An interesting case decided on April 3 in Florida confirms the
axiom that information that is not secret cannot be a trade secret.
Godwin Pumps of America, Inc. v. Ramer, Godwin sued its former
employee, Ramer, for, among other things, trade secret
misappropriation under Florida's Uniform Trade Secret Act (see
here for more on the Act). Godwin argued that there was nothing
in dispute for a jury to hear on Ramer's liability and moved
for the judge to enter summary judgment against Ramer. The judge
denied the motion on the trade secret claim because there was a
dispute over whether the information Ramer
acquired—including information on Godwin's customers,
pricing, products, and services—was actually secret.
Ramer argued that information on Godwin's products and pricing
is available on the Internet, that the state government publishes
information that can be used to identify Godwin's potential or
current customers, and information like that at issue in the case
is routinely acquired and collected by competitors from external
sources, such as customers. The court was convinced to let the case
go to trial. Similar arguments have held up in Massachusetts
courts. See, e.g., Campbell Soup Co. v. Giles, 47 F.3d
467, 469-70, 472 (1st Cir. 1995) (affirming denial of preliminary
injunction by Massachusetts district court in trade secret case
determined in part because "most of the marketing information
was no longer confidential in light of its public disclosure"
to customers and in published sales materials and syndicated data
The lesson here is that employers should think about the
confidential information a departed employee may possess before
filing a trade secret claim. Former employees frequently will argue
that information is not secret to defend against such claims, and
sometimes those arguments are hard to overcome.
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Finjan is particularly instructive in the trade secret context because information transferred electronically can still embody highly valuable info even if the information is not transcribed in a physical medium.
Current patent reform efforts in Congress center around two pieces of legislation. One, pending in the House of Representatives is sponsored by Rep. Bob Goodlatte (R-VA) (H.R. 9, known as the "Innovation Act").