he Defend Trade Secrets Act launched trade secret law, which formerly only reached federal courts in diversity cases or cases involving espionage, into the national spotlight. As these cases begin to progress to trial, courts face new questions about how to appropriately measure monetary damages for trade secret claims. Because many courts take a “flexible and imaginative” approach to trade secret damages generally and most state trade secret statutes do not require damages as a part of a successful trade secret liability case, most courts that have considered damages methodology challenges to DTSA claims have failed to employ gatekeeping to ensure that a proposed methodology is appropriately tied to the specific injury alleged by the trade secret owner—a requirement for just about any form of monetary relief under federal law. And sound damages principles are necessary given the inherent proof problems in trade secret law, as unlike other forms of intellectual property, there is no formal declaration of what the “metes and bounds” of the proprietary information is.

This Article offers a novel framework to guide trade secret damages in the absence of a cohesive framework that takes the trade secret owner’s actual injury into account. After surveying the current damages landscape, I turn to both patent law and state doctrinal developments to justify a few methodological requirements to guide trade secret damages inquiries. First, a trade secret owner must determine the type of injury alleged under the DTSA—acquisition, disclosure, or use. In cases where a trade secret was merely acquired or internally disclosed without reaching the public, a trade secret owner may not receive monetary relief. When a misappropriator uses the trade secret internally, such as to aid in research and development of a product, a trade secret owner may recover the misappropriator’s avoided costs under an unjust enrichment theory. Finally, a trade secret owner may pursue any damages theory if the misappropriator has publicly disclosed or used the alleged trade secret. In addition to these requirements, I also suggest that trade secret owners must take care to apportion the alleged damages to the trade secret information itself and that the hypothetical negotiation framework used to determine an appropriate damages figure be adjusted to account for the realities of a trade secret injury.