## Facts

- DuPont developed a valuable, secret, unpatented process for producing methanol and began constructing a plant in Beaumont, Texas, to use that process.
- DuPont alleged it took precautions to protect secrecy, including fencing and ground-level security, but portions of the process were visible from directly above the construction area during construction.
- Two photographers, Rolfe and Gary Christopher, were hired by an undisclosed client to take aerial photographs of the plant.
- The Christophers flew over the site and took sixteen aerial photographs, which they developed and delivered to the client.
- DuPont learned the aircraft’s identity and demanded disclosure of the client; the Christophers refused.
- DuPont alleged the photographs would allow a skilled person to deduce the secret process and thus constituted misappropriation of trade secrets.

## Issues

1. Whether a trade secret misappropriation claim is stated when the alleged acquisition occurs through aerial photography from public airspace without trespass, breach of confidence, or violation of aviation rules.
2. Whether such aerial surveillance can constitute “improper means” under Texas trade secret law when the trade secret owner took reasonable, though not perfect, measures to maintain secrecy.

## Decision

- The Fifth Circuit affirmed the district court’s denial of the Christophers’ Rule 12(b)(6) motion to dismiss and remanded for further proceedings.
- The court held the complaint plausibly alleged misappropriation because aerial photography undertaken to obtain secret process information could qualify as “improper means.”
- The court rejected the view that liability requires an independent tort or crime (such as trespass) or a breached confidential relationship.
- The court concluded DuPont was not required to construct extraordinary protections (such as roofing an unfinished plant) to preserve trade secret status.

## Legal Principles

- Under Texas trade secret law, liability may arise when a party discovers another’s trade secret by “improper means,” even absent trespass, illegality, or a breach of confidence.
- “Improper means” is not limited to conduct independently unlawful; it includes espionage-type acquisition methods that fall below generally accepted standards of commercial morality and reasonable conduct.
- A trade secret owner must take reasonable precautions to maintain secrecy, but is not required to achieve perfect security against every conceivable method of observation.
- Whether a particular method of surveillance constitutes “improper means” depends on context, including the owner’s secrecy measures and the purpose and character of the defendant’s conduct.

## Conclusion

The court allowed DuPont’s trade secret claim to proceed, holding that deliberate aerial surveillance aimed at extracting protected process information from a guarded construction site can be an improper method of acquisition under Texas law even without trespass or other independent illegality, so long as the owner employed reasonable secrecy measures.


E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970)