Throughout time industries have ­developed techniques and processes that are believed to be essential elements that contributed to the company's success. For almost as long, companies have sought and devised ways to protect those techniques and processes that constituted the company's intellectual property. Many companies turned to federal patent protection, others chose to treat the information as trade secrets and others chose to use contractual obligations to protect their intellectual property. These various forms of protection were especially meaningful in what might be termed soft industries like banking, financial advice, sales transactions, supply chain management and the like. This information was not specifically directed at a product, but was directed at the things that made it possible to produce and sell a product. In many ways this intellectual property may be called business intelligence. The U.S. Supreme Court decision in Alice v. CLS Bank International, 134 S. Ct. 2347 (2014), has made it more difficult to use patents to protect business intelligence.

In Alice, the Supreme Court found a software patent to be invalid on the basis that the patent embodied an abstract idea and the patent claims did nothing more than take that abstract idea and place it in a ­computer environment. The court stated, “We ­conclude that the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention.” To be patentable, a claim must do significantly more than embody an abstract idea. In other words, the claim must go beyond that which a human could theoretically do through normal human activities. As an example, the logistics of a distribution system could be set out on paper, so using a computer to do the same operation faster on a spreadsheet does not result in patentable subject matter.

After Alice, many companies reverted to the earlier practices of using trade secret and contractual ­obligations to protect business intelligence. Traditionally, trade secret protection was determined state by state and the individual states were free to codify trade secrets or rely on common law. In 1996, limited federal protection became available when Congress enacted the Economic Espionage Act that covered ­certain foreign activities. However, that was not the answer to a domestically applicable trade secret protection. Congress remedied this gap in 2016 when it enacted the Defend Trade Secrets Act (DTSA), which is ­effective only for causes of action that occurred in some part after May 11, 2016. While the ultimate effectiveness of the DTSA is undecided, it includes a provision that addressed the granting of injunctions when employees move between companies that are, or are deemed to be, marketplace rivals which may limit its effectiveness in limited what is disclosed. The DTSA states that an injunction cannot “prevent a person from entering into an employment relationship,” 18 U.S.C. Section 1836(3)(A)(i)(I). Thus, employee mobility between employers was to be protected by crafting an injunction that was finely tailored.