Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The technology at issue relates to Retin-A® tretinoin cream products used in the treatment of acne and a generic Efudex® product used in the treatment of actinic keratosis.  Plaintiffs disclosed confidential information to defendants subject to a confidentiality agreement and an evaluation agreement in connection with exploring business opportunities.  Defendants filed a Citizen’s Petition seeking to block generic Efudex® products.  Plaintiffs allege breach of contract and the covenant of good faith and fair dealing, trade secret misappropriation, unjust enrichment and negligence.  Defendants move to dismiss asserting the complaint is fatally speculative and that the Citizen’s Petition, which was privileged activity, was not the proximate cause of any harm.  The Court finds Plaintiffs’ complaint to be well plead.  Furthermore, the causal chain is only broken if the intervening cause is unforeseeable and the Court finds that the delay of Plaintiffs’ ANDA as a result of the filing of the Citizen Petition was foreseeable.  Finally, the use of trade secrets in violation of a confidentiality agreement or in breach of a fiduciary duty is not protected.

Defendants move to dismiss plaintiff’s claim of misappropriation of trade secrets (related to certain hospital management software) as being time barred pursuant to 6 Del. C. §2006.  Plaintiff concedes that his unjust enrichment claim is preempted by the Delaware Uniform Trade Secret Act.  Given the substantial press coverage of defendant’s public launch of the software and the filing for patent protection, plaintiff knew or should have known about the alleged misappropriation at the time of the launch.  Therefore the claim is time barred and must be dismissed.