By request, packed full of highly relevant findings from 2014 (Big Vision v. DuPont).
Short version: You must describe your trade secret with “particularity” when you first disclose it as well as during litigation.
The Big Vision company wanted to develop and test recyclable banners, and contacted DuPont and others to evaluate their ideas. Big Vision did not initially have a written NDA with DuPont or others, but maintains that they explained the confidential nature of the information during discussions. In at least one case, Big Vision communicated their formulation to a manufacturer without any efforts to ensure confidentiality.
Big Vision also filed a patent application disclosing the layered design, manufacturing method, thicknesses, and finishing treatments. Big Vision requested early publication of the patent application.
Meanwhile , DuPont continued development of its own product using DuPont materials. DuPont released products in Europe, but discontinued them due to poor sales, well below forecasted amounts.
Big Vision sued after DuPont launched their own competing product, alleging breach of contract, misappropriation of trade secrets, and unfair competition.
During the litigation and in discovery, Big Vision’s definition of their trade secrets kept changing and was rather vague. The court found that Big Vision did not describe its trade secrets with “particularity”, both during litigation as well as during disclosure to DuPont.
Additionally, Big Vision did not designate anything as confidential in dealing with DuPont, even though there were two different NDAs eventually in place.
Furthermore, the court found that the information was not secret, as Big Vision did not take reasonable steps to keep it so – they disclosed to over 16 different third parties and published it in a patent application.
Also, DuPont did not do anything improper or fraudulent to discover the alleged trade secret.
DuPont’s motion for summary judgment was granted.
Plus, bonus points to the court for referencing “whack-a-mole” in describing DuPont’s having to deal with Big Vision’s shifting trade secret claims.