Crowell & Moring invites you to attend the webinar, 2020 Trade Secrets Year in Review, taking place on Thursday, January 28 at 12:00 pm ET. We will cover what you need to know about the big cases, changes, and developments relating to trade secrets from the past year.

Join Raija Horstman, Molly Jones and Julia Milewski for a discussion focusing on three key areas:

  1. China: Focusing on the international impact of China and trade secret issues in litigation and ITC actions
  2. Big Cases, Big Consequences: Highlighting the biggest damages awards, defense verdicts, and key changes in law
  3. COVID-19: Exploring how the growth of remote work and increased employee mobility in the midst of the COVID-19 pandemic has impacted trade secret litigation

To register, please click here.

On January 13, the U.S. International Trade Commission (“ITC”) issued the long-awaited public version of its final opinion in the Matter of Botulinum Products (Inv. No. 337-TA-1145), otherwise known as the “Botox case.” As previewed in the ITC’s earlier notice of decision, the ITC’s final opinion affirmed the Administrative Law Judge’s issuance of a 21-month ban on imports and sale of Respondents’ lower-cost alternative to Botox for misappropriation of trade secret manufacturing processes and reversed the finding that Complainant Medytox’s specific strain of botulinum toxin bacteria is a protectable trade secret.

As we previously reported, South Korean company Daewoong Pharmaceutical and its U.S.-based licensee Evolus had been facing a potential 10-year ban of the import and sale of its product, Juveau; however, because the ITC reversed the ALJ’s finding and instead held that the bacterial strain at issue was not a protectable trade secret, the Respondents could not be liable for trade secret misappropriation of the bacterial strain itself. The ITC thus reduced the length of the ban from 10 years to 21 months, accounting for the ITC’s finding that Respondents were liable for theft of trade secrets related to Medytox’s manufacturing process.

Continue Reading Final ITC Ruling in Botox Rival Case Creates More Head-Lines

The EU Whistleblower Directive: A Burden or an Opportunity?

Tension between the protection of whistleblowers and the protection of trade secrets?        

Companies should see the obligations set out in the EU Whistleblower Directive regarding internal reporting channels as an opportunity rather than a burden. Having an internal tool to facilitate detection of possible misconduct at an early stage and to maintain control over that issue internally is useful and to be welcomed. External reporting and public disclosures, on the other hand, can lead to leaks of sensitive or confidential information, such as trade secrets, and could thus harm the business. It is important, therefore, that companies understand that whistleblowers are – under certain conditions – also protected when publicly disclosing trade secrets. By setting-up internal reporting channels, as well as diligently following up on incoming reports, companies improve their ability to remedy any issues internally before the company’s reputation or interests are damaged.

Join Crowell & Moring attorneys Emmanuel Plasschaert and Stefanie Tack on January 26 for this webinar presentation in cooperation with ACC Europe. To register, please click here. If you have any questions, please contact Danica Schiefer with any questions.

On December 16, 2020, the U.S. Court of Appeals for the Ninth Circuit held for the first time in Attia v. Google LLC that a misappropriation claim under the Defend Trade Secrets Act of 2016 (“DTSA”) may be brought for a misappropriation that started prior to the enactment of the DTSA as long as the claim also arises from post-enactment misappropriation or from the continued use of the same trade secret.  The decision further expands the reach of the DTSA and provides a blueprint for other courts to rule along the same lines.

The case, which was originally filed in the Northern District of California in 2014, was brought by an architect and his firm against Google under the DTSA, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state trade secret and contract laws for alleged misappropriation of the plaintiff’s “Engineered Architecture” technology.[1] Although the Ninth Circuit affirmed the District Court’s dismissal of the DTSA claim on the grounds that  the architect lacked standing under the DTSA because Google’s 2012 patent applications based on the “Engineered Architecture” technology placed the contested information in the public domain, extinguishing any trade secret claims over it,[2] the Ninth Circuit’s ruling was significant for other reasons, namely the expansion of the DTSA’s potential applicability.

Continue Reading Ninth Circuit Allows Defend Trade Secrets Act Claims for Conduct Predating the DTSA

As the year comes to a close, it’s safe to say 2020 was a year unlike any other and full of lessons to be learned from the COVID-19 pandemic to the growing threat to U.S. intellectual property abroad.

A look back on the 10 most read posts from this past year highlights some key developments in trade secret law in 2020:

  1. Non-Compete Agreements and Restrictive Covenants During COVID-19
  2. Is Chinese IP Theft Coming to an End?
  3. ITC Administrative Law Judge Decision Implicates Scope of Trade Secret Protections
  4. Harvard Professor Indicted for Allegedly Lying About Participation in Chinese Talent Recruitment Program
  5. Billion Dollar Trade Secret Misappropriation Lawsuit Against Uber to Move Forward
  6. Faulty Jury Instruction Wipes Out $740 Million Verdict
  7. GEICO Earns Victory at Intersection Between Copyright and Trade Secret Law Covering Source Code
  8. COVID-19 and the Unique Opportunity for Phishing
  9. Prosecutions of Trade Secret Theft by Former Employees in Autonomous Vehicle Development
  10. Taiwanese Semiconductor Pleads Guilty, To Pay $60 Million Fine for Criminal Trade Secret Theft

In an increasingly global economy, trade secrets and confidential information frequently cross borders and so do claims of trade secret theft and misappropriation.  This article provides practical advice for business leaders on how to ensure that trade secret claims against foreign defendants can remain in court.

Last week, a District Court in the Southern District of New York imposed a $40,000 sanction on SIMO Holdings, Inc. (“SIMO”) for violating a pretrial discovery protective order.  SIMO disclosed four documents covered under the protective order to persons not permitted to view those documents, and the Court determined that a $10,000 sanction for each document was warranted.

Continue Reading Plaintiff Sanctioned for Violating Protective Order by Sharing Discovery

On December 16, the U.S. International Trade Commission (“ITC”) affirmed in part and reversed in part Administrative Law Judge David P. Shaw’s final initial determination from July against a South Korean manufacturer of an anti-wrinkle beauty treatment made from the botulinum toxin bacteria called Jeuveau. The ITC affirmed the ALJ’s findings with respect to the manufacturing process trade secrets but overturned the ALJ’s finding that Complainants Medytox and Allergan had any protectable interest in the bacterial strain itself. As a result, the ITC rejected the ALJ’s recommendation that a 10-year ban be imposed and concluded that Respondents Daewoong and Evolus should be barred from importing Jeuveau for 21 months instead. The ITC’s decision also issued a cease and desist order to prevent Evolus from selling any products previously imported unless it posts a bond equal to $441 for each 100-unit vial of Jeuveau. A full opinion on the ITC’s decision will be available roughly two weeks from now.

Continue Reading ITC Decision Adds New Wrinkle to Ban of Botox Competitor in Trade Secret Misappropriation Case

Virginia recently joined a growing list of states that have passed legislation prohibiting employers from enforcing non-compete agreements against low-wage employees.  Illinois, Maine, Maryland, Massachusetts, New Hampshire, Rhode Island, and Washington have already enacted similar legislation.  And as we previously posted, similar legislation was introduced in the United States Senate nearly a year ago, though it did not advance.  The trend reflects recognition among policy makers that non-compete agreements may unfairly restrict low-wage workers, who generally have limited bargaining power with respect to employers, from seeking new employment opportunities.

Continue Reading Virginia Joins States That Restrict Use of Non-Compete Agreements

The First Circuit’s decision in TLS Mgmt. & Mktg. Servs., LLC v. Rodriguez-Toledo, 966 F.3d 46 (1st Cir. 2020) is an important reminder that trade secret owners must take great care to understand the nature of their trade secrets, how they satisfy the legal definition of trade secrets, and how they differ from other forms of intellectual property as early as possible in a case in order to create the factual record required for full enforcement and recovery.

Continue Reading First Circuit Reversal Highlights Importance of Satisfying Trade Secret Definition