Now, roughly five years and one federal trade secrets statute later, Massachusetts has become the 49th state, leaving New York as the lone holdout. The new law, which takes effect on October 1, 2018, is part of an amendment to a $1.1 billion economic development bill that Massachusetts Governor Charlie Baker signed into law on August 10, 2018. With the enactment of the UTSA, Massachusetts courts will have newfound power to enter injunctions against actual or threatened misappropriation of trade secrets.
In a testament to the wide breadth of potential trade secret protection to any number of industries, a court in the Western District of Washington denied a 12(b)(6) motion to dismiss Seattle Sperm Bank’s (SSB) DTSA and Washington Uniform Trade Secrets Act claims against its prior employees who set up a competing company, Cryobank America. Among other things, SSB alleged that in the months leading up to their departure, the employees copied 10 folders, including 67 Standard Operating Procedures (SOPs) and 149 forms, to a portable hard-drive that they took with them upon their departure from SSB. READ MORE
Several months ago, we reported on the potential to protect trade secrets by encrypting information using blockchain technology. Then, earlier this month, we reported on an order out of the Southern District of California involving “CryptoKitties,” a decentralized application (or “DApp”) built on the Ethereum blockchain (using the ERC721 protocol) that allows users to securely buy, sell, trade, and breed genetically unique virtual cats.
While the potential to protect trade secrets using blockchain technology is clear, the reasoning in the CryptoKitties order raises questions regarding whether blockchain technology could constitute a trade secret in and of itself or when combined with other concepts or business methods pursuant to Federal and California law.
What do kittens, three-time NBA Finals champion Stephen Curry, and cryptocurrency have in common?
On May 7, 2018, a subsidiary of Launch Labs, a Canadian corporation doing business as Axiom Zen, released cryptocollectibles called “CurryKittens.” Cryptocollectibles are unique, digital tokens created using blockchain technology. The CurryKittens, a type of Cryptocollectible, were virtual kittens with the likeness of NBA star Stephen Curry. The CurryKittens were three of many virtual cats that could be securely bought, sold, traded, and bred on the multimillion dollar- generating CryptoKitties platform. (An image of the now suspended “CurryKittens” can be found here.) READ MORE
A recent case from the Federal Circuit upholding a jury’s finding in favor of defendant offers lessons to both defendants and plaintiffs on preparing for trade secrets misappropriation actions. Both plaintiff, Raytheon, and defendant, Indigo, are companies in the infrared imaging equipment business. Of the four Indigo founders, three of them were former Raytheon employees, causing Raytheon to accuse Indigo of misappropriating its trade secrets. Specifically, Raytheon accused Indigo of using Raytheon’s sequential vacuum bake recipes and in situ solder seal package assembly process taken by the former Raytheon employees to develop Indigo’s recipes and processes. READ MORE
In July 2018, a federal judge in Wisconsin imposed a $1.5 million penalty—the maximum statutory fine—against Chinese wind turbine manufacturer, Sinovel Wind Group Co. Ltd., for stealing trade secrets from Massachusetts-based technology company, AMSC Inc. In addition to the fine, Sinovel was sentenced to 1 year probation and ordered to pay $57.5 million in restitution to AMSC, an amount the companies had settled on prior to the ruling. Sinovel also agreed to pay $850,000 to Massachusetts wind turbine operators. READ MORE
In the world of election politics, arms-length dealing with political adversaries is a delicate dance. Recently, TargetSmart, a Democratic data firm learned how risky even negotiating with those on the same side of the aisle can be. On June 28, 2018, TargetSmart filed a complaint in the District Court of Massachusetts against GHP, a Boston-based investment firm, and Catalist, TargetSmart’s competitor in the Democratic consulting space, seeking damages and permanent injunctive relief for misappropriation of trade secrets, breach of contract, and other claims arising from a merger negotiation gone-wrong. READ MORE
The strange contraption in this photo is at the heart of a recent decision regarding the pleading standard for DTSA claims. On June 15, Eastern District of Pennsylvania Judge Juan Sanchez denied a motion to dismiss counts of trade secret misappropriation against Joshua Andrew Adams, a former project engineer for PDC Machines, Inc. who left the company and later joined Nel Hydrogen A/S. PDC and Nel collaborated in 2008 to develop high-pressure hydrogen gas diaphragm compressors and signed a nondisclosure agreement (NDA) barring Nel from replicating or reverse engineering the technology. Adams was also subject to an NDA that prohibited him from using any of PDC’s confidential information and trade secrets without written permission. In the complaint, PDC asserts that Adams now works for Nel, and that Nel has filed at least one patent application listing Adams as the inventor for a high-pressure diaphragm hydrogen compressor that is nearly identical to PDC’s version. READ MORE
Just days after the European Union’s widely-discussed new data privacy regulations, the General Data Protection Regulation (“GDPR”), took effect on May 25, 2018, another EU-wide legal change quietly occurred. (And if you’re still puzzling through GDPR compliance, fear not: We have plenty of resources for you here.)
But on to the less familiar date: June 9, 2018, was the deadline for EU member states to comply with the new Directive on the Protection of Trade Secrets. As we’ve reported before, the European Parliament adopted the Directive in 2016 to harmonize national laws regarding trade secrets protection. Under the Directive, trade secrets owners across Europe should enjoy increased protection and uniformity—welcome news, given that the laws have historically differed significantly from country to country.
In some cases, there may be a severe cost – even a monetary cost – for plaintiffs who seek to materially amend their trade secrets disclosure following discovery. This is what happened to the plaintiff, Swarmify, in its lawsuit against Cloudflare, now pending in the U.S. District Court for the Northern District of California.
As we reported previously, on February 27, 2018, the court in this case denied Swarmify’s motion for a preliminary injunction for failure to show irreparable harm. At that time, the court commented that Swarmify’s trade secrets disclosure, produced pursuant to California Code of Civil Procedure Section 2019.210, was severely overbroad and “ever-shifting,” which the court characterized as a “blatant abuse of the system.” READ MORE