WPI 351.03 Misappropriation—Definition
6A WAPRAC WPI 351.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 351.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVIII. Commercial Litigation
Chapter 351. Trade Secrets
WPI 351.03 Misappropriation—Definition
“Misappropriation” of a trade secret means [acquisition] [disclosure] [or] [use] of a trade secret, without the express or implied consent of the owner of the trade secret, by a person who:
[(1)] [Used improper means to acquire the trade secret;] [or]
[(2)] [At the time of acquisition, disclosure, or use, knew or had reason to know that his or her knowledge of the trade secret was:
[(a)] [derived from or through a person who had utilized improper means to acquire it;] [or]
[(b)] [acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use;] [or]
[(c)] [derived from or through a person who owed a duty to the plaintiff to maintain its secrecy or limit its use;]] [or]
[(3)] [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.]
NOTE ON USE
This instruction defines a term used in the burden of proof instruction, WPI 351.01, which should accompany this instruction. When appropriate, use WPI 351.04 (Improper Means—Definition) with this instruction.
Use the bracketed material as applicable to the particular case and renumber accordingly.
COMMENT
This instruction is based on the language of RCW 19.108.010(2). The wording has in some places been simplified to increase juror understanding. No substantive departure from the statute is intended
Misappropriations are not limited to the physical or electronic taking of protected information. A misappropriation may also occur when a person memorizes trade secrets and later reveals them to others. Ed Nowogroski Ins., Inc. v. Rucker, 137 Wn.2d 427, 971 P.2d 936 (1999) (customer list). The act of filing patent applications that include trade secrets is sufficient to constitute misappropriation. Modumetal, Inc. v. Xtalic Corp., 4 Wn.App.2d 810, 824–25, 425 P.3d 871 (2018).
A misappropriation may sometimes be based on a duty to maintain secrecy. RCW 19.108.010(2)(b). A confidential relationship imposes an obligation not to disclose a trade secret or use it for other purposes. Pacific Aerospace & Elecs., Inc. v. Taylor, 295 F.Supp.2d 1205, 1212 (E.D. Wash. 2003) (applying Washington law).
[Current as of December 2020.]
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