Examples of Trade Secrets In Life Sciences
The term trade secret refers to intellectual property—including but not limited to an idea, pattern, formula, or process—that is kept secret by the owner of that information to prevent its theft or misuse.
Examples of trade secrets in the life sciences include drug compounds, formulations, routes of synthesis, manufacturing details, protein production/isolation/post-translational modifications/assays/storage, vendor names and pricing, marketing strategies, etc. Trade secrets, by nature, provide a competitive advantage to the owner and are reasonably expected to remain a secret unless acquired via theft.
Although other forms of intellectual property are typically protected by official registration, trade secrets are not. Trade secrets are like a forgotten step-child. Registering for a patent or copyright, for example, creates an official record of your invention or artistic work. Your intellectual property can be traced back to this registration if someone tries to steal it or use it without your permission.
Trade secrets, on the other hand, are protected solely by their status as a secret. If the information is leaked or stolen, the owner of that intellectual property may lose his/her competitive advantage in the market.
Trade Secrets Theft
Although they cannot be officially registered for their protection, trade secrets are protected by law. Trade secret protection was enhanced in 2016 with the passage of the Defend Trade Secrets Act. A trade secret was likely obtained illegally if fraud, theft, bribery, or a breach of a nondisclosure agreement was involved in its acquisition. Did someone hack into company files? Did a disgruntled employee who had signed a nondisclosure agreement give the competitor a secret recipe to spite his employer?
We generally see a theft in progress when a current employee is stealing secrets because of he/she is about to quit and join a new company. Or the employee is in the process of setting up his own company, here or elsewhere. Swift enforcement may stop the competitor from profiting from the theft.
The improper acquisition of a trade secret need not be intentional to constitute misappropriation or theft. It does, however, require the individual to use or disclose the information without permission, after discovering its status as a trade secret. A current employer has to be careful about inadvertently receiving another’s secrets from employees. This often happens when a new employee brings with him the secrets from past employers, often in an effort to “look good” to new management. Accordingly, receiving stolen secrets is just as problematic as if you were thief himself.
If your intellectual property has been compromised due to misappropriation or theft, the skilled legal team at Upadhye Tang LLP can help.
As a trade secret owner, you do have a responsibility to protect this information to the best of your ability. If the owner of a trade secret fails to take reasonable precautions to maintain its secrecy, the intellectual property will likely lose its status as a trade secret. Furthermore, trade secrets that are intentionally made public by the owner immediately lose their protection as a result. The owner cannot claim it’s a secret if the owner does not treat it like a secret.
And finally, one has to balance the threat of “inevitable disclosure” because of misappropriation by memory (i.e., the person does not take any physical or tangible things but memorizes it instead) and whether any memory is really just a marketable general skill or knowledge in the industry. The employer has an interest in protecting its secrets that were developed during R&D consuming valuable resources. The departing employee has an interest marketing and monetizing his knowledge, skill, and experiences.
Where To Look For Trade Secret Problems
When a company is investigating if secrets are being stolen, there are lots of places to look. In our experience, thieves tend to conduct the same activities. Our investigation into the theft or misappropriation of your trade secret may include the following:
- USB sticks
- Company and personal emails
- Uploads to cloud storage
- Identifying access to network drives/middle of the night access to file servers
- On-site key card analysis of sensitive areas
- Bulk copying at copy centers
- Last minute trips to foreign countries
How We Can Help
At Upadhye Tang LLP, we understand the highly-complex nature of legal issues involving the theft and misappropriation of trade secrets. We help on the policy creation, enforcement, and defense sides. If you are currently in possession of a trade secret you wish to protect, our skilled legal team can help you with all aspects of pre-litigation compliance. We will review agreements and conduct audits to ensure you have implemented the most effective protection strategy possible. We help put the requisite compliance program into place.
If you have already fallen victim to theft or misappropriation, we will fight tirelessly to enforce the legal protections you are entitled to. On the enforcement side, we can help work federal prosecutors on any parallel criminal enforcement. Our work on the enforcement side also lends itself to the defense side. Just because the owner claims there are secrets does not make them so. We are very effective in mounting the defense.
Contact Upadhye Tang LLP Today
At Upadhye Tang LLP, we understand the procedures and nuances of claims related to trade secret misappropriation. We represent companies and individuals in theft cases involving ex-employees, current employees, and anyone who has used intellectual property without express permission or consent. Contact Shashank Upadhye at Upadhye Tang LLP today at 312-327-3326 for more information.
