oftware, called AEW, to replace ADCS. In late 2022 and early 2023, CACI became concerned that the Navy was not ensuring the confidentiality of ADCS. Those concerns culminated in February 2023 when CACI discovered that a contractor working on development of AEW had uploaded portions of the ADCS database schema to a Navy-shared website in violation of the ADCS security procedures. Over the next several weeks, CACI and the Navy had numerous communications about measures that CACI felt the Navy should take to protect the confidentiality of ADCS, but in April, the Navy informed CACI that it intended to resume its transition to AEW.CACI Seeks Preliminary Injunction for Alleged Trade Secret Act ViolationsAfter the Navy stopped responding to its inquiries about protecting ADCS’ confidentiality, CACI moved swiftly to obtain judicial relief. On April 11, CACI filed suit under the Administrative Procedure Act (APA), claiming that the Navy’s actions constituted violations of the Trade Secret Act (18 U.S.C. § 1905) — which is a criminal statute that prohibits the unauthorized disclosure of trade secrets by the government.CACI served the complaint along with a motion for a preliminary injunction on April 13. Judge Alston ordered the Navy to respond to the preliminary injunction motion by April 28 and held a hearing on the motion on May 10. The Court issued its ruling granting a preliminary injunction on May 19, just over five weeks after CACI filed suit.Subject Matter Jurisdiction and APA ApplicabilityCACI faced numerous legal hurdles to obtain a preliminary injunction, the first of which was establishing that the Court had subject matter jurisdiction. The Navy argued that CACI’s claim was a contract dispute governed by the Contract Disputes Act (CDA), and so the U.S. Court of Federal Claims had exclusive jurisdiction. The Court rejected that argument because the source of CACI’s claim was the APA and alleged violations of the Trade Secrets Act, not its contract with the Navy, and the injunctive

ents/uspto-host-virtual-panel-discussion-duty-disclosure-and-duty-reasonable-inquiry.2587 Fed. Reg. at 45765‒66 (citing 37 C.F.R. §1.56(c) to identify which individuals have a duty to disclose material information and citing 37 C.F.R. §1.4(d)(4)(i) to identify which parties have a duty of reasonable inquiry).2637 C.F.R. §1.56(b).27BIO at 11‒12 (citing Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 267 F.3d 1370, 1385 (Fed. Cir. 2001), Frazier v. Roessel Cine Photo Tech, Inc., 417 F.3d 1230, 1238 (Fed. Cir. 2005)).28BIO at 8.29BIO at 10; PhRMA at 14‒15.30See 37 C.F.R. § 1.59 (describing scope and process for expungement); Manual of Patent Examining Procedure (MPEP) § 724.02 (describing that a petition to expunge will be denied if materials are found to be material to patentability under USPTO’s standard); MPEP § 724.03 (information favorable to patentability such as secondary considerations of nonobviousness will be published).31PhRMA at 14‒16.32See 21 C.F.R. Part 20; FDCA § 301(j); 18 U.S.C. § 1905; 5 U.S.C. § 552; see generally 39 Fed. Reg. 44602 (Dec. 24, 1974).33BIO at 10.

The FAA Aircraft Registry recently announced, effective immediately, it is “restricting access to ancillary documents to only Federal employees and Federal contractors. Permit holders’ electronic access to ancillary documents has been restricted.” It is not clear what “ancillary documents” are no longer available in the Public Documents Room, but such documents would typically include previously filed statements in support of registration, powers of attorney, name change and merger documents, and trust documents.The FAA confirmed it is taking this action “Because of concern about the inadvertent release of proprietary data and personally identifiable information (PII),” and that “This decision is being made after careful Legal review regarding privacy concerns under the Trade Secrets Act (18 U.S.C. 1905) that prohibits disclosure of proprietary data, and the Privacy Act (5 U.S.C. 552a(b)) that prohibits disclosure of sensitive PII.”The good news is the Registry has confirmed it is looking into alternate means of providing the needed information, and to support the argument that alternate means are needed sooner rather than later, efforts are being made to emphasize to the Registry the importance of making some form of these documents available as part of the closing process. The ancillary documents are primarily utilized by law firms and title companies that examine the FAA records and are not often utilized or needed by the general public.

