Genetic Engineering & Biotechnology News

AUG 2013

Genetic Engineering & Biotechnology News (GEN) is the world's most widely read biotech publication. It provides the R&D; community with critical information on the tools, technologies, and trends that drive the biotech industry.

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LegalAffairs Rethinking Trade Secret Protection Given Recent Rulings on Biotech Patents, Firms Ought to Fully Protect Their Proprietary Info Judy M. Mohr, Ph.D. The traditional approach of patents to protect proprietary information in biotechnology, personalized medicine, and diagnostics has gradually weakened over the last few years in view of several court decisions. One of these decisions was on June 13, in which the Supreme Court ruled that naturally occurring DNA sequences are not eligi- ble for patenting—a marked departure from decades of the U.S. Patent and Trademark Offce issuance of patents to gene sequences. With the option to protect newly identifed gene sequences with a patent no longer possible, companies should rethink the role of trade secrets to protect proprietary information. One part of trade secret protection is implementing an internal trade secret pro- Color your lab MiniBio and my-Control: good looks, great performance Our colorful range of MiniBio bioreactor systems provides a true scale down of your laboratory scale bioreactors. The MiniBio systems have the same versatility as the laboratory scale bioreactors. This means that the MiniBio systems can be customized to fit your demands for any process. The small volume reduces medium costs and optimizes the use of expensive bench space. MiniBio and my-Control: colorful power for every lab • Microbial and Cell culture configuration • Batch, Fed-Batch and Continuous cultivation • True scale down design offers easy scale-up of processes • 250ml Total volume with up to 200ml working volume • pH, DO, Temperature, Level and Foam sensors • 500ml Total volume with up to 400ml working volume • Classical sensors for reliable and stable signals • 1000ml Total volume with up to 800ml working volume • Up to 6 variable speed pumps or micro valves • Borosilicate glass vessel and stainless steel head plate and inserts for additions • Gas Flow via optional Mass Flow Controllers • Overlay or Sparger aeration (L-sparger or porous sparger) • 5 Complete bioreactor systems on 1m bench space • Lipsealed stirrer for up to 2000 RPM mixing • Operation via web browser, iPhone, iPod and iPad • Height adjustable impellers (Rushton or Marine impellers) • Up to 32 parallel my-Controllers of processes • Software for parallel cultivations and data processing A STEP AHEAD www.applikon-biotechnology.com 10 | August 2013 | GENengnews.com | Genetic Engineering & Biotechnology News Judy M. Mohr, Ph.D. (jmohr@mwe.com), is a partner in the law frm of McDermott Will & Emery. Web: www.mwe.com. gram or policy. Often, a company relies on a nondisclosure provision or a confdentiality clause in its employee agreement or in confdentiality agreements to create a duty of confdentiality with the employee or third party for protection of its trade secrets. This article discusses how a trade secret is different from confdential information and identifes active steps a company should take to implement a trade secret program so that it can enjoy the benefts of state and federal laws if a trade secret is misappropriated. Factors to consider in deciding whether to apply for patent protection of an idea or to maintain the idea as part of a trade secret program are also discussed. Let's frst consider how a trade secret differs from confdential information. Both, of course, encompass a company's business, technical, and commercial information that is generally not known by others outside the company. Trade secrets, however, are a subset of confdential information, and not all confdential information qualifes as such. Trade secrets are limited to that confdential information that affords a company a demonstrable competitive or economic advantage and is subject to efforts that are reasonable under the circumstances to maintain its secrecy. An example of confdential information that may not qualify for trade secret protection is that a company uses a certain standard written test to vet candidates for employment. While it may be confdential that the company routinely uses this test to screen candidates, the test itself is not confdential information and every candidate who takes the test for potential employment results in an ever increasing pool of persons who possess the information nonconfdentially. Moreover, it may be hard to connect use of the test to select employees with a competitive or economic advantage it provides to the company. Confdential information that qualifes for trade secret status potentially enjoys the beneft of legal protections beyond that provided for confdential information. For this reason, a company is wise to implement internal steps to ensure its confdential information that qualifes as a trade secret will be viewed as such by a court and awarded full legal protection. What are the internal steps that should be taken? Implementation of internal steps to ensure legal protection of confdential information as a trade secret begins with a threshold inquiry to identify that information which derives "independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons" to whom it might be valuable. This can be done

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