The Vermont Statutes Online

Title 9: Commerce and Trade

Chapter 143: Trade Secrets

• § 4601. Definitions

  As used in this chapter:

  (1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

  (2) “Misappropriation” means:

  (A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

  (B) disclosure or use of a trade secret of another without express or implied consent by a person who:

  (i) used improper means to acquire knowledge of the trade secret; or

  (ii) at the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:

  (I) derived from or through a person who had utilized improper means to acquire it;

  (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

  (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

  (iii) before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

  (3) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

  (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

  (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Added 1995, No. 90 (Adj. Sess.), § 1.)

• § 4602. Injunctive relief

  (a) A court may enjoin actual or threatened misappropriation of a trade secret. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.

  (b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.

  (c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. (Added 1995, No. 90 (Adj. Sess.), § 1; amended 2013, No. 199 (Adj. Sess.), § 17.)

• § 4603. Damages

  (a)(1) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant is entitled to recover damages for misappropriation.

  (2) Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.

  (3) In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.

  (4) A court shall award a substantially prevailing party his or her costs and fees, including reasonable attorney’s fees, in an action brought pursuant to this chapter.

  (b) If malicious misappropriation exists, the court may award punitive damages. (Added 1995, No. 90 (Adj. Sess.), § 1; amended 2013, No. 199 (Adj. Sess.), § 17.)

• § 4604. [Reserved.]

• § 4605. Preservation of secrecy

  In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval. (Added 1995, No. 90 (Adj. Sess.), § 1.)

• § 4606. [Reserved.]

• § 4607. Effect on other law

  (a) Except as provided in subsection (b) of this section, this chapter displaces conflicting tort, restitutionary, and any other law of this State providing civil remedies for misappropriation of a trade secret.

  (b) This chapter does not affect:

  (1) contractual remedies, whether or not based upon misappropriation of a trade secret;

  (2) other civil remedies that are not based upon misappropriation of a trade secret; or

  (3) criminal remedies, whether or not based upon misappropriation of a trade secret. (Added 1995, No. 90 (Adj. Sess.), § 1; amended 2013, No. 199 (Adj. Sess.), § 17.)

• § 4608. Uniformity of application and construction

  This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it. (Added 1995, No. 90 (Adj. Sess.), § 1.)

• § 4609. Time of taking effect

  This chapter shall take effect on July 1, 1996 and does not apply to misappropriation occurring prior to the effective date. With respect to a continuing misappropriation that began prior to the effective date, the chapter also does not apply to the continuing misappropriation that occurs after the effective date. (Added 1995, No. 90 (Adj. Sess.), § 1.)