Emerging technologies like AI and digital assets are fueling fierce competition for specialized engineers, researchers, and technical leaders.
Meanwhile, trade secret litigation is on the rise.
According to Lex Machina’s 2026 Trade Secret Litigation Report, federal trade secret filings reached their highest level in at least the past decade in 2025, continuing an upward trend from recent years. The report recorded 1,551 trade secret cases filed in federal court in 2025, up from 1,293 in 2024 and 1,202 in 2023, with claims under the Defend Trade Secrets Act (DTSA) continuing to account for the overwhelming majority of federal trade secret litigation. The report also identifies increased employee mobility as a recurring feature of the trade secret litigation landscape, noting that many disputes arise from employee departures and related claims involving confidential information.
While trade secret disputes have long been a feature of the technology industry, the nature of today’s innovation economy may be contributing to the rise in theft of trade secrets matters. Companies are investing enormous resources into developing proprietary algorithms, manufacturing processes, engineering designs, training data, source code, and other confidential information that often cannot be protected through patents alone. Those assets frequently become central to litigation when employees change companies, partnerships dissolve, or competitors introduce similar products.
WHEN EMPLOYEE MOBILITY MEETS EMERGING TECHNOLOGY
Apple’s recently filed lawsuit against OpenAI offers one example.
Apple alleges that former employees improperly retained confidential information related to its hardware development efforts before joining OpenAI as the company expanded into consumer hardware. According to Apple’s complaint, the information includes engineering specifications, technical documentation, manufacturing information, and other proprietary materials. OpenAI has denied the allegations, and the litigation remains pending.
This trend is not new, as trade secret disputes have long followed employee departures. However, what makes this and other recent cases noteworthy is the context: companies developing emerging technologies are both driving rapid innovation and pursuing a small pool of highly specialized technical professionals. Movement between competitors raises disputes over whether individuals bring only their experience or also confidential information from former employers.
WHERE IS THE LINE?
The law recognizes that employees are free to use the general knowledge, skills, and experience they acquire throughout their careers. At the same time, companies have legitimate interests in protecting confidential information developed through significant investments in research, engineering, and product development.
Yet, drawing the line between these two principles is rarely simple.
Unlike many commercial disputes, trade secret cases often involve information the public never sees. Source code, engineering workflows, technical specifications, manufacturing processes, product roadmaps, and other proprietary information may all become central issues in the litigation while remaining confidential throughout the proceedings.
Determining whether that information constitutes a protectable trade secret often requires both technical and factual analysis. And if and when those disputes proceed to trial, how jurors interpret the evidence can be equally important.
THE JURY CHALLENGE
Jurors bring their own assumptions about innovation, employee mobility, and ownership of knowledge into the courtroom.
DOAR’s Study of Jurors’ Attitudes Toward Theft of Trade Secrets Cases found that many jurors approach these cases with preconceived views about employees moving between companies, corporate competition, and the rights of work-related know-how. Some instinctively believe employees should be generally free to take the skills they have developed throughout their careers. Others are more inclined to believe companies have legitimate claims to protect proprietary information developed through significant investment.
These differing assumptions can shape how jurors evaluate evidence even before deliberations begin. As a result, the central question in many trade secret cases is not simply whether confidential information existed, but whether the evidence clearly distinguishes protected intellectual assets from an employee’s general knowledge and experience.
EXPLAINING HIGHLY TECHNICAL EVIDENCE
That distinction becomes even more difficult when the underlying technology is highly sophisticated.
The technologies at the center of these disputes increasingly reflect the areas experiencing the fastest pace of innovation, including artificial intelligence, semiconductors, digital assets, advanced hardware, autonomous systems, robotics, medical devices, and other technically complex fields. Whether discussing software architecture, machine learning, engineering design, manufacturing processes, or other specialized subjects, expert testimony from a highly competent testifying expert often provides the technical foundation for judges and juries to evaluate competing claims.
Just as important is presenting those concepts in a way that connects the technical evidence to the legal questions fact finders must ultimately decide.
LOOKING AHEAD
Trade secret litigation is likely to remain an important feature of the high-tech litigation landscape as companies continue to invest in new technologies and to compete for specialized talent.
Whether the answer to the central question ultimately proves to be yes, no, or somewhere in between, recent disputes involving emerging technology companies highlight an issue that litigators are likely to encounter with increasing frequency: explaining the difference between the expertise employees carry with them and the confidential information companies seek to protect.
For litigation teams, successfully navigating that distinction requires more than understanding the technology. It requires presenting complex technical concepts and communicating narratives in a way that judges and juries can clearly understand.
