Pennsylvania Act 1996-128 — CRIMES CODE (18 PA.C.S.) - AMEND THEFT OF TRADE SECRETS

Act text

CRIMES CODE (18 PA.C.S.) - AMEND THEFT OF TRADE SECRETS
                 Act of Oct. 16, 1996, P.L. 715, No. 128              Cl. 18
                             Session of 1996
                               No. 1996-128

     SB 1466

                                  AN ACT

     Amending Title 18 (Crimes and Offenses) of the Pennsylvania
        Consolidated Statutes, further providing for the theft of
        trade secrets; defining the offense of trademark
        counterfeiting; further providing for expungement of certain
        criminal records; and providing penalties.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 3930(a), (b) and (e) of Title 18 of the
     Pennsylvania Consolidated Statutes are amended to read:
      § 3930.  Theft of trade secrets.
        (a)  Felony of the [third] second degree.--A person is guilty
     of a felony of the [third] second degree if he:
            (1)  by force or violence or by putting him in fear takes
        from the person of another any article representing a trade
        secret; or
            (2)  willfully and maliciously enters any building or
        other structure with intent to obtain unlawful possession of,
        or access to, an article representing a trade secret.
        (b)  [Misdemeanor of the first degree] Felony of the third
     degree.-- A person is guilty of a [misdemeanor of the first
     degree] felony of the third degree if he, with intent to
     wrongfully deprive of, or withhold from the owner, the control
     of a trade secret, or with intent to wrongfully appropriate a
     trade secret for his use, or for the use of another:
            (1)  unlawfully obtains possession of, or access to, an
        article representing a trade secret; or
            (2)  having lawfully obtained possession of an article
        representing a trade secret, or access thereto, converts such
        article to his own use or that of another person, while
        having possession thereof or access thereto makes, or causes
        to be made, a copy of such article, or exhibits such article
        to another.
        * * *
        (e)  Definitions.--As used in this section the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Article."  Any object, material, device or substance or copy
     thereof, including any writing, record, recording, drawing,
     description, sample, specimen, prototype, model, photograph,
     microorganism, blueprint or map.
        "Copy."  Any facsimile, replica, photograph or reproduction
     of, an article, or any note, drawing, sketch, or description
     made of, or from an article.
        "Representing."  Describing, depicting, containing,
     constituting, reflecting or recording.
        "Trade secret."  The whole or any portion or phase of any
     scientific or technical information, design, process, procedure,
     formula or improvement or customer or sales information or any
     other privileged or confidential information which is of value
     and has been specifically identified by the owner as of a
     confidential character, and which has not been published or
     otherwise become a matter of general public knowledge. There
     shall be a rebuttable presumption that scientific or technical
     information or customer or sales information or any other
     privileged or confidential information has not been published or
     otherwise become a matter of general public knowledge when the
     owner thereof takes measures to prevent it from becoming
     available to persons other than those selected by him to have
     access thereto for limited purposes.
        Section 2.  Title 18 is amended by adding a section to read:
      § 4119.  Trademark counterfeiting.
        (a)  Offense defined.--Any person who knowingly manufactures,
     uses, displays, advertises, distributes, offers for sale, sells
     or possesses with intent to sell or distribute any items or
     services bearing or identified by a counterfeit mark shall be
     guilty of the crime of trademark counterfeiting.
        (b)  Presumption.--A person having possession, custody or
     control of more than 25 items bearing a counterfeit mark may be
     presumed to possess said items with intent to sell or
     distribute.
        (c)  Penalties.--
            (1)  Except as provided in paragraphs (2) and (3), a
        violation of this section constitutes a misdemeanor of the
        first degree.
            (2)  A violation of this section constitutes a felony of
        the third degree if:
                (i)  the defendant has previously been convicted
            under this section; or
                (ii)  the violation involves more than 100 but less
            than 1,000 items bearing a counterfeit mark or the total
            retail value of all items or services bearing or
            identified by a counterfeit mark is more than $2,000, but
            less than $10,000.
            (3)  A violation of this section constitutes a felony of
        the second degree if:
                (i)  the defendant has been previously convicted of
            two or more offenses under this section;
                (ii)  the violation involves the manufacture or
            production of items bearing counterfeit marks; or
                (iii)  the violation involves 1,000 or more items
            bearing a counterfeit mark or the total retail value of
            all items or services bearing or identified by a
            counterfeit mark is more than $10,000.
        (d)  Quantity or retail value.--The quantity or retail value
     of items or services shall include the aggregate quantity or
     retail value of all items or services bearing or identified by
     every counterfeit mark the defendant manufactures, uses,
     displays, advertises, distributes, offers for sale, sells or
     possesses.
        (e)  Fine.--Any person convicted under this section shall be
     fined in accordance with existing law or an amount up to three
     times the retail value of the items or services bearing or
     identified by a counterfeit mark, whichever is greater, unless
     extenuating circumstances are shown by the defendant.
        (f)  Seizure, forfeiture and disposition.--
            (1)  Any items bearing a counterfeit mark and all
        personal property, including, but not limited to, any items,
        objects, tools, machines, equipment, instrumentalities or
        vehicles of any kind, knowingly employed or used in
        connection with a violation of this section may be seized by
        any law enforcement officer.
            (2)  All seized personal property referenced in paragraph
        (1) shall be forfeited in accordance with applicable law
        unless the prosecuting attorney responsible for the charges
        and the intellectual property owner consent in writing to
        another disposition.
        (g)  Evidence.--Any Federal or State certificate of
     registration of any intellectual property shall be prima facie
     evidence of the facts stated therein.
        (h)  Remedies cumulative.--The remedies provided for in this
     section shall be cumulative to the other civil and criminal
     remedies provided by law.
        (i)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Counterfeit mark."  Any of the following:
            (1)  Any unauthorized reproduction or copy of
        intellectual property.
            (2)  Intellectual property affixed to any item knowingly
        sold, offered for sale, manufactured or distributed or
        identifying services offered or rendered, without the
        authority of the owner of the intellectual property.
        "Intellectual property."  Any trademark, service mark, trade
     name, label, term, device, design or word adopted or used by a
     person to identify that person's goods or services.
        "Retail value."  The counterfeiter's regular selling price
     for the item or service bearing or identified by the counterfeit
     mark. In the case of items bearing a counterfeit mark which are
     components of a finished product, the retail value shall be the
     counterfeiter's regular selling price of the finished product on
     or in which the component would be utilized.
        Section 3.  Section 9122(c) of Title 18 is amended to read:
      § 9122.  Expungement.
        * * *
        (c)  Maintenance of certain information required or
     authorized.--Notwithstanding any other provision of this
     chapter, the prosecuting attorney and the central repository
     shall, and the court may, maintain a list of the names and other
     criminal history record information of persons whose records are
     required by law or court rule to be expunged where the
     individual has successfully completed the conditions of any
     pretrial or post-trial diversion or probation program. Such
     information shall be used solely for the purpose of determining
     subsequent eligibility for such programs and for identifying
     persons in criminal investigations. Criminal history record
     information may be expunged as provided in subsection (b)(1) and
     (2). Such information shall be made available to any court or
     law enforcement agency upon request.
        * * *
        Section 4. This act shall take effect in 60 days.

     APPROVED--The 16th day of October, A. D. 1996.

     THOMAS J. RIDGE