Here are the noteworthy posts, cases and articles from the past week:

Trade Secret and Non-Compete Articles, Cases and Posts:

  • If a law firm loses a trade secrets case, will it be sued for malicious prosecution?  That is the question raised in a post this week by Epstein Becker’s Trade Secrets and Unfair Competition Blog as it reports on a recent case filed in Los Angeles against Latham & Watkins.  The case brought by William Parrish and Timothy Fitzgibbons relies on findings by the trial court and appellate court that the underlying action was brought in bad faith.  The allegations in this case appear to echo the verdict in a major case here in Ohio, American Chemical Society v. Leadscope, which led to an award of over $25 million and is on appeal to the Ohio Supreme Court. 
  • In February, I reported on a case brought by the IP merchant bank Ocean Tomo against Steve Lee, a former president of one its business units, who was allegedly going to disclose privileged information and trade secrets to an opposing party in an arbitration pending in Illinois.  Bloomberg is reporting that the case has been settled and that an April 3rd court order bars Lee from disclosing Ocean Tomo trade secrets, including attorney-client communications and attorney workproduct related to that arbitration.
  • The IP Watchdog continues to wring its hands over the newly-expanded prior commercial use defense under the America Invents Act.  In the most recent guest post by Nicholas Mattingly entitled “Prior User Rights: The Uncertainty Will Cost You,” Nicholas argues the mere uncertainty caused by the defense will erode confidence in and use of patents. For a completely different conclusion, please check out the guest post below by David Almeling and Darin Snyder.
  • No confidentiality agreement?  No trade secret claim for you!  That pretty much sums up the Seventh Circuit’s recent decision in Fail Safe, LLC v. A.O. Smith Corp.  Both Seyfarth Shaw’s Trading Secrets Blog and Littler’s Unfair Competition & Trade Secrets Blog have more detailed posts about the case.
  • Last December, I wrote a post about AvidAir Helicopter v. Rolls Royce, an Eighth Circuit decision that enforced a relatively weak trade secret claim but conducted a nice methodical analysis of trade secret law that every court should apply.  AvidAir’s request for en banc reconsideration was recently denied and it will apparently be filing a writ of certioriari with the U.S. Supreme Court. 
  • New Hampshire is considering legislation that would require an employer to disclose the requirement of a non-compete at the time of hire.  The failure to do so under the contemplated bill, HB 1270, would render the agreement void and unenforceable.

Computer Fraud and Abuse Act Articles, Cases and Posts: 

  • The Ninth Circuit’s 9-2 en banc decision in U.S. v. Nosal continues to generate headlines and even The New York Times is chiming in with an editorial that not unexpectedly supports the Ninth Circuit’s decision. Given the tremendous interest in Nosal, I am going to put together a compilation of the various blogs and articles by commentators around the web next week, as well as my own take on the decision.


Social Media Posts and Articles: 

  • Looking for a good summary of all the pending legislation around the U.S. attempting to address privacy and social media?  Look no further than Russell Beck’s Fair Competition Blog.

Cybersecurity Posts: 

  • The rhetoric is already over-heating for a SOPA-like battle over the emerging cybersecurity legislation, as the Electronic Frontier Foundation exhorts that “Dangerously Vague Cybersecurity Legislation Threatens Civil Liberties.” 
  • The outcome of this legislation may turn out differently, however, because as Forbes reports in a post entitled “Facebook Responds to CISPA,” the big players that helped take down SOPA, such as Facebook, may be supporting the cybersecurity legislation. 

News You Can Use:

  • A lot of trade secret cases could be avoided if we followed Forbes‘ John Wasik’s advice, “Trusting the Wrong People: Think More Like Spock.”