Thursday, January 14, 2021
The US Court of Appeals for the Ninth Circuit affirmed a dismissal of trade secret claims, finding that although misappropriation of a trade secret prior to the enactment of the Defend Trade Secrets Act (DTSA) does not preclude a claim arising from post-enactment or continued use of the same trade secret, the publication of a trade secret in a patent application extinguishes trade secret status.
Eli Attia; Eli Attia Architect PC v. Google LLC, et al., Case No. 19-15771 (9th Cir. Dec. 16, 2020) (Wallace, J.)
Eli Attia is an architect who developed a system and method for automated design, fabrication and construction, called Engineered Architecture (EA). In 2010, Attia entered into a partnership with Google. Attia disclosed his trade secrets related to the technology to Google so that they could work together to develop a program that would implement EA. Attia executed patent assignments with Google, and a year later Google filed patent applic
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The Defend Trade Secrets Act (“DTSA”), enacted in 2016, created a federal right of action for misappropriation of trade secrets. The Ninth Circuit recently addressed for the first time whether a DTSA claim may be brought against misconduct predating the enactment of the DTSA. The Ninth Circuit held that it could, so long as the misappropriation continued until after the enactment of the DTSA.
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Attia, plaintiff Eli Attia developed a new architecture technology called Engineered Architecture (“EA”). In July 2010, Google approached Attia about partnering to create a program to implement EA. Attia disclosed his alleged EA trade secrets with the understanding that Google would compensate him if the program was successful. In 2011, Google allegedly filed patent applications based on the EA trade secrets. After the patents published in 2012, Google allegedly excluded Attia from the project and used
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“On motions to seal, which can consume a great deal of the court’s time and effort, get it right the first time. And by the way, be scrupulously aware of variations in rules among district courts.”
One of the uniquely fascinating aspects of trade secret disputes is that they are laced with unbridled emotions, accusations of treachery, and actors who angrily disagree over basic facts. In other words, they provide a perfect metaphor for the year 2020.
Let’s take a look back at the cases this year that are worthy of comment, either because they involved some unusual set of facts or because they provide useful guidance for behaving better in 2021.
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This week, the Ninth Circuit resolves a novel question about continuing violations under the Defend Trade Secrets Act, and invalidates an agency’s conclusion that computer programmers are not entitled to “specialty occupation” visas.
As a matter of first impression, the Court holds that the Defend Trade Secrets Act applies to post-enactment misappropriation that began prior to enactment of that statute, but that the plaintiff’s trade secret protection here was extinguished by publication in a patent application.
Panel: Judges Wallace, Tashima, and Bade, with Judge Wallace writing the opinion.