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减少盗窃美国商业秘密战略-英文-无附件

ADMINISTRATION STRATEGY

ON MITIGATING THE

THEFT OF U.S. TRADE SECRETS

 

 

 

FEBRUARY 2013

 

 

Acknowledgement

This strategy is the product of a collaborative effort and reflects the recommendations and input from various entities of the U.S. government, including the Departments of Commerce, Defense,Homeland Security, Justice, State, Treasury, the Office of the Director of National Intelligence and the Office of the United States Trade Representative. This strategy reflects the research and reporting by the Departments of Commerce and Defense as well as the Office of the National Counterintelligence Executive respectively.

 

Table of Contents

    Administration Strategy on Mitigating the Theft of U.S. Trade Secrets

    Introduction

    Strategy Action Items

    1. Focus Diplomatic Efforts to Protect Trade Secrets Overseas

    2. Promote Voluntary Best Practices by Private Industry to Protect Trade Secrets

    3. Enhance Domestic Law Enforcement Operations

    4. Improve Domestic Legislation

    5. Public Awareness and Stakeholder Outreach

    Appendix

    Annexes

    Annex A: U.S. Patent and Trademark Office Overview of U.S. Trade Secret Laws and

Changed Landscape

    Annex B: Summary of Department of Justice Trade Secret Theft Cases

    Annex C: 2011 Office of the National Counterintelligence Executive Report

    Annex D: 2012 Department of Defense Defense Security Service Report

 

 

Administration Strategy on Mitigating

the Theft of U.S. Trade Secrets

We are going to aggressively protect our intellectual property. Our single greatestasset is the innovation and the ingenuity and creativity of the American people.It is essential to our prosperity and it will only become more so in this century.

President Barack Obama

 

Introduction

We cannot look back years from now and wonder why we did nothing

in the face of real threats to our security and our economy.

President Barack Obama

The Administration is focused on protecting the innovation that drives the American economy and

supports jobs in the United States. As a Nation, we create products and services that improve the worldsability to communicate, to learn, to understand diverse cultures and beliefs, to be mobile, to live better and longer lives, to produce and consume energy efficiently and to secure food, nourishment and safety.Most of the value of this work is intangibleit lies in Americas entrepreneurial spirit, our creativity,ingenuity and insistence on progress and in creating a better life for our communities and for communities around the world. These intangible assets are often captured as intellectual propertycopyrights,patents, trademarks and trade secrets, and reflect Americas advantage in the global economy.

Emerging trends indicate that the pace of economic espionage and trade secret theft against U.S. corporations is accelerating.1 There appears to be multiple vectors of attack for persons and governments seeking to steal trade secrets. Foreign competitors of U.S. corporations, some with ties to foreign governments,have increased their efforts to steal trade secret information through the recruitment of current or former employees.2 Additionally, there are indications that U.S. companies, law firms, academia, and financial institutions are experiencing cyber intrusion activity against electronic repositories containing trade secret information.3 Trade secret theft threatens American businesses, undermines national security, and places the security of the U.S. economy in jeopardy. These acts also diminish U.S. export prospects around the globe and put American jobs at risk.

As an Administration, we are committed to continuing to be vigilant in addressing threatsincluding

corporate and state sponsored trade secret misappropriationthat jeopardize our status as the worlds leader for innovation and creativity. We will continue to act vigorously to combat the theft of U.S. trade secrets that could be used by foreign companies or foreign governments to gain an unfair economicedge. Departments across the U.S. government have roles in protecting trade secrets and preserving our nations economic and national security. This strategy recognizes the crucial role of trade secrets in the U.S. economy and sets out a means for improved coordination within the U.S. government to protect them.

 

Strategy Action Items

1. Focus Diplomatic Efforts to Protect Trade Secrets Overseas

Where every nation plays by the rulesand intellectual property

and new technologies that fuel innovation are protected.

President Barack Obama

In order to protect American innovation globally, trading partners must treat trade secret theft as a

serious issue. The Administration, through the appropriate agencies, will take several steps to ensure

this is the case.

