UnIntellectual Property (UnIP): Trade Secret for Drug Ingredients and Dosage/Marketing Strategies

Massachusetts is relatively unique in that it has yet to adopt the Uniform Trade Secrets Act.  Instead, a blend of statutory law (Massachusetts Trade Secret Protection Act) and common law define a trade secret and what happens in the event of misappropriation.  This case arises out of a dispute between pharmaceutical companies that promote and offer for sale competing bowel preparation drugs that are administered prior to colonoscopies.  When the General Counsel of Defendant came into possession of certain training materials “sent in from the field” by an unknown source, Plaintiff took this present action claiming that Defendant had misappropriated an undisclosed number of pages of its raining materials and the trade secrets contained therein.

The Court granted Defendant’s motion to dismiss for failure to state a claim, which was based upon Plaintiff’s entire set of training materials.  In doing so, the Court held that the lawsuit cannot proceed because Plaintiff has not identified with adequate specificity any trade secrets in materials that have not been submitted with the pleadings.  Moreover, the items claimed do not amount to a trade secret under Massachusetts law.  In particular, the six pages of material included publicly available information about the drug, such as its ingredients and recommended dosage, all of which is within the public domain.  In addition, while noting that marketing strategies may be protectable as a trade secret, in this case, the differences in price, efficacy and safety was not established to be proprietary to Plaintiff.  Finally, the Court held that “it is implausible that platitudes such as “Cash in on relationships!” are the product of significant effort or investment or are valuable to Braintree’s competitors.”  Thus, no trade secrets existed under law.

I envision a similar result if UTSA was enacted in Massachusetts.  Fortunately for Plaintiff, its other causes of action remain.

Ferring Pharm. Inc. v. Braintree Labs., Inc., CIV.A. 13-12553-NMG, 2014 WL 3850072 (D. Mass. Aug. 4, 2014).


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