PJC Business 2024

M ISAPPROPRIATION OF T RADE S ECRETS

PJC 111.2

use of the secret.” Southwestern Energy Production Co. v. Berry-Helfand , 491 S.W.3d 699, 722 (Tex. 2016) (defined in pre-Act case for misappropriation claim accrual anal ysis); Bihner v. Bihner Chen Engineering, Ltd. , No. 01-21-00086-CV, 2021 WL 4155798, at *7 (Tex. App.—Houston [1st Dist.] Sept. 14, 2021, no pet.); see also Malone v. PLH Group, Inc. , No. 01-19-00016-CV, 2020 WL 1680058, at *5 (Tex. App.—Houston [1st Dist.] Apr. 7, 2020, pet. denied). If there is a factual dispute con cerning the nature of the use, the court may include the following instruction derived from Malone : Use of the trade secret means commercial use for the purpose of profit, and includes use likely to injure the secret’s owner, enrich the defendant, or aid the defendant in its own research and development. Limitations. The statute of limitations for trade secret claims is three years and is subject to the discovery rule. Tex. Civ. Prac. & Rem. Code § 16.010. If limitations is at issue, the Committee recommends that the following question, which is adapted from PJC 102.23, be included: By what date should Paul Payne , in the exercise of reasonable dil igence, have discovered the [ acquisition ] [ use ] [ disclosure ] by Don Davis of Paul Payne ’s [ identify trade secret(s) submitted in PJC 111.1 ]? Former employees. The Act does not expressly address use of trade secret infor mation by former employees. In cases in which a former employee’s use of informa tion may be at issue, the court may provide an instruction as follows: An employee may use general knowledge, skills, and experience obtained through previous employment to compete with the former employer. A former employee, however, may not use confidential or proprietary information acquired during the employment relationship in a manner adverse to his former employer. This instruction is derived from pre-Act cases Sharma v. Vinmar International, Ltd. , 231 S.W.3d 405, 424 (Tex. App.—Houston [14th Dist.] 2007, no pet.), and T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc. , 965 S.W.2d 18, 22 (Tex. App.— Houston [1st Dist.] 1998, pet. dism’d).

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