Attributing Illicit Gains in Trade Secret Misappropriation: A Typological and Economic Framework for Criminal Quantification
DOI:
https://doi.org/10.63808/ftd.v2i3.464Keywords:
Trade Secret Misappropriation, Illicit Gains, Criminal Attribution, Law and Economics, Economic Crime, Profit Quantification, Causation Theory.Abstract
Trade secret protection in criminal law is increasingly oriented toward the quantification of illicit economic advantages rather than mere identification of informational misappropriation. The central challenge lies in attributing profits generated under multi-factor conditions, where gains result not only from unlawful use of trade secrets but also from capital input, managerial capability, brand effects, timing, and market demand. Illicit gains cannot be equated with accounting profits. Only the portion causally attributable to the unlawful acquisition, disclosure, or use of protected information constitutes relevant criminal gain. This requires a structured separation between lawful competitive returns and informational advantages. Trade secret misappropriation may be classified into disclosure-based, use-based, and hybrid forms involving overlapping causal pathways. Each category reflects distinct mechanisms of value realization and different levels of attribution complexity. A three-layer framework consisting of causal attribution, market benchmarking, and equitable adjustment enables the isolation of informational contributions within composite profits. Based on this structure, incremental profit analysis, counterfactual reconstruction, and contribution apportionment models function as complementary tools for quantification under different factual scenarios. This framework addresses the attribution problem in trade secret related criminal liability by distinguishing economic causation from accounting outcomes and clarifying the boundary between lawful competitive success and unlawfully acquired informational rents.
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