UnIntellectual Property (UnIP): Trade Secret for Images in User Interface

The United States District Court for the Southern District of Texas has granted Plaintiff’s motion for preliminary injunction with respect to a claim for trade secret misappropriation.  Plaintiff Mobius is a developer of software used in the field of radiation oncology, with its most commercially successful software product known as DoseLab.  DoseLab provides quality assurance (QA) for all types of radiation oncology linear accelerators used in the treatment and imaging of cancer patients so as to enable those administering radiation treatments to ensure that the machine is operating properly and that the correct dosage is being delivered to the patient.  The industry standards for the QA of medical linear accelerators are outlined in a report published by the American Association of Physicists in Medicine known as the Task Group 142 Report (“TG–142 Report”).  TG-142 Report is the de facto standard for medical linear accelerator QA.  Plaintiff Mobius entered into an exclusive software distribution agreement with Defendant Sun Nuclear, a privately held corporation and leader in the development manufacture, and sale of radiation measurement instrumentation and software.  On September 10, 2013, Sun Nuclear released its own TG–142 solution software product.  This lawsuit followed.

As is typical in software trade secret disputes, Plaintiff claims that Defendant has misappropriated its formulas, algorithms, reference images, example images, and configurations files. To illustrate how these trade secrets were misappropriated, Mobius presented testimony and evidence on the following features of DoseLab which it says that ImagePro copied: kV/MV imaging QA, multi-leaf collimator QA, MLC strip test, cone beam CT imaging, and starshot imaging. Sun Nuclear claims that many of these features are outlined in the TG–142 Report, “and their display is common to all similar software products that include TG–142 functionality.”  In addition, Sun Nuclear points out that some of these features are merely “aesthetic elements and data displayed as part of DoseLab’s user interface.” Since a program’s user interface is publically visible, it cannot possibly constitute a trade secret, according to Sun Nuclear.  Thus, again, according to Sun Nuclear, both the TG–142 Report and other third-party products which pre-date DoseLab provide these same features.

The Court, did not apply the new Texas Trade Secrets Act (TUTSA) but instead analyzed the six fact-intensive common law factors: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of the measures taken to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” Id. (citing In re Bass, 113 S.W.3d 735, 739 (Tex.2003)).  It did so recognizing that “Mobius has stated repeatedly that it does not claim any trade secret protection in the user interface of DoseLab, but that DoseLab’s “algorithms, visualization techniques, example files, configurations and parameters for its kV/MV imaging functionality, MLC log functionality, MLC strip test functionality, cone beam CT functionality, flatness and symmetry functionality, and starshot imaging” qualify as trade secrets.”  Tellingly, it did not find that the images in the user interface qualified as a trade secret, but was able to distinguish that from the algorithm and formulas, which it held could qualify as a trade secret.  Ultimately, the Court held that the evidence “clearly reveals that Mobius’s proprietary information is entitled to trade secret protection until a determination on the merits.”

So, although the images in the software user interface may not be a trade secret, the algorithm and formulas may be, and were deemed sufficient for granting a preliminary injunction.  Having litigated software trade secret cases, these are always fact intensive matters.  I do not disagree with the order.  Since I will soon be practicing primarily in Texas (Austin, Texas to be exact), I am happy to see quality analysis in what are always difficult cases.  My gut tells me the fact that there was an underlying agreement between the parties did not hurt Plaintiff’s case at this early stage, even if the alleged trade secrets may ultimately be deemed not to be trade secrets and instead public domain.  Perhaps a compilation trade secret position will be the Plaintiff’s strongest position in the end, regardless???

Mobius Med. Sys., LP v. Sun Nuclear Corp., 4:13-CV-3182, 2013 WL 6498981 (S.D. Tex. Dec. 10, 2013).

 

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