 

Sustained and Coordinated International Engagement with Trading Partners

The Administration will continue to apply sustained and coordinated diplomatic pressure on other

countries to discourage trade secret theft. This will be achieved by utilizing a whole of government

approach directed at a sustained, consistent and coordinated message from all appropriate agencies to foreign governments where there are regular incidents of trade secret theft. Other governments must recognize that trade secret protection is vital to the success of our economic relationships and that they must take steps to strengthen their enforcement against trade secret theft.

The theft of U.S. trade secrets by foreign competitors or foreign governments has been and will continue to be raised by the most senior levels of the Administration with countries of concern. The relevant Federal agencies, including the Departments of Commerce, Defense, Justice, Homeland Security, State,Treasury and the U.S. Trade Representative, as appropriate, will continue to make it clear to the governments of those nations the importance the U.S. places on the protection of trade secrets and to press those governments to take action to reduce and resolve incidents of trade secret theft.

To assist in this effort, the Department of State will track scheduled diplomatic engagements and

meetings by senior Administration officials with governments of countries where there are regular incidents of trade secret theft or that may be complicit in trade secret theft. During these meetings, senior Administration officials will deliver appropriate messages to their foreign counterparts to express the Administrations focus on reducing the incidents of trade secret theft, including improved legal frameworks, stronger enforcement of existing laws and strong and efficient remedies for trade secret owners.

Additionally, the Departments of Commerce and State and the U.S. Trade Representative will seek to

build coalitions with other countries to deliver similar messages to countries of concern and to press

jointly, or in coordination, for improved protection of trade secrets.

The Department of State and the U.S. Patent and Trademark Office (USPTO), through the USPTOs

intellectual property Attachés, will also ensure that U.S. embassies located in countries that are known to present high-risk conditions for trade secret theft will incorporate trade secret protection into their established Intellectual Property Rights (IPR) Working Group plans, with input from appropriate agencies.The annual work plans will include concrete steps to work with the host government to address trade secret theft. The identified embassies will also include discussions of trade secret issues as part of the IPR Working Groups regular internal meetings in order to improve communication and coordination inside the embassies. The Embassy-led Working Groups will also enhance engagement with U.S.industry representatives in their host countries on trade secret theft issues.

Theft of Ford Motor Company Trade Secrets

In April 2011, Yu Xiang Dong was sentenced to 70 months in federal prison for theft of trade secrets and economic espionage. Yu was a former Ford Motor Company employee who resigned to work at Beijing Automotive Company. He copied 4,000 Ford documents onto an external hard drive, which he took to China. Ford valued the loss of the trade secrets at $50 million dollars.

 

Trade Policy Tools

The Administration will utilize trade policy tools to increase international enforcement against trade

secret theft to minimize unfair competition against U.S. companies. The U.S. Trade Representative (USTR) will make additional efforts to promote adequate and effective protection and enforcement of trade secrets. These Administration efforts will include:

Deeper cooperation with trading partners that share U.S. interests with the objective of promoting enhanced trade secret and other intellectual property protection in ways that are consistent with U.S. approaches and helpful in curbing trade in goods and services containing stolen trade secrets;

Targeting weaknesses in trade secret protection through enhanced use of the annual Special 301 process4, including the Special 301 Report, action plans and related tools to gather and,where appropriate, act upon information about the adequacy and effectiveness of trade secret protection by U.S. trading partners;

Seeking, through USTR-led trade negotiations such as the Trans Pacific Partnership, new provisions on trade secret protections requiring parties to make available remedies similar to those provided for in U.S. law; and

Continuing to raise trade secret protections as a priority issue in all appropriate bilateral, regional, and multilateral trade discussions and appropriate trade and IP-related forums, including the Trade-Related Aspects of Intellectual Property Rights Council and the Asia-Pacific Economic Cooperation, informed by interagency and stakeholder input regarding partners and issues of concern.

 

International Law Enforcement Cooperation

International law enforcement cooperation is a critical part of combating the global nature of trade secret theft. To assist in domestic investigations of trade secret theft with an international element, Federal law enforcement agencies will also use, as appropriate, formal cooperative agreements

or arrangements with foreign governments as a tool to strengthen relationships and investigative efforts. Federal law enforcement agencies will encourage cooperation with their foreign counterparts to:

Enhance efforts to pursue domestic investigations of trade secret theft by foreign entities; and

Encourage foreign law enforcement to pursue those targets themselves.

