Proving access to and use of trade secrets are core elements in a trade secrets misappropriation case.  Recent rulings in a trade secrets action filed by Allergan against its competitor Revance Therapeutics (“Revance”) provide helpful guidance on what is sufficient to plead these elements. There, the court explained what facts are—and are not—sufficient to infer access to and use of trade secrets allegedly misappropriated. The court also explained how examining the similarity of design may help in this analysis. Finally, the court clarified that the ability to reverse engineer alone may not always preclude trade secret protection.  

Plaintiff Allergan, a pharmaceutical company that manufactures and sells botulinum neurotoxin (BoNT) injectable products (under the trade name Botox) and dermal fillers (under the trade name Juvéderm), filed suit against its competitor Revance in May 2023. Allergan alleged that its development of confidential know-how concerning BoNT regulatory, technical, and manufacturing efforts have been critical to Botox’s success. As such, it further alleged that it took significant precautions to ensure the confidentiality of its trade secrets, including implementing written policies and procedures governing its information technologies and limiting access to its trade secrets to certain employees.

Read the full post on Proskauer’s Minding Your Business blog.