In order to do so successfully, a plaintiff must prove that the information was not “generally known to,” or “readily ascertainable through proper means by” the public, that reasonable measures under the circumstances were taken to keep the information confidential, and that the information holds independent economic value. 18 U.S.C. § 1905 United States v. Hsu, 155 F.3d 189, 194 (3d Cir. 1998); United States v. Yang, 281 F.3d 534, 543 (6th Cir. 2002) (noting “the purpose of the EEA was to provide a comprehensive tool for law enforcement personnel to use to fight theft of trade secrets”).Hsu, 155 F.3d at 194 (citing Richard J. Heffernan & Dan T. Swartwood, Trends in Intellectual Property Loss 4, 15 (1996) (Government spies migrated to the private sector following the Cold War and by 1996 it was estimated as much as $24 billion in trade secrets was being stolen and sold each year). 18 U.S.C. § 1832(a) (as amended by the Theft of Trade Secrets Clarification Act, Pub. L. No. 112-236, § 2, 126 Stat. 1627 (2012)) (‘Theft’ is defined to mean “(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information; (2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, tra

The act was first introduced following the sudden rise in IP theft after the Cold War. Prior to the passage of the EEA, the only federal statute that directly prohibited economic espionage was the Trade Secrets Act, 18 U.S.C. § 1905, which forbid the unauthorized disclosure of confidential government information, including trade secrets, by a government employee. The Trade Secrets Act, however, does not apply to private sector employees and thus was unsuccessful in addressing or remedying the issue more broadly.

18 See, e.g., H.R. 3035, 117th Cong.; S. 1683, 117th Cong.19 See supra note 1520 See, e.g., 21 U.S.C. § 331(j); 18 U.S.C. § 1905; 5 U.S.C. § 552(b)(4); Chrysler Corp. v. Brown, 441 U.S. 281 (1979)21 See, e.g., Ruckelhaus v. Monsanto Co., 467 U.S. 986 (1984); 28 U.S.C. § 149122 See USMCA Ch. 20. Morever, in the event of a TRIPS waiver, the USMCA provides that “the Parties shall immediately consult in order to adapt this [agreement] as appropriate.” USMCA Art. 20.6(c)

5 U.S.C. § 552(b)(4) states that “trade secrets and commercial or financial information obtained from a person and privileged or confidential” are exempt from disclosure to the public. 18 U.S.C. § 1905 makes it a federal crime for a federal employee to publish, divulge, disclose, or make known information related to trade secrets obtained in the course of his or her employment. DFARS 252.227-7037 is a contract clause, mandated by regulation, and implements 10 U.S.C. § 2321 and establishes the contractual rights and duties of the parties in the context of a dispute over technical data restrictive markings. Among other things, the clause mandates that the government “require a response . . . justifying and providing sufficient evidence as to the current validity of the asserted restriction” before issuing any final decision finding a restrictive marking to be improper.

Trump has harassed and intimidated the whistleblower in the Ukraine scandal.18 U.S.C. § 1905 – Disclosure of confidential information: In May 2017 Trump disclosed highly classified information to Russian Foreign Minister Sergey Lavrov and Ambassador Sergey Kilysak that endangered life of a CIA Russian asset; and in August 2019 disclosed a classified photo via one of his tweets about a failed Iranian attempt to launch a satellite.18 U.S.C. § 2074 – False weather reports: In September 2019 Trump released a false weather report concerning Hurricane Dorian’s projected path.Obstruction of JusticeThere is also credible information in the public record—namely, the Mueller Report—that reveals at least 10 instances of federal obstruction of justice committed by President Trump during his first two and one-half years in office.

(See 5 U.S.C. § 552(b)(4).) Because Exemption 4 is co-extensive with the Trade Secrets Act, 18 U.S.C. § 1905, agencies are “precluded” from releasing information that is covered by FOIA Exemption 4. (See McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 306 (D.C. Cir. 1999).)

The GAO will not step into private intellectual property disputes, nor will it adjudicate claims that the government has improperly released proprietary information. There are other fora for such relief: private parties may sue each other in state and federal courts for trade secret misappropriation, copyright infringement, or breach of confidentiality obligations, and a party may seek contractual relief against the government at the U.S. Court of Federal Claims or before a board of contract appeals, or seek an injunction under the Trade Secrets Act (18 U.S.C. § 1905). Or, for those favoring the court’s occasionally more ornate language, “well-nigh irrefragable proof.”