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Recent Legislation/Law (Defend Trade Secrets Act and Energy Policy Modernization Act)

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Greetings from D.C. Two pieces of legislation with potential implications for the tech transfer (and intellectual property [IP] ownership) community made significant progress in the legislative process in recent days—one passed the full Senate and the other became law. On April 22 the Senate passed the Energy Policy Modernization Act, and on May 11 President Obama signed into law the Defend Trade Secrets Act.

Defend Trade Secrets Act (PL 114-153)

The Defend Trade Secrets Act (DTSA) was first introduced in July 2015 with the goal of amending the federal criminal code to create “a private civil cause of action for trade secret misappropriation.” As reported in the blog PatentDocs, “[T]he new law is the most significant expansion of Federal intellectual property law in a generation, and brings with it significant benefits—but also new responsibilities—for intellectual property owners and employers. In this era of narrowed subject-matter eligibility for patenting, the DTSA may provide enough of an incentive for intellectual property owners to keep more information as trade secrets.”

The DTSA includes three key provisions of note for IP owners. In addition to the federal civil cause of action for trade secret misappropriation, the law also has “an ex parte seizure provision that can be invoked in extraordinary circumstances [and] whistleblower protections that preempt criminal and civil liability under either Federal or state law, and place certain new obligations upon employers.”

The new law appears to be largely noncontroversial (passing the Senate 87-0 and the House 410-2), with positive commentary from a variety of sources. IP blog Patently-O has provided a markup of how the new law amends the Economic Espionage Act, with links to more detail on the process from introduction to law.

Energy Policy Modernization Act (S. 2012)

In late April the Senate passed by a vote of 85-12 the Energy Policy Modernization Act, a comprehensive and, for the most part bipartisan, omnibus (Department of Energy [DOE]) energy policy bill. As reported by the American Institute of Physics (AIP), this bill “reflects the policy contributions of 80 senators, and is the product of ten legislative and oversight hearings, drawing from over 100 individual bills, and an extensive floor debate and amendment process. It is the first energy policy bill the Senate has passed since the ‘Energy Independence and Security Act in 2007,’ and it includes a number of provisions that could have major impacts on the science community…” See Senator Murkowski’s press release on the bill’s passage here.

There is much to digest in this all-encompassing bill, but several provisions will be of particular interest to the DOE tech transfer community. Title IV - Accountability, Subtitle C - Innovation, Sections 4201-4207, includes several new programs and authorizations for DOE lab tech transfer efforts. One allows funding for early-stage demonstration activities to enhance tech transfer, another promotes increased access for small business entities in the tech transfer process, and a third establishes “micro-labs” located in close proximity to national laboratories to enhance collaborative opportunities with external partners.

As is typical in cases of omnibus legislation, this bill pulls from a multitude of other related bills, both from current and prior sessions (e.g., the micro-labs component was floated in the last Congress). The House passed its own version of a comprehensive DOE lab modernization and tech transfer bill in 2013 and again in summer 2015, some of which may eventually find its way into a final consolidated bill at some point in the future (see DC Dispatch 4-15-15 and 6-15-15).

Gary can be reached at gkjones.ctr@federallabs.org.

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