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Bad Faith Required to Prevent Speech Regarding Potential Patent Infringement

The US Court of Appeals for the Federal Circuit found that a district court abused its discretion in granting a preliminary injunction enjoining a patent holder from making claims of patent infringement without finding that those infringement claims were made in bad faith. The Federal Circuit reversed, vacated and remanded the district court’s decision. Myco Indus., Inc. v. BlephEx, LLC, Case No. 2019-2374 (Fed. Cir. Apr. 3, 2020) (O’Malley, J.). Myco Industries and BlephEx both commercialized products used to treat an ocular disorder. During a 2019 industry trade show, BlephEx’s patent inventor confronted his former business partner, now Myco’s chairman, accusing Myco of infringing on BlephEx’s patents and allegedly threatening patent litigation against Myco’s potential customers. Myco sought a declaratory judgment that it had not infringed on BlephEx’s patent and that the claims of BlephEx’s patent were invalid under 35 USC §§102, 103 and/or 112, and sought...

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Texas Appeals Court Rules Private Communications with Customers Not Protected Free Speech

In a case addressing the applicability of free speech as a defense to trade secret misappropriation, the Court of Appeals for the Fifth District of Texas retracted its previous ruling, holding that communications with customers and suppliers did not involve a matter of public concern and were therefore not an exercise of free speech. Goldberg, et al. v. EMR (USA