In an opinion first issued in June 2020 and modified in October 2020, the Fifth Court of Appeals in Texas granted summary judgment in a trade secret dispute based on plaintiff’s failure to present any facts that defendants had access or exposure to plaintiff’s claimed trade secrets.  Josh Malone designed a device that fills and seals water balloons.  Kendall Harter did the same.  Mr. Malone filed a patent.  Mr. Harter accused Mr. Malone of stealing his water balloon filling design.  According to Mr. Harter and KBIDC Investments, the company that acquired Mr. Harter’s company, Mr. Malone came up with his patented product by stealing the trade secrets belonging to Mr. Harter and then KBIDC Investments.  So, KBDIC Investments sued Mr. Malone and Zuru Toys, which acquired an interest in Mr. Malone’s “Bunch O’ Balloons” product for trade secret misappropriation.
Continue Reading Bunch O’ Balloons Trade Secret Dispute Results in Bunch O’ Appeals

On March 13, 2021, borrowing from California Code of Civil Procedure § 2019.210 (which requires a plaintiff to “identify. . . trade secret[s] with reasonable particularity” before it can obtain discovery on those trade secrets), a Northern District of California judge narrowed trade secret claims asserted under the Defend Trade Secrets Act (“DTSA”) due to the plaintiff’s failure to specifically identify most of its asserted trade secrets prior to discovery.  Although not an explicit requirement under federal law, the Court reasoned that the disclosure requirement served to prevent plaintiffs from getting discovery and then using that discovery to “cleverly specify whatever happens to be there as having been trade secrets stolen from plaintiff.”  The decision could be significant for trade secret litigants going forward.

Continue Reading Federal Court Imports California Trade Secret Disclosure Rule and Narrows DTSA Claim

What does it take to sufficiently plead trade secret claims under the New Jersey Trade Secrets Act?

In Lard-Vid, LLC and Visual Image Display UK, Ltd. v. Ground Support Labs LLC et al., 2021 N.J. Super. Unpub. LEXIS 323, at *15 (N.J. Sup. Ct. Feb. 26, 2021), the Court addressed exactly this issue and dismissed plaintiffs’ trade secret claims for failure to allege facts sufficient to satisfy the elements of the New Jersey Trade Secrets Act.


Continue Reading New Jersey Superior Court Tosses Trade Secret Claims for Failure to Plead with Sufficient Specificity Under New Jersey Trade Secrets Act

A Complaint recently filed in the Southern District of New York may shed light on courts’ willingness to apply a broad interpretation of “misappropriation” in trade secrets cases. Plaintiff Greenpoint Capital Management, which grants loans to law firms to fund high-stakes litigation, has accused Apollo Hybrid Value Management LP and Apollo Hybrid Value Management GP

On March 1st, Florida Governor Ron DeSantis, along with GOP members of the state’s House of Representatives and Senate, announced legislation to address corporate espionage and foreign influence in Florida. In public remarks about the proposed legislation, Florida House Speaker Chris Sprowls expressed concern about the threat of China’s influence on local governments and university systems, stating “that there are no limits to the depths to which other countries, especially China, will go to steal our science and technology.”

Continue Reading Florida Lawmakers Seek to Address Corporate Espionage in Proposed Legislation

On February 10, the U.S. International Trade Commission (“ITC”) issued a final determination finding South Korean lithium-ion electric vehicle battery maker SK Innovation misappropriated the trade secrets of its Korean competitor LG Chem in violation of Section 337 of the Tariff Act of 1930.  The ITC issued a 10-year exclusion order blocking SK’s imports into the U.S. of lithium-ion batteries and related products, but with substantial exceptions: SK is permitted to continue importing these products specifically for Ford Motor Co.’s EV F-150 program for four years, for Volkswagen of America’s modular electric drive line for two years, and for the repair and replacement of EV batteries for Kia vehicles sold to U.S. customers.  President Biden and his U.S. Trade Representative—Katherine Tai has been nominated but not yet confirmed—now have 60 days to review the ITC’s electric vehicle battery exclusion order, an order that could be seen as in tension with the new administration’s promotion of green energy.

Continue Reading ITC Finds Trade Secret Misappropriation and Bars Electric Vehicle Batteries from SK Innovation—With Exceptions

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

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 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.

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