Yar Chaikovsky

Yar Chaikovsky serves as the global chair of the intellectual property practice at White & Case LLP.

His career is distinguished by his successful appearances before various legal forums, including the U.S. District Courts, the Court of Appeals for the Federal Circuit, international agencies such as the International Trade Commission and the Patent Trial and Appeal Board, as well as foreign tribunals.

One of Chaikovsky's most notable cases is the defense of TikTok and ByteDance against Beijing Meishe Network Technology in a global dispute involving source code. This dispute encompasses copyright infringement, trade secret misappropriation, unfair competition-based torts and Lanham Act violations filed in the U.S., as well as similar Chinese copyright and trade secret-based claims in Beijing. The unique aspect of this case lies in Meishe's attempt to enforce U.S. trade secret laws against a domestic entity for actions in China, as well as the assertion of unregistered Chinese copyrights under U.S. copyright law through the Berne Convention. Chaikovsky's involvement in this case demonstrates the breadth of his IP practice in complex international trade secrets disputes.

The case also raises two significant issues within the field of trade secrets. Firstly, it involves the protection of source code registered as Chinese copyrights, which presents a novel challenge for the protectability of source code as a trade secret, especially when parts of the code have been submitted to a foreign administrative body. Secondly, it highlights the scope and extraterritorial reach of claims under the Federal Defend Trade Secrets Act, as the alleged actions all occurred in China.

"One significant challenge is due to the plaintiff's assertion of Chinese copyrighted source code and obtaining basic discovery on the asserted intellectual property in the U.S. due to potential conflicts with data privacy laws and national security review requirements in China," Chaikovsky said.

Additionally, obtaining discovery on key elements of the plaintiff's trade secret claim from related entities has been complicated by the use of the Hague Convention Treaty rather than the Federal Rules of Civil Procedure.

In terms of trends in the trade secrets field, Chaikovsky said, "The past several years have seen a notable increase in trade secrets litigation due in part to U.S. Supreme Court rulings that have made it easier to invalidate patents with the highest number of those trade secret cases filed in the Central District of California, followed by the Southern District of New York and District of Illinois. As a result, companies are utilizing trade secrets in tandem with patents to enforce and protect their valuable IP assets."

Chaikovsky is also active in professional associations, including the American Bar Association, American Intellectual Property Law Association, Federal Circuit Bar Association, International Trade Commission Trial Lawyer Association and American Electronics Association. Additionally, he serves as an adjunct lecturer of intellectual property at Stanford Law School and is a frequent speaker at conferences across the nation, sharing his insights on various aspects of IP law.