 

International Training and Capacity Building

The Department of Commerce will use existing programs5 to educate foreign government officials and increase foreign capacity to protect trade secrets from theft and unlawful commercialization.

The Department of Justice and the Federal Bureau of Investigation, in collaboration with the Departments of Homeland Security and State, will include trade secret theft awareness and enforcement instruction in applicable international law enforcement training forums, such as the International Law Enforcement Academies and in country specific training missions.

 

International Organizations

The Administration will work with global organizations to strengthen international enforcement efforts

and increase cross-border diplomatic and law enforcement cooperation. These efforts will include:

The Departments of Commerce, Homeland Security, State, and Treasury and USTR will work with international organizations to ensure that there is robust trade secret protection abroad.

The Department of Justice will continue to work with the European Police Organization and the International Criminal Police Organization on collaborative efforts to address trade secret misappropriation from the U.S. to recipients located abroad.

 

Theft of DuPont Trade Secrets

Hong Meng was a research chemist for DuPont. He was involved in researching Organic Light Emitting Diodes (OLED). DuPonts OLED research efforts resulted in the development of a breakthrough and proprietary chemical process for OLED displays. Mr. Meng stole trade secret compounds and passed them to a Chinese university. He was caught by the FBI and prosecuted by the U.S. Attorneys Office for the District of Delaware and was sentenced to 14 months in federal prison. DuPont valued the loss of the trade secrets at $400 million dollars.

 

Trade Policy Tools

The Administration will utilize trade policy tools to increase international enforcement against trade

secret theft to minimize unfair competition against U.S. companies. The U.S. Trade Representative (USTR) will make additional efforts to promote adequate and effective protection and enforcement of trade secrets. These Administration efforts will include:

Deeper cooperation with trading partners that share U.S. interests with the objective of promoting enhanced trade secret and other intellectual property protection in ways that are consistent with U.S. approaches and helpful in curbing trade in goods and services containing stolen trade secrets;

Targeting weaknesses in trade secret protection through enhanced use of the annual Special 301 process4, including the Special 301 Report, action plans and related tools to gather and,where appropriate, act upon information about the adequacy and effectiveness of trade secret protection by U.S. trading partners;

Seeking, through USTR-led trade negotiations such as the Trans Pacific Partnership, new provisions on trade secret protections requiring parties to make available remedies similar to those provided for in U.S. law; and

Continuing to raise trade secret protections as a priority issue in all appropriate bilateral, regional, and multilateral trade discussions and appropriate trade and IP-related forums, including the Trade-Related Aspects of Intellectual Property Rights Council and the Asia-Pacific Economic Cooperation, informed by interagency and stakeholder input regarding partners and issues of concern.

 

International Law Enforcement Cooperation

International law enforcement cooperation is a critical part of combating the global nature of trade secret theft. To assist in domestic investigations of trade secret theft with an international element, Federal law enforcement agencies will also use, as appropriate, formal cooperative agreements or arrangements with foreign governments as a tool to strengthen relationships and investigative efforts. Federal law enforcement agencies will encourage cooperation with their foreign counterparts to:

Enhance efforts to pursue domestic investigations of trade secret theft by foreign entities; andEncourage foreign law enforcement to pursue those targets themselves.

 

International Training and Capacity Building

The Department of Commerce will use existing programs5 to educate foreign government officials and increase foreign capacity to protect trade secrets from theft and unlawful commercialization. The Department of Justice and the Federal Bureau of Investigation, in collaboration with the Departments of Homeland Security and State, will include trade secret theft awareness and enforcement instruction in applicable international law enforcement training forums, such as the International Law Enforcement Academies and in country specific training missions.

 

International Organizations

The Administration will work with global organizations to strengthen international enforcement efforts and increase cross-border diplomatic and law enforcement cooperation. These efforts will include:

The Departments of Commerce, Homeland Security, State, and Treasury and USTR will work with international organizations to ensure that there is robust trade secret protection abroad.

The Department of Justice will continue to work with the European Police Organization and the International Criminal Police Organization on collaborative efforts to address trade secret misappropriation from the U.S. to recipients located abroad.

