The passage of the Protecting American Intellectual Property Act of 2022, 35 USC § 1709 (PAIPA), earlier this year underscored Congress’s continued aggressive approach to protecting domestic trade secrets from misappropriation by foreign actors. PAIPA mandates the imposition of sanctions from a sanctions menu where the president finds that a “foreign person” has either engaged in or is providing significant support for a “significant theft” of trade secrets of US persons.
The deadlines for action under PAIPA have come and gone, but there has been no reported activity under the statute to date. The president has not executed a delegation of authority under the statute, and the initial mandatory report deadline, July 4, 2023, came and went without action by the president or any agency purporting to act pursuant to PAIPA.
While there has been no imposition of sanctions pursuant to its authorities to date, the clock continues to run, and it is only a matter of time before the administration is called to task and action is demanded, or taken, by Congress.
In our prior publication at the time of passage, we described PAIPA’s requirements, including a number of unresolved questions. Until both the required delegations of authority occur, and the initial report is issued, the exact manner in which these expansive authorities will be used remains uncertain.
Signed into law by US President Joseph Biden on January 5, 2023, PAIPA mandates sanctions on entities and individuals identified as having committed “significant thefts of trade secrets” belonging to US persons where the trade secret theft is “reasonably likely to result in, or has materially contributed to, a significant threat to the national security, foreign policy, or economic stability of the United States.”
While co-sponsors of PAIPA—which, by designating only trade secrets, does not cover patent, trademark, or copyright infringement—pointed to the People’s Republic of China as one of the legislation’s targets, the text of the statute is not limited to a single country.
A number of factors differentiate PAIPA from its sanctions predecessors, including the following:
Without a delegation of authority, implementing regulations, or an initial report, numerous questions remain. PAIPA has the potential to be not only a significant governmental tool to address IP losses and their impact on national security, but also to allow private parties to weaponize sanctions in trade secret litigation (or threats of litigation).
Until the administration or Congress acts, however, the breadth of that impact remains uncertain, not least because the statute leaves so many things unanswered. Among the unaddressed questions are the following:
While the full scope of risk remains to be seen, a key means of avoiding these sanctions will be through measures that ensure respect for IP rights. Trade secret theft arises most frequently through either the misuse of information obtained via cooperative agreements or through the hiring of competitor personnel. Because PAIPA applies only where a party has “knowingly engaged in, or benefitted from, significant theft of trade secrets of United States persons,” compliance measures should go a long way toward avoiding becoming a target of these new sanctions. These may include
Our Continuing Evolution of US-China Relations: 2023 and Beyond webinar series, examined the US Congress’s anticipated policy and legislative impacts. The series addressed interrelated issues affecting global business and focus on intellectual property, sanctions, export controls, risk factors, and the potential for an outbound investment regime.