Trade Secrets vs. Patents: The New Frontier in Life Sciences Intellectual Property

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The Defend Trade Secrets Act (DTSA), enacted on May 11, 2016, introduced a federal civil cause of action for trade secret misappropriation, broadening the definition of trade secrets and offering potential seizure of property, injunctive relief, double damages, and a whistleblower safe harbor. This has given companies an additional tool to protect their intellectual property rights and easier access to federal district courts. However, the rise in trade secret claims in the life sciences is not solely due to the DTSA. Court decisions over the past decade have weakened patent claims in the life sciences, leading to an increase in trade secret cases. Many life sciences companies now prefer to keep their R&D data and diagnostic information as trade secrets, rather than risk their patents being declared ineligible or unenforceable. This trend is particularly evident with data-driven innovations, where trade secrets often provide better protection than patents.

In a recent article over at IAM titled Trade Secret Litigation Soars in the Life Sciences Industry, authors Tom Wintner , Nick Armington and Christina Scott (October, 02 2023) have some insight into this new frontier. Please enjoy the reprint shared here with permission. (Thank you, IAM!)

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