 

Theft of DuPont Trade Secrets

Hong Meng was a research chemist for DuPont. He was involved in researching Organic Light Emitting Diodes (OLED). DuPonts OLED research efforts resulted in the development of a breakthrough and proprietary chemical process for OLED displays. Mr. Meng stole trade secret compounds and passed them to a Chinese university. He was caught by the FBI and prosecuted by the U.S. Attorneys Office for the District of Delaware and was sentenced to 14 months in federal prison. DuPont valued the loss of the trade secrets at $400 million dollars.

 

2. Promote Voluntary Best Practices by Private Industry to Protect Trade Secrets

In America, innovation doesnt just change our lives. Its how we make a living.

President Barack Obama

Advancements in technology, increased mobility, rapid globalization, and the anonymous or pseudonymous nature of the Internet create growing challenges in protecting trade secrets.6 Companies need to consider whether their approaches to protecting trade secrets keeps pace with technology and the evolving techniques to acquire trade secrets enabled by technology. The Administration encourages companies to consider and share with each other practices that can mitigate the risk of trade secret theft. These best practices should encompass a holistic approach to protect trade secrets from theft via a wide array of vulnerabilities.

 

Support and Promote Voluntary Best Practices

The U.S. Intellectual Property Enforcement Coordinator (IPEC), working with appropriate U.S. government agencies, including the Departments of Justice and State, will help facilitate efforts by organizations and companies to develop industry led best practices to protect trade secrets. The Administration will encourage companies and industry associations to develop and adopt voluntary best practices, consistent with anti-trust laws, and help highlight those practices. Many private sector companies have recently begun to focus on examining their procedures in order to understand the threat and potential impact of trade secret misappropriation. These organizations are already working to develop best practices that companies can voluntarily implement to protect themselves against trade secret theft. The Administration will work to support groups crafting industry-driven initiatives that meet these objectives.

Identified best practices may not be suitable for every company or organization. Whether or not specific information is regarded as a trade secret is a matter determined by an individual company, not by industry at large. Additionally, for information to be legally protected as a trade secret, businesses need only take reasonable measures to protect the secrecy of such information which may vary by company and by industry. In practice, however, businesses may choose to take additional measures to protect trade secret information where appropriate. In identifying and promoting the adoption of best practices, it should be emphasized that such guidelines are intended solely to offer suggestions to assist businesses in safeguarding information they wish to keep secret and are not designed to be a minimum standard of protection.

The Administration encourages organizations and companies to examine internal operations and policies to determine if current approaches are mitigating the risks and factors associated with trade secret misappropriation committed by corporate and state sponsors. Some areas that private industries could consider for voluntary best practices include:

Research and development compartmentalization;

Information security policies;

Physical security policies;

Human Resources policies; and

 

Theft of General Motors Trade Secrets

On November 30, 2012, a Federal jury in Detroit found Shanshan Du, a former General Motors (GM) engineer, and her husband, Yu Qin, both found guilty of stealing GM trade secrets related to hybrid vehicle technology worth $40 million. Du and Qin tried to pass the trade secrets to Chinese automaker Chery Automobile Company.

 

3. Enhance Domestic Law Enforcement Operations

Our workers are the most productive on Earth, and if the playing

field is level, I promise youAmerica will always win.

President Barack Obama

As a result of the Attorney Generals Task Force on Intellectual Property, established in 2010, the Federal Bureau of Investigation (FBI), which has primary responsibility for investigating domestic offenses under the Economic Espionage Act, increased the number of trade secret theft investigations by 29 percent from 2010.

 

Investigations and Prosecutions of Trade Secret Theft

The Department of Justice has made the investigation and prosecution of corporate and state sponsored trade secret theft a top priority. The Department of Justice and the FBI will continue to prioritize these investigations and prosecutions and focus law enforcement efforts on combating trade secret theft. The FBI is also expanding its efforts to fight computer intrusions that involve the theft of trade secrets by individual, corporate, and nation-state cyber hackers. The Department of Homeland Security component law enforcement agencies will continue to work cooperatively with the Department of Justice when its investigations uncover evidence of trade secret theft.

