This case actually involves a Court’s determination that a baking process may, as a compilation, qualify as a trade secret.  Although it is not the typical UnIP I blog about, I believe it is instructive to trade secret attorneys.

The United States District Court for the District of Oregon denied a plaintiff’s, who manufactures refrigerated food items, attempt at a preliminary injunction that would have enjoined defendant, Bob Evans, from producing and selling baked refrigerated food items.  In doing so, it analyzed whether plaintiff’s “Baked Process,” in which the food items are baked in thermal ovens in microwaveable trays and then sealed immediately, constituted a protectable trade secret under the Oregon Uniform Trade Secrets Act.
Plaintiff had claimed the following were trade secrets:
1. the manner in which the products are pasturized and browned;
2. the organization and timing of the production line;
3. the product packaging;
4. the sealing process;
5. the use of an oven to kill bacteria in food; and
6. the fact that plantiff’s Baked Process creates a shelf life of 40–50 days.
Although the Court denied a preliminary injunction, it did so based upon the lack of evidence of misappropriation.  The Court refused Defendant’s position that the above trade secrets do not qualify under the statute because the information is either publicly known or well-known in the industry.  In fact, the Court stated: “I agree that some components of Reser’s Baked Process were publicly disclosed or generally known to the industry, that does mean the Baked Process itself cannot qualify as a trade secret. As explained in the Kaib’s case, “[t]he text of the statute is clear and unambiguous: a trade secret can be a ‘compilation’ that ‘[d]erives independent economic value … from not being generally known to the public or to other persons who can obtain economic value from its … use.’ “ Kaib’s Roving R.PH. Agency, Inc., 237 Or.App. at 102, 239 P.3d 247. Thus, “[w]hen someone expends considerable time, effort, and expense to compile information, that information in its compiled form can, in some circumstances, meet the statutory definition of a trade secret.” Id.”
Thus, the Court recognized that “while certain elements of the process may be publicly known, together they arguably form a compiled process that is in and of itself valuable if not generally known to the public or the industry. See Buffets, Inc. v. Klinke, 73 F.3d 965, 968 (9th Cir.1996). Thus, to the extent Reser’s argues that its Baked Process, as a whole, is a trade secret, I agree that the Baked Process could qualify as a trade secret under the OUTSA.”
Although the preliminary injunction was denied, having the Court determine that the Baked Process could qualify as a trade secret is a consolation prize for plaintiff.  That said, compilation trade secrets may be more difficult to prove that misappropriation occurred, because as opposed to showing misappropriation of a single thing, misappropriation of the compilation must be established.
Reser’s Fine Foods, Inc. v. Bob Evans Farms, Inc., 3:13-CV-00098 AA, 2013 WL 1900565 (D. Or. May 4, 2013).


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