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.

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Photo of Alyson Tocicki Alyson Tocicki

Alyson Tocicki is an associate in the Litigation Department and a member of the Trials Practice Group. Alyson handles high-profile and complex litigation matters around the country, with a particular emphasis on product liability, false advertising, and intellectual property disputes.

Alyson has experience…

Alyson Tocicki is an associate in the Litigation Department and a member of the Trials Practice Group. Alyson handles high-profile and complex litigation matters around the country, with a particular emphasis on product liability, false advertising, and intellectual property disputes.

Alyson has experience representing clients at all stages of litigation, including: filing initial pleadings; coordinating discovery; briefing and arguing motions; assisting with key fact and expert witness depositions; writing jury addresses; drafting direct and cross examinations; and preparing witnesses for trial. She regularly represents Fortune 500 companies in the media and entertainment, consumer products, and pharmaceutical industries, as well as professional sports leagues and teams. Alyson leverages her experience to provide creative solutions and to manage her cases with an eye towards trial.

In addition, Alyson devotes significant time to pro bono matters, having been recognized at Proskauer’s 2023 Golden Gavel Awards for her substantial contributions to the Firm’s pro bono efforts. She also serves as a member of the Firm’s Associate Council and was selected to be a Protégée for Proskauer’s Women’s Sponsorship Program, an initiative for high-performing, mid-level lawyers that champions future leaders.

Prior to joining Proskauer, Alyson earned her J.D. from the UCLA School of Law, where she served as a Managing Editor of the UCLA Law Review and President of the Student Bar Association. While in law school, she also earned multiple Masin Family Academic Excellence Awards, advised first-year students on legal research and writing, and worked as a judicial extern for the Honorable Robert N. Kwan in the United States Bankruptcy Court for the Central District of California.

Photo of Baldassare Vinti Baldassare Vinti

Baldassare (“Baldo”) Vinti heads Proskauer’s Intellectual Property Litigation Group.

Baldo’s practice focuses on litigating patent, false advertising, trade secret, life sciences, trademark and contractual matters in federal and state courts and before the International Trade Commission. He is a seasoned trial attorney responsible…

Baldassare (“Baldo”) Vinti heads Proskauer’s Intellectual Property Litigation Group.

Baldo’s practice focuses on litigating patent, false advertising, trade secret, life sciences, trademark and contractual matters in federal and state courts and before the International Trade Commission. He is a seasoned trial attorney responsible for all aspects of litigation, including Markman hearings, appeals before the Federal Circuit, case preparation and strategy, depositions, motion practice, and settlement negotiations. He has represented clients in high-stakes matters involving a broad range of technologies, including medical devices, diagnostics, immunoassays, prosthetics, pharmaceuticals, dental implants, electronic medical records systems, encryption technology, wound dressings, digital video compression, electronic book delivery and security systems, mobile media technologies, navigation and location-based services, bandwidth management, bar code scanning, lasers , and other technologies. Baldo has represented numerous major corporations, including Arkema S.A., British Telecommunications PLC, Church & Dwight Co., Inc., Henry Schein, Inc., Maidenform Brands Inc., Mitsubishi Electric Corp., Ossur North America Inc., Panasonic Corp., Sony Corp., Welch Foods, Inc., and Zenith Electronics LLC.

In addition, Baldo regularly handles transactional work, including intellectual property due diligence, licensing, intellectual property structural transactions, patentability studies, infringement/non-infringement opinions, and client counseling in intellectual property matters.

Baldo is an author and frequent commentator on patent issues pertaining to medical devices and a host of other intellectual property topics, and has been quoted in the National Law Journal, Bloomberg BNA, Law360, Westlaw Journal and Inside Counsel magazine. He is also a regular contributor of articles published in Medical Product Outsourcing magazine that deal with the medical device industry.

Baldo served as a judicial intern for Hon. John E. Sprizzo of the United States District Court for the Southern District of New York and for Hon. Charles A. LaTorella of the New York Supreme Court.