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1135. 18 U.S.C. § 1832 Element Six—Interstate or Foreign Commerce

This element requires the government to prove that the trade secret was "related to or included in a product that is produced for or placed in interstate or foreign commerce." 18 U.S.C. § 1832. In cases where the trade secret is related to a product actually being manufactured and sold, this element is easily established by evidence of interstate sales. Where the trade secret relates to a product in research and development, proof might be more difficult. However, there is no evidence that Congress intended to create such a large exception to the trade secrets accorded protection under the EEA. Therefore, in cases in which the trade secret is related to a product still being developed but that product will ultimately be sold in interstate commerce, prosecutors should establish this fact, and argue that it sufficiently meets this element.

[cited in JM 9-59.100]

Updated September 19, 2018