Trade Secrecy Injunctions, Disclosure Risks, and \u3ci\u3eeBay\u3c/i\u3e\u27s Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court\u27s eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply pre-sumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four-factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts\u27 more deliberative approach to patent injunctions post-eBay has been viewed as beneficial for the patent system. Over the past decade, eBay\u27s influence has migrated to other areas of IP. This article offers the first account of eBay\u27s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP--for example, the hard-to-quantify risk that disclosure poses to trade secret owners--has lessened eBay\u27s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret--that is, where a defendant builds upon a plaintiff\u27s trade secret but does not disseminate it--courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility