The Supreme Court recently denied a petition for certiorari by Monib Zirvi and others, in which petitioners sought Supreme Court intervention regarding the notice required to trigger the statute of limitations clock for trade secret misappropriation claims. The case is Zirvi et al. v. Flatley et al. (Case No. 20-1612). You can review the petition here. The case arises out of a 2018 lawsuit, in which four self-described inventors of DNA Arrays brought suit against Illumina, a “multibillion-dollar, global player in genetic analysis,” alleging that Illumina and its associates conspired to steal Petitioner’s trade secrets and covertly conceal the information in patent applications. According to Petitioners, the DNA Arrays at issue are now used in the detection of cancer, inherited genetic defects, and viral infections such as COVID-19.

Petitioners allege that in 2015, they discovered that Illumina and other Respondents were engaged in a 25-year conspiracy to steal their inventions, including by “fraudulently conceal[ing] the misappropriated IP in multiple patent applications” as early as the late 90’s. While Petitioners allege that they did not have the requisite notice to trigger the statute of limitations clock until 2015, the U.S. District Court for the Southern District of New York found that that information and inventor names in the publicly available patent applications from the late ‘90s and early ‘00s should have put them on notice. The court further held that patent interference proceedings in 2006 and a patent infringement action in 2010 involving the same patents at issue and some of the named-Respondents gave Petitioners “inquiry, if not actual, notice” of the misappropriation. The District Court dismissed Petitioners claims as time-barred under any conceivably applicable statute of limitations, and the Second Circuit affirmed.

Petitioners contend that the Second Circuit should have applied the Federal Circuit’s notice standard set out in Coda v. Goodyear, where the court reversed the dismissal of a trade secret misappropriation claim as time-barred, because the requisite notice was not triggered by publication of a patent application containing the trade secrets at issue. The Federal Circuit rejected “Defendants’ theories based on . . .  the purported ease of discovering new patents and patent applications.” The court would not “infer that Plaintiffs were looking for SIT patents (or should have been doing so) at a certain time and that they would have found the ’586 patent application at the time it was published.” 916 F.3d 1350, 1361 n.8 (Fed. Cir. 2019).

However, unlike in Coda, the issue here is that Petitioners may have had more reason to be on notice of Illumina’s alleged misappropriation – in particular, because the 2006 patent interference proceedings and 2010 patent infringement litigation involved the same patents at issue and some of the named-defendants. These facts were central in whether this case presented a true circuit split ripe for resolution by the Supreme Court. The Supreme Court clearly did not believe so.