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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Legal Affairs by interviewing key scientists and engineers at the company, and compiling a list of information they view as confdential and valuable. This listing of secrets, referred to as a trade secret register, is appended to a written policy that outlines the view of the company on its confdential information and the internal steps implemented to maintain secrecy. Once a company has identifed its trade secrets, it is necessary to subject the secrets to "efforts that are reasonable under the circumstances to maintain 'their' secrecy" in order for a court to protect them as trade secrets. Steps a company can take to satisfy this requirement include: First, informing employees about the policy, register, and consequences of its breach, and requiring each employee to sign an acknowledgement. Second, the company should conduct a yearly or semi-yearly audit of its listing of trade secrets to keep it up to date with changes. Third, access to the trade secrets identifed on the listing is ideally restricted to select personnel who have need to know or use the trade secret in their job performance. Fourth, any physical area where a trade secret is utilized has appropriate signage (e.g., "Restricted Access" or "Confdential") and/or access to the area is restricted to select personnel. These internal steps ensure that a company can satisfy the requirement that the information was subject to efforts that are reasonable under the circumstances to maintain its secrecy. In preparing a trade secret register the question often arises whether to pursue patent protection for an idea or to maintain it as a trade secret. The answer is based on balance of business and legal factors that merit a fuller discussion than can be provided here. A simple guide is to consider if the idea can be easily reverse engineered from the product; if it can be, then a trade secret is of no use to protect the idea. On the other hand, if from inspection of a competitor product on the market it is impossible to know if the idea is present in the product or was utilized to make the product, then a patent has little value. In addition, some ideas do not qualify for patent protection, such as customer lists or business strategies, and so a trade secret is the only option. With a formal trade secret program implemented by a company, the legal protections available to it in the unfortunate event of a trade secret misappropriation include both civil and criminal charges. The Uniform Trade Secrets Act has been adopted in most states, and prohibits the misappropriation of a company's trade secrets and provides a number of potential remedies for actual or threatened misappropriations of trade secrets. This act provides for a civil cause of action for the misappropriation of a trade secret and specifcally empowers a court to issue a preliminary injunction. The damages available to the employer who prevails on a trade secret claim includes the recovery of "reasonable attorney fees" and can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. The Federal Economic Espionage Act criminalizes the theft of trade secrets from an employer. In addition to providing criminal penalties, this act also authorizes the Attorney General to institute a civil action to seek immediate injunctive relief to protect those employers whose trade secrets have been stolen or misappropriated. The Federal Com- puter Fraud and Abuse Act provides for both criminal and civil remedies for its violation. This act prohibits not only the theft of trade secrets from computer-based programs, but also the malicious destruction of computerbased information and systems. A company invests signifcant resources, time, and talent to develop and commercialize its products, and this investment inevitably generates confdential information, some of which can qualify as a trade secret. Like other intellectual property rights, trade secrets can be extremely valuable to a company's growth and overall valuation. Implementing a trade secret program is a simple internal act that can be done to ensure full legal protection of its most valued confdential information. Flow cytometry with vision Introducing FlowSight Capable: Sensitive and flexible for every need Intuitive: Imagery of every cell Affordable: Designed and priced for every lab FlowSight is a compact 12-channel flow cytometer that provides high-end performance and images every cell. FlowSight can accommodate four lasers, an AutoSampler, and a Quantitative Imaging upgrade to suit beginners and experts alike. Despite its incredible capabilities, the FlowSight starts at only $79,000! Two-laser systems from $99,000! See more of the new FlowSight at www.amnis.com Genetic Engineering & Biotechnology News | GENengnews.com | August 2013 | 11

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