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WPI 351.04 Improper Means—Definition

6A WAPRAC WPI 351.04Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 351.04 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVIII. Commercial Litigation
Chapter 351. Trade Secrets
WPI 351.04 Improper Means—Definition
The phrase “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.
[On the other hand, the phrase “improper means” does not include acquiring information through independent development or invention, research of public or industry resources, or reverse engineering.]
Use this instruction, as appropriate, with WPI 351.03 (Misappropriation—Definition). Use bracketed material as applicable. If there is a claim that information was obtained through “reverse engineering,” also use WPI 351.07 (Reverse Engineering—Definition).
The first paragraph of this instruction is taken from RCW 19.108.010(1). The bracketed second paragraph is derived from the American Bar Association's model instruction on “improper means.” Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 8.4.1 (4th ed.).
“Theft” includes acting “[b]y color or aid of deception to obtain control.” See RCW 9A.56.020(1)(b) (definition of criminal theft); RCW 9A.56.010(6) (including unauthorized use or copying of trade secrets within criminal theft).
For a discussion of “proper means”-including discovery by independent invention, by reverse engineering, under license from owner of trade secret, by observation of the item in public use, etc., see Unif. Trade Secrets Act with 1985 Amendments § 1 Comment, 14 U.L.A. (2005).
[Current as of December 2020.]
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