Guides · Trade Secret Litigation
Defenses and Early Dismissal
Most trade secret defenses attack the owner's proof: the information was not secret, was not protected, or was not taken or used.
· Law checked through October 20, 2026
In Short
Most trade secret defenses attack the owner's proof: the information was not secret, was not protected, or was not taken or used. Others rely on lawful sources such as independent development or reverse engineering, or on timing. Texas and federal procedure offer several ways to test weak claims early, and a defendant that defeats a claim brought in bad faith may recover its attorney's fees.
Common situations.
- A former employer sues over information its own sales staff posted online.
- A competitor can show it developed its product before the employee arrived.
- An owner waited four years after learning of the departure to sue.
- A complaint lists "confidential information" without saying what it is.
Defenses on the merits.
| Defense | What it means |
|---|---|
| Not a trade secret | The information is generally known or readily ascertainable, or the owner did not take reasonable measures to protect it (Tex. Civ. Prac. & Rem. Code § 134A.002(6); 18 U.S.C. § 1839(3)). See What Counts as a Trade Secret in Court |
| No misappropriation | The defendant did not acquire the information by improper means, and did not use or disclose it in breach of a duty |
| Independent development | The defendant created the information itself, without using the owner's secret. Contemporaneous development records are the best evidence |
| Reverse engineering | The defendant derived the information from a lawfully obtained product. Reverse engineering is a proper means, unless a contract prohibited it (§ 134A.002; 18 U.S.C. § 1839(6)(B)) |
| General skill and knowledge | What the former employee used was general knowledge, skill, and experience, which a court may not enjoin (§ 134A.003(a)) |
| Consent or license | The owner authorized the use, expressly or by its conduct |
| No damages or causation | The owner cannot connect any loss or unjust enrichment to the specific secrets found misappropriated (Trinseo Eur. GmbH v. Kellogg Brown & Root, L.L.C., No. 24-20460 (5th Cir. Jan. 21, 2026)) |
| Limitations | A claim must be filed within three years after the misappropriation was discovered or, by reasonable diligence, should have been discovered (Tex. Civ. Prac. & Rem. Code § 16.010(a); 18 U.S.C. § 1836(d)). A misappropriation that continues over time is a single claim, so continuing use does not restart the period (§ 16.010(b); 18 U.S.C. § 1836(d)). |
| Displacement | In Texas courts, a defendant can move to dismiss tort claims that duplicate the misappropriation claim, because TUTSA displaces them (§ 134A.007). Claims for misuse of confidential information that is not a trade secret, and claims based on independent misconduct, survive (Coe v. DNOW LP, 718 S.W.3d 338 (Tex. App.–Houston [14th Dist.] 2025, pet. denied); Unimacts Global, LLC v. Ayr Energy Inc., 2026 Tex. Bus. 31). See Misappropriation and Related Claims |
Early motions.
In Texas state courts and the Business Court
- Rule 91a motion to dismiss. A motion to dismiss a claim that has no basis in law or fact, decided on the pleadings. It must be filed within 60 days after the first pleading containing the challenged claim is served, and the court must rule within 45 days after filing. The court may award costs and fees to the prevailing party (Tex. R. Civ. P. 91a).
- Special exceptions. A request that the owner replead with more specific allegations, such as an identification of the secrets claimed.
- Texas Citizens Participation Act motion. The TCPA allows early dismissal of claims based on protected speech or association, but it does not apply to an action arising from an employment or independent-contractor relationship that seeks recovery for misappropriation of trade secrets or enforces a noncompete (Tex. Civ. Prac. & Rem. Code § 27.010(a)(5)). It may still apply to some claims between competitors, and to counterclaims.
In federal court
- Rule 12(b)(6) motion. The complaint must plausibly allege the existence of trade secrets, described with enough specificity to give notice, and facts supporting misappropriation. Conclusory references to "confidential information" are vulnerable.
- No TCPA. The Texas statute does not apply in federal court (Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019)).
- Arbitration. A motion to compel arbitration under an employment or commercial agreement (9 U.S.C. §§ 3, 4).
Fee shifting against bad-faith claims.
Under both statutes, a court may award reasonable attorney's fees to the prevailing party if a claim of misappropriation is made in bad faith (Tex. Civ. Prac. & Rem. Code § 134A.005(1); 18 U.S.C. § 1836(b)(3)(D)). Where an owner also pleads a Texas Theft Liability Act claim, that statute awards fees to the prevailing party, which can include a defendant (Tex. Civ. Prac. & Rem. Code § 134.005(b)).
Sources.
- Tex. Civ. Prac. & Rem. Code §§ 16.010, 27.010(a)(5), 134.005(b), 134A.002, 134A.003(a), 134A.005, 134A.007.
- 18 U.S.C. §§ 1836(b)(3)(D), 1836(d), 1839(3), 1839(6).
- 9 U.S.C. §§ 3, 4.
- Tex. R. Civ. P. 91a; Fed. R. Civ. P. 12(b)(6).
- Trinseo Eur. GmbH v. Kellogg Brown & Root, L.L.C., No. 24-20460 (5th Cir. Jan. 21, 2026).
- Coe v. DNOW LP, 718 S.W.3d 338 (Tex. App.–Houston [14th Dist.] 2025, pet. denied).
- Unimacts Global, LLC v. Ayr Energy Inc., No. 25-BC11A-0083, 2026 Tex. Bus. 31 (Tex. Bus. Ct., 11th Div., May 20, 2026).
- Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019).
This guide is general information, not legal advice. Law checked through October 20, 2026. See the Disclaimer.