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The dichotomy between patent and trade secret cases is as old as time. But, Lex Machina’s newest platform – trade secrets – reveals some interesting new insights on key differences between patent and trade secret cases that will matter to plaintiffs and defendants alike. In trade secrets cases, 71% of cases that resolve at trial are won by claimants whereas 29% are won by claim defendants. LexMachina Article. By contrast, in patent cases filed between 2000 to 2018, 7% were won by the claimant whereas 4% were won by the defendant while 68% of those cases resulted in a likely settlement and 14% resolved on a procedural resolution. This stark contrast in outcomes when comparing the different types of intellectual property is useful to clients who are assessing how best to protect these valuable resources. Lex Machina offers evidence about the success of different types of remedies in trade secret cases, revealing 51% of cases granted a temporary restraining order (“TRO”), 86% of cases granted a Permanent Injunction, and 63% of cases denied a Preliminary Injunction which can be further refined by jurisdiction to provide useful intel on case strategy when bringing these cases. Lex Machina also offers empirical data on the outcome of patent litigation, notably the relative proportion of infringement versus no infringement findings at trial. With this data, attorneys can make more informed strategic decisions for their clients for both patent and trade secret cases.

Just last week, Lex Machina introduced its newest module which will cover trade secrets litigation – one of the most requested additions to this valuable analytical platform.

Lex Machina is an important tool for all trade secret litigators, drawing from nearly 10,000 trade secret cases in federal court since 2009 to provide in-depth strategic insights on cases with allegations ranging from state trade secret misappropriation to Defend Trade Secrets Act (“DTSA”) violations.

Lex Machina offers analytical data on key aspects of trade secret cases, including the size of damages awards in a given jurisdiction to the likelihood of securing a preliminary injunction to the most common law firms representing plaintiffs in trade secret cases. Lex Machina can be used to both track trends in trade secret cases over time and drill into specific cases and download copies of relevant pleadings or motions.

Lex Machina also can be a valuable tool both to advise clients who are interested in how long it takes to resolve a trade secrets case either on dispositive motions or at trial and develop a solid legal strategy on issues like whether to file in a certain jurisdiction based on a judge’s track record with trade secrets cases.

For anyone practicing in the trade secrets space who wants a leg up on the latest trends and authoritative insights backed by data, Lex Machina could be a game changer and won’t remain secret for long.

On April 19, a divided Texas appellate panel reversed a jury’s $4.5 million award of exemplary damages, finding no evidence of malice in a hydraulic fracturing trade secret misappropriation case. Shale Exploration, an independent Oil and Gas Exploration company, accused Eagle Oil & Gas of breaching a confidentiality agreement and engaging in theft of trade secrets (Shale’s identification and compilation of mineral interest owners). However, the Court found no evidence of malice despite even testimony of Shale’s own President. The panel affirmed all other findings of the lower court’s decision.

A Pennsylvania federal judge grants Ex-PharMerica Executive’s motion for summary judgment. PharMerica, a company that provides long-term care pharmacy services to organizations such as senior living communities, filed suit against ex-executive Lena Sturgeon and two other ex-PharMerica employees in September 2016. A decision on defendant’s motion for summary judgment was released on March 16, 2018.

The company accused the ex-employees of misappropriating trade secrets after leaving PharMerica to launch a rival company called ContinuaRX LLC. PharMerica argued that trade secrets arose from its marketing plans, software, training programs, and customer service metrics, along with documents created to assist PharMerica’s employees with doing their jobs. In its decision, Judge Cercone noted that PharMerica admitted, however, that: there was nothing trade secret or confidential about the customers in its market; pricing and margins in long-term care pharmacy marketplace are largely fixed by Medicare and Medicaid reimbursement rates; nearly all pharmacies follow state Medicaid comparable reimbursement strategies; and PharMerica trains customers on software that contains no prohibition against customer disclosure, among other relevant facts invalidating PharMerica’s arguments. Continue Reading Pennsylvania Judge Throws Out Pharmaceutical Trade Secrets Lawsuit

Uber and Waymo’s high-profile legal battle has come to an abrupt halt, as the parties agree to settle the case a mere five days into trial. For its part of the deal, Waymo will get a 0.34% stake in Uber, worth about $245 million based on Uber’s present valuation. In prior negotiations, Waymo had been seeking $1 billion and just earlier in the week  had proposed $500 million. Uber rejected both offers. But after four days of testimony there was scant evidence showing that Uber actually used Waymo’s trade secrets. The settlement was entered into late last Thursday and announced last Friday.

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Uber continues to find itself in the midst of trade secret-related controversy. Last Wednesday, the Florida Fourth District Court of Appeal affirmed the trial court’s decision in ordering Broward County to produce redacted monthly Uber reports to Yellow Cab. These monthly reports contain information regarding the number of pickups and drop-offs, time stamps, latitude and longitude, and driver’s license plate information. Following the trial court’s in camera inspection of the un-redacted reports, it held that the “aggregate number of pick-ups and the sum of money paid by [Uber] to the County as a usage fee at the [airport] does not constitute trade secret information such that it would be exempt found no abuse of discretion by the trial court, noting that the Public Records Act is construed “liberally and favors openness”, and citing Cotter v Lyft, Inc., No. 13-cv-04065-VC, 2016 WL 3654454, at *2 (N.D. Cal. June 23, 2016), which held that Lyft’s commissions and revenue from certain products were not trade secrets. The Court thus held that “[n]othing indicates the fees or total pickups provide an advantage to Yellow Cab or that Uber derives independent economic value from keeping that information secret.”

Case: Rasier-DC, LLC v. B & L Serv., Inc., 4D16-3070, 2018 WL 354557 (Fla. 4th Dist. App. Jan. 10, 2018).