WVC 47 -
CHAPTER 47. REGULATION OF TRADE.
WVC 47 - 22 -
ARTICLE 22. UNIFORM TRADE SECRETS ACT.
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As used in this article, unless the context requires
(a) "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.
(b) "Misappropriation" means:
(1) 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
(2) Disclosure or use of another person's trade secret
without the other's express or implied consent by a person who:
(A) Used improper means to acquire knowledge of the trade
(B) At the time of disclosure or use, knew or had reason to
know that his knowledge of the trade secret was:
(i) Derived from or through a person who had utilized
improper means to acquire it; or
(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
(C) Before a material change of his position, knew or had
reason to know that the information was a trade secret and that
knowledge of it had been acquired by accident or mistake.
(c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision or agency or any other legal
or commercial entity.
(d) "Trade secret" means information, including, but not
limited to, a formula, pattern, compilation, program, device,
method, technique or process, that:
(1) 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
(2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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§47-22-2. Injunctive relief.
(a) Actual or threatened misappropriation may be enjoined.
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 the use could have been
prohibited. Exceptional circumstances include, but are not
limited to, a material and prejudicial change of position prior
to acquiring knowledge or reason to know of a misappropriation
that renders a prohibitive injunction inequitable.
(c) In appropriate circumstances, affirmative acts to
protect a trade secret may be compelled by court order.
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(a) 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.
Damages may include both the actual loss caused by the
misappropriation and the unjust enrichment caused by the
misappropriation. 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
(b) If willful and malicious misappropriation occurs, the
court may award exemplary damages in an amount not exceeding
twice any award made under subsection (a).
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§47-22-4. Attorney's fees.
If (a) a claim of misappropriation is made in bad faith, or
(b) a motion to terminate an injunction is made or resisted in
bad faith, or (c) willful and malicious misappropriation occurs,
the court may award reasonable attorney's fees to the prevailing
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§47-22-5. Preservation of secrecy.
In an action brought pursuant to this article, 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
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§47-22-6. Statute of limitations.
An action for misappropriation must be brought within three
years after the misappropriation is discovered or, by the
exercise of reasonable diligence, should have been discovered.
For the purposes of this section, a continuing misappropriation
constitutes a single claim.
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§47-22-7. Effect on other law.
(a) Except as provided in subsection (b), of this section,
this article displaces conflicting tort, restitutionary and other
law of this state providing civil remedies for misappropriation
of a trade secret.
(b) This article 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.
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§47-22-8. Uniformity of application and construction.
This article shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this act among states enacting it.
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§47-22-9. Short title.
This article may be cited as the "Uniform Trade Secrets
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§47-22-10. Time of taking effect.
This article takes effect on the first day of July, one
thousand nine hundred eighty-six, and does not apply to
misappropriations occurring prior to the effective date or to
misappropriations which began prior to the effective date and
continue past the effective date.
Note: WV Code updated with legislation passed through the 2012 1st Special Session