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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.
Continue Reading Supreme Court Declines to Weigh in on Notice Required to Trigger Statute of Limitations for Trade Secret Misappropriation Claims

In a recent order, a judge in the Western District of North Carolina held that even though Plaintiff filed for a preliminary injunction in the United States, it may also arbitrate the dispute in Switzerland.  This highlights that even with an arbitration agreement in place, trade secret litigation can occur on multiple fronts.
Continue Reading Multi-Front Trade Secret Protection: Moving for Injunction in U.S. Court Does Not Stop Plaintiff from Arbitrating in Switzerland

The Seventh Circuit Court of Appeals recently upheld a preliminary injunction prohibiting a former distributor and its parent company from selling a spine implant device that incorporated trade secret information. Plaintiff Life Spine, Inc. had created a device to correct spinal spacing issues during surgery. Life Spine contracted with Defendant Aegis Spine to distribute the device only to medical facilities nationwide and to keep Life Spine’s confidential information secret and use the confidential information only in furtherance of the business relationship. However, Life Spine alleged that Aegis Spine passed confidential details, such as component dimensions to fractions of a millimeter of the device, to Aegis Spine’s parent company, who quickly developed a similar device that competed against Life Spine’s device. Life Spine sued Aegis Spine and its parent, alleging that Aegis Spine misappropriated its trade secrets, as well as other contractual and tort claims, and sought a preliminary injunction. Based on findings of trade secret misappropriation and breach of contract, the Northern District of Illinois entered a preliminary injunction against Aegis Spine and its business partners from making, marketing, distributing, selling, or obtaining intellectual property rights in the competing device to Life Spine’s device.
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Continue Reading Seventh Circuit Affirms Trade Secret Protection of Patented Spinal Implant Device

The District Court for the Southern District of California held that despite not alleging direct evidence of misappropriation, a complaint’s allegations about a company’s lack of experience in the particular industry coupled with its purported behavior during business negotiations were sufficient to state a claim that an allegedly competing product misappropriated trade secrets under the Defend Trade Secrets Act (DTSA) and to defeat a motion to dismiss. According to the Complaint, Applied Biological Laboratories (ABL), a biotechnology company that researches, develops, manufacturers, and distributes healthcare products, developed an antiviral nasal technology using immunoglobulin G, a common antibody in body fluids. ABL’s antiviral nasal spray is allegedly effective against rhinoviruses and novel respiratory pathogens, such as COVID-19. With an application to the mouth and nose, the antiviral spray allegedly aids in naturally flushing pathogens and foreign particles in the digestive tract.
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Continue Reading Curiosity Killed A Motion to Dismiss: A Biotech Company’s Business Negotiations Turn into a Trade Secrets Fight

As the sci-fi dream of commercialized flying cars seems close to landing in reality, the electronic vertical takeoff and landing (“eVTOL”) industry is heating up, spurring new bouts over trade secrets.

Wisk Aero LLC (“Wisk”) is a veteran eVTOL company, and has been developing the technology for over a decade. The aircraft they manufacture are often described as “air taxis” or “flying cars.”  The technology behind these aircraft is now at a sufficiently sophisticated stage that commercialized versions are imminent.…

Continue Reading Flying Car Trade Secrets Dispute to Be Heard on the Merits

On June 8, 2021, the Third Circuit clarified the requirements for making a trade secret misappropriation claim under the Defend Trade Secrets Act (“DTSA”) in a decision vacating the District of New Jersey’s dismissal of a trade secret misappropriation lawsuit against a former employee and his current employer. In short, the Third Circuit’s decision took a more relaxed view than the District Court, finding that a trade-secret plaintiff need not “spell out the details of its trade secret” or have direct allegations of misappropriation and harm to avoid dismissal.
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Continue Reading The Third Circuit Clarifies DTSA Pleading Requirements, While Vacating Dismissal

While California law is clear regarding the elements required to establish a misappropriation of trade secrets claim, the law has remained unsettled on the elements required to maintain an action for threatened misappropriation of trade secrets. However, in the case of Beauty Barrage LLC, et al. v. Dermaceutical Laboratories LLC, et al., San Francisco Superior Court Judge Anne-Christine Massullo shed some light on the question.
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Continue Reading Addressing Wrinkles in California’s Threatened Misappropriation of Trade Secrets Law

Bolsinger is still pitching! After a recent dismissal for lack of jurisdiction in California, former Major League Baseball pitcher Michael Bolsinger refiled claims against the Houston Astros in state court in Houston, Texas on May 13, 2021.  While asserting similar factual allegations as his original California complaint, the former Toronto Blue Jays pitcher has abandoned his previous unfair business practice causes of action in favor of claims for trade secret misappropriation under the Texas Uniform Trade Secrets Act and for conversion. Bolsinger claims that the pitching signs he used during his August 4, 2017 game against the Astros were trade secrets.
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Continue Reading Major League … Misappropriation?

As predicted, the trade secrets battle between Olaplex, Inc. and L’Oreal continues – and L’Oreal has scored a fresh victory.  On May 6, 2021, the Federal Circuit Court of Appeals overturned a $66 million judgment against L’Oreal and ordered a new trial – but only on one of Olaplex’s patent claims.  The panel stated that Olaplex had entirely failed to show that its information was eligible for trade-secret protection, and that no reasonable jury could find otherwise. …
Continue Reading Partial Victory for L’Oreal In Hair Coloring Fight

First off, don’t worry, Coca-Cola’s super-secret trade secret recipe is still safe.  But on April 22, 2021, a jury in the Eastern District of Tennessee convicted a former Coca-Cola employee, Dr. Xiaorong (a/k/a Shannon) You, of stealing trade secrets related to BPA-free coatings for the inside of beverage cans for the Chinese Government. The Indictment alleged that the trade secret information cost almost $120 million to develop. The twelve-day in-person trial focused not just on the former employee’s wrong doing, but also on some the best practices Coca-Cola and Eastman Chemical Company used to protect the trade secrets at issue.
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Continue Reading Former Coca-Cola Employee Convicted of Stealing Trade Secrets for the Chinese Government