PJC Business

M ISAPPROPRIATION OF T RADE S ECRETS

PJC 111.2

820 S.W.2d 414, 422 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (citing Met allurgical Industries Inc. v. Fourtek, Inc. , 790 F.2d 1195, 1205 (5th Cir. 1986)); see also Southwestern Energy Production Co. v. Berry-Helfand , 491 S.W.3d 699, 722 (Tex. 2016) (pre-Act case holding “[u]se of the trade secret means commercial use by which the offending party seeks to profit from the use of the secret”) (quoting Global Water Group, Inc. v. Atchley , 244 S.W.3d 924, 930 (Tex. App.—Dallas 2008, pet. denied)). If there is a factual dispute concerning the nature of the use, the court may include the following instruction derived from Atlantic Richfield Co. : Use of the trade secret means commercial use by which the offending party seeks to profit from the use of the secret. 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 Sharma v. Vinmar International, Ltd. , 231 S.W.3d 405, 424 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d), and T-N-T Motor sports, Inc. v. Hennessey Motorsports, Inc. , 965 S.W.2d 18, 22 (Tex. App.—Houston [1st Dist.] 1998, no pet.).

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