 

Theft of Cargill and Dow Chemical Trade Secrets

In October 2011, Kexue Huang, a former employee of both Cargill and Dow Chemical passed trade secret information to a Chinese university that was developing organic pesticides on behalf of Chinas government. Financial losses to both companies from his criminal acts exceed $7 million. In December 2011, after many months of hard work by FBI agents, CCIPS prosecutors and the U.S. Attorneys Offices in Indiana and Minnesota, Huang was sentenced to 87 months in prisonthe strongest sentence possible.

 

Law Enforcement and Intelligence Information Sharing

The Office of the Director of National Intelligence (ODNI)

ODNI will coordinate within the intelligence community to inform the private sector about ways to identify and prevent the theft of trade secrets that benefit a state sponsor or an entity with ties to a foreign government. ODNI will coordinate expanded discussions between the intelligence community and the private sector, focusing on four main aspects of the threat posed by trade secret theft:

The number and identity of foreign governments involved in trade secret misappropriation;

The industrial sectors and types of information and technology targeted by such espionage;

The methods used to conduct such espionage; and

The dissemination, use, and associated impact of information lost in trade secret misappropriation.

ODNI, though the Office of the National Counterintelligence Executive (ONCIX) will also counter the threat of trade secret misappropriation by sharing threat warning and awareness information with the private sector, as well as imparting counterintelligence tradecraft procedures tailored to the private sector.7 In order to support this strategy, ONCIX will brief trade association groups and conferences on industry specific threats.

 

Report to Congress on Foreign Economic Collection & Industrial Espionage

In its November 2011 report to Congress, ONCIX determined that foreign collectors may have the greatest interest in the following areas:

Information and communications technology;

Business information that pertains to supplies of scarce natural resources or that provides foreign actors an edge in negotiations with U.S. businesses or the U.S. government;

Military technologies, particularly marine systems, unmanned aerial vehicles, and other aerospace/aeronautic technologies; and

Civilian and dual-use technologies in sectors likely to experience fast growth, such as clean energy and

health care or pharmaceuticals.

The ONCIX also explored characteristics that make U.S. businesses more vulnerable to trade secret misappropriation including the use of portable devices; storage of information; globalization of economic activities; digitization of business records, research results, and other sensitive economic or technology-related information. A company within one of the four categories identified above is even more susceptible, when these high-risk factors are also present. The report also identified other risk factors. For example:

The increase in data access points created by conducting business on smartphones and other mobile devices and storing information in the cloud increases the opportunities for malicious actors to steal or manipulate information.

Companies with employees who work remotely are also likely to be at an increased risk of theft.

 

The Department of Justice

The Department of Justice and the FBI will continue to report on trade secret investigations and prosecutions. Additionally, the FBI will continue its outreach and education efforts with the private sector through various local, regional and national initiatives. At the local level, each of the FBIs 56 field offices will continue to work with academic institutions, manufacturers, laboratories and other entities that are located within the field offices area of responsibility and are perceived as being potentially at risk for trade secret theft. At the regional level, the FBI will continue to meet regularly with other government agencies, industry, and academia to share information about insider threats, economic espionage and trade secret theft.

 

Theft of Valspar Trade Secrets

David Yen Lee worked for Valspar, an Indiana paint company. He stole trade secrets from Valspar and tried to pass them to Nippon Paint in China. Mr. Lee purchased a plane ticket to China, but was caught by the FBI before he could leave the U.S. On December 8, 2010, Mr. Lee was sentenced to 18 months in prison. Valspar valued the trade secrets between $7 and $20 million.

 

The FBIs headquarters will review the effectiveness of its local and regional efforts with a focus on the extent of outreach to companies and entities such as cleared defense contractors9, universities, hospitals, high science companies, and emerging technology firms. The FBI will continue to engage with trade secrets owners through several national outreach organizations, including the Domestic Security Alliance Council, the National Security Business Alliance Council, and InfraGard, and will continue to work closely with various Information Sharing and Analysis Centers. These local, regional and national effortswill continue to reach a broad swath of companies in multiple sectors such as information technology, communications, aeronautics, engineering, energy, financial services, and consumer retail. The FBIs engagement with the private sector promotes reasonable safeguards based on recent intelligence, case studies, and emerging trends.

