in both matters2 7#b7 the resolution of the case before the enjoining court will be dispositive of the action to be enjoined2 and 7#c7 the action in the other jurisdiction threatens the jurisdiction of the court or the purposes of this ,act4 7d7 ,confidentiality ,in any proceeding relating to a civil action brought under this ,act1 the court shall enter any order and take any other action that is necessary and appropriate to preserve the confidentiality of trade secrets1 consistent with the requirements of the ,federal ,rules of ,civil ,procedure1 the ,federal ,rules of ,evidence1 and all other applicable laws4 7e7 ,statute of limitations ,a civil action brought under this ,act may not be commenced later than #c years after the date on which the conduct described in section #c7;a7 that forms the basis for the action was discovered or by the exercise of reasonable diligence should have been discovered4 #f4 ,seizures 7a7 ,in general ,in a civil action brought under this ,act1 the court may1 upon ex parte application and if the requirements under subsection 7b7 are satisfied1 issue an order 7referred to in this section as a seizure order7 providing for-- 7#a7 the seizure of any property 7including computers7 used1 in any manner or part1 to commit or facilitate the commission of conduct described in section #c7;a7 that is alleged in the civil action2 and 7#b7 the preservation of evidence in the civil action4 7b7 ,requirements ,a court may issue a seizure order if-- 7#a7 the applicant provides security in an amount that the court determines is adequate to pay any damages a person may be entitled to recover as a result of a wrongful seizure or wrongful attempted seizure under this section2 and 7#b7 the court finds that specific facts clearly show that-- 7,a7 any order other than an ex parte seizure order is not adequate to effectively cause the cessation of the conduct described in section #c7;a7 that forms the basis of the action2 7,b7 the applicant has not publicized the requested seizure2 7,c7 the applicant is likely to succeed in showing that the person against whom seizure is sought misappropriated1 threatened to misappropriate1 or conspired to misappropriate a covered trade secret of which the applicant is the owner or lawful possessor2 7,d7 the applicant will suffer an immediate and irreparable injury if a seizure is not ordered2 7,e7 the matter to be seized is located at the place identified in the application2 7,f7 the harm to the applicant that would be caused by denying the application outweighs the harm to the legitimate interests of the person against whom seizure is sought that would be caused by granting the application2 and 7,g7 if the applicant were to proceed on notice to the person against whom seizure is sought1 that person1 or persons acting in concert with that person1 would destroy1 move1 hide1 or otherwise make the matter to be seized inaccessible to the court4 7c7 ,procedure ,a seizure order shall-- 7#a7 direct that service of a copy of the seizure order shall be made by a ,federal law enforcement officer 7such as a ,united ,states marshal71 who1 upon making service1 shall carry out the seizure under the seizure order2 7#b7 direct that any items seized shall be taken into the custody of the court2 7#c7 include a protective order with respect to items seized1 to ensure that confidential1 private1 proprietary1 or privileged information contained in the items seized1 including any such information belonging to the defendant and third parties1 is appropriately protected and that access to the items seized is appropriately restricted2 and 7#d7 specify a hearing date1 not earlier than #c days and not later than #aj days after the seizure order is issued1 for the court to review whether the items seized should remain in the custody of the court4 7d7 ,order under seal 7#a7 ,in general ,except as provided under paragraph 7#b71 a seizure order1 together with any supporting documents1 shall be sealed until the person against whom the seizure order is directed has an opportunity to contest the seizure order4 7#b7 ,access after seizure ,a court shall allow a person against whom a seizure order is directed to have access to the seizure order and any supporting documents after the seizure is carried out4 7e7 ,seizure hearing 7#a7 ,date ,a court that issues a seizure order shall hold a hearing under this subsection on the date set by the court under subsection 7c77#d7 unless a party shows good cause for setting a different date4 7#b7 ,burden of proof ,at a hearing under this subsection1 the party that obtained the seizure order shall have the burden of proving that the factual and legal grounds necessary to support the seizure order are still in effect4 7#c7 ,dissolution or modification of order ,if a party fails to meet the burden specified under paragraph 7#b71 the court shall dissolve or modify the seizure order appropriately4 7#d7 ,discovery time limits ,the court may issue an order modifying the time limits for discovery under the ,federal ,rules of ,civil ,procedure as necessary to prevent the frustration of the purposes of a hearing under this subsection4 7f7 ,injured party 7#a7 ,cause of action ,a party that is injured by a seizure carried out in a civil action brought under this ,act and that prevails in the civil action may bring a civil action under this subsection against the applicant for the seizure order in a district court of the ,united ,states4 7#b7 ,remedies ,a party that prevails in a civil action brought under this subsection shall recover-- 7,a7 reasonable costs and attorney's fees incurred in defense against the seizure order described in paragraph 7#a7 unless the court finds that extenuating circumstances merit denying such costs and fees2 and 7,b7 lost profits and punitive damages if the seizure order described in paragraph 7#a7 was sought in bad faith4