By Thomas J. Gray of Orrick, Herrington & Sutcliffe LLP
Thomas Gray, of counsel in Orrick, Herrington & Sutcliffe's Orange County office, focuses on IP litigation involving trade secrets, patents, trademarks, license agreements and other commercial disputes.
Imagine you find out that your biggest competitor just received a patent based on stolen information regarding your all-important confidential methods of production or trade secrets concerning your next generation product. Clearly, it is a serious situation. Your previously confidential, and valuable, information has been published in an issued patent or pending application for all the world to see, thus destroying trade secrets protection for the technology.1 Worse yet, through its wrongfully acquired patent, your rival now has the exclusive right to use the invention and exclude all others from practicing the technology – including you! So, not only has your competitor stolen and used your confidential information and permanently destroyed your trade secret protection as to third parties, your company potentially could have to defend itself against a patent infringement lawsuit that goes to the heart of your very own technology. Not a very appealing proposition. Especially if you had been practicing the invention or intended to use the technology in your next generation product.
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