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By James DeGiulio –
The Leahy-Smith America Invents Act changed the law on prior user rights (“PUR”) in the United States, providing protection for inventors’ trade secrets and protection against infringement liability from a later granted patent. This change in the law brings the U.S. closer to harmonization with many other countries with these rights, including Canada and Japan. The strengthening of prior user rights under the AIA requires a reconsideration of trade secret protection and PUR as an alternative to patent protection, which is what occurred in Tuesday’s session entitled “A new IP option to secure FTO for internally-used technology in biotechnology.” Moderators Thomas Kelly (Monsanto) and R. Mark Halligan (Nixon Peabody) introduced the session and the panel, which comprised Dr. Andrew Torrance (University of Kansas and MIT), Mary Ann Dillahunty (Oncolytics), Brian Barrett (Eli Lilly), and Jason Duncan (EMD Serono).
PUR under the statute requires, among other factors, secret commercial use for more than one year, thus establishing trade secret as a key component of PUR. Mr. Duncan began by presenting the challenges of trade secrets in the pharmaceutical industry, which were echoed by the other panelists throughout the session. Protection over trade secret information is fragile by nature, as it flows from keeping its secrecy, and particularity and specificity must be shown in litigation to avoid forfeiture of rights. In the internet age, this secrecy is most threatened by data mobility and employee mobility. Since
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