The Department of Justice and the FBI will continue to train prosecutors and investigators on trade secret theft with the goal of increasing the number of successful investigations and prosecutions for violations of the Economic Espionage Act. These training events will target domestic law enforcement officers, prosecutors, and international partners. These events will include both a trade secret specific curriculum as well as broader intellectual property rights enforcement themes in which trade secret theft is a component

 

The National Intellectual Property Rights Coordination Center

The National Intellectual Property Rights Coordination Center will obtain leads regarding trade secret misappropriation through its Report IP Theft Initiative.

 

Theft of Motorola Trade Secrets

In November 2011, Customs and Border Protection officers at Chicagos OHare Airport stopped Hanjuan Jin, a former Motorola software engineer, while she was allegedly carrying 1,000 sensitive Motorola documents, $30,000 in cash, and a one-way ticket to China. Jin was in the process of traveling to China to turn over stolen trade secret information relating to mobile telecommunications to Kai Sun News Technology Co., also known as SunKaisens, and to the Chinese military.

 

The Department of Defense

The Department of Defense, through the Defense Security Service, will collect, analyze and report on threat information to cleared industries that support Department of Defense programs and the missions of other U.S. government departments and agencies. The Defense Security Service, in coordination with its partner agencies, will continue to provide advice to those cleared industry partners and deliver security training and education on counterintelligence. Through its annual report on trend analysis of threats targeting to U.S. defense technologies, the Defense Security Service will continue to communicate its analysis to industrial partners of the U.S. government.

The Defense Intelligence Agency will co-chair the National Critical Systems and Joint Technology Task Force with the FBI. This effort will continue to provide a collaborative forum to provide input into the counterintelligence efforts to protect critical and emerging technologies by Federal agencies

 

4. Improve Domestic Legislation

Congress should make sure that no foreign company has

an advantage over American manufacturing.

President Barack Obama

In March 2011, the Administration directed federal agencies to review relevant existing Federal intellectual property laws. The goal of this review was to assess if current laws were effective in combatting infringement and protected intellectual property rights. Based on that review, the IPEC sent to Congress the Administrations 2011 White Paper on Intellectual Property Enforcement Legislative Recommendations (White Paper). This document recommended legislation to increase the statutory maximum for economic espionage (18 USC §1831) from 15 years in prison to at least 20 years.

Additionally, the Administration also recommended legislation to direct the U.S. Sentencing Commission to consider increasing the U.S. Sentencing Guideline range for the theft of trade secrets and economic espionage, including trade secrets transferred or attempted to be transferred outside the U.S.

The White Paper supported the efforts of Members of Congress who worked in a bicameral and bipartisan manner to introduce legislation to improve the protection of trade secrets in the 112th Congress. President Obama signed two important pieces of legislation into law that will have an immediate and positive impact on prospective trade secret prosecutions:

Public Law112-236The Theft of Trade Secrets Clarification Act of 2012 (S. 3642), closed a loophole in the Economic Espionage Act that had allowed the theft of valuable trade secret source code.10 This legislation was introduced by Senate Judiciary Chairman Senator Patrick Leahy in response to the Second Circuit decision in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012), which overturned a verdict that found that the defendant violated 18 U.S.C. §1832(a) by stealing proprietary computer code, a trade secret, from his employer. This legislation was in line with the overall IPEC objective of protecting trade secrets from misappropriation.

Public Law 112-269The Foreign and Economic Espionage Penalty Enhancement Act of 2012 (H.R. 6029/S. 678), bolstered criminal penalties for economic espionage and directed the Sentencing commission to consider increasing offense levels for trade secret crimes.11 Its passage is an important step in ensuring that penalties are commensurate with the economic harm inflicted on trade secret owners. The passage of this legislation could not have been achieved without the efforts of former House of Representatives Judiciary Chairman Representative Lamar Smith and retired Senator Herb Kohl.

The Administration will continue to ensure that U.S. laws are as effective as possible and that they reflect the seriousness of these crimes and the economic harm inflicted on victims. To supplement the proposals contained in the 2011 White Paper, the IPEC will initiate and coordinate a process, working with appropriate Executive Branch agencies, to review existing Federal laws to determine if legislative changes are needed to enhance enforcement against trade secret theft. The initial review process will conclude within 120 days from the date of the release of this Strategy. The Administration, coordinated through the IPEC, will recommend to Congress any proposed legislative changes resulting from this review process.

 

Theft of Goldman Sachs Trade Secret

Goldman Sachs spent $500 million dollars developing computer source code to support its high frequency trading program. Sergey Aleynikov, a Goldman Sachs computer programmer, resigned from his job to work for a competitor, and on his final day of employment transferred this extremely valuable proprietary computer code to an external computer server. Mr. Aleynikov had also transferred thousands of proprietary computer code files to his home computers. Mr. Aleynikov was investigated by the FBI and prosecuted by the U.S. Attorneys Office of the Southern District of New York. He was sentenced to 97 months in Federal prison. In February 2012, his conviction was overturned by the Second Circuit based on the courts interpretation of the Economic Espionage Act. This loophole was fixed when President Obama signed Public Law 112-236 The Theft of Trade Secrets Clarification Act of 2012 (S. 3642) on December 28, 2012

 

5. Public Awareness and Stakeholder Outreach

What we can dowhat America does better than anyone

is spark the creativity and imagination of our people.

President Barack Obama

Highlighting can help mitigate the theft of trade secrets by encouraging all stakeholders, including the general public, to be aware of the detrimental effects of misappropriation on trade secret owners and the U.S. economy in general. The Administration will continue to conduct education and outreach efforts through the following actions:

The Department of Commerce will leverage existing resources like www.stopfakes.gov to provide useful information for the private sector such as general information on the threat of trade secret theft, expanded country specific toolkits with information on how to protect trade secrets in priority markets, developments in the laws and enforcement practices of significant trading partners and webinars on trade secret theft awareness.

U.S. Patent and Trademark Office and International Trade Administration will utilize current road show trainings to provide forums to educate the private sector, particularly small and medium sized businesses, regarding the economic implications of corporate and state sponsored trade secret theft.

The FBI will continue its current public awareness campaign on bringing public attention to the threat posed to the U.S. from trade secret theft.12

 

Appendix

For more information trade secret theft please visit these websites:

Department of Commerce STOPfakes.gov IPR training module includes an introduction to trade secrets (available at http://www.stopfakes.gov/business-tools/sme-module).

Special 301 Report released by the U.S. Trade Representative summarizes troubling trends involving trade secrets and forced technology transfer. Pages 17-19 (available at http://www.ustr.gov).

The Department of State (available at http://www.state.gov/e/eb/tpp/ipe/).

DOJ National Security Division (available at http://www.justice.gov/nsd/).

DOJ Criminal DivisionComputer Crimes and Intellectual Property Section (available at http://www.justice.gov/criminal/cybercrime/).

FBI Counterintelligence Division (available at http://www.fbi.gov/about-us/investigate/counterintelligence/economic-espionage).

National Intellectual Property Rights Coordination Center (available at http://www.iprcenter.gov/).

The Office of the National Counterintelligence Executive (available at http://www.ncix.gov/issues/economic/index.php).

The Department of Defense Defense Security Service (available at http://www.dss.mil/documents/ci/Insider-Threats.pdf).

Create.org study that includes recommendations for companies operating in foreign countries to mitigate the risk of trade secret theft (available at http://www.create.org/views-blog/trade-secret-theft-managing-growing-threat-supply-chains).

The World Intellectual Property Organization (WIPO) has more trade secret information specifically designed for small and medium-sized enterprises (available at http://www.wipo.int/sme/en/ip_business/trade_secrets/trade_secrets.htm).

 

Annex

ANNEX A: U.S. Patent and Trademark Office Overview of U.S. Trade Secret Laws and Changed Landscape

ANNEX B: Summary of Department of Justice Trade Secret Theft Cases

ANNEX C: 2011 Office of the National Counterintelligence Executive Report

ANNEX D: 2012 Department of Defense Defense Security Service Report

 

 

 

 

Administration Strategy on

Mitigating the Theft of U.S. Trade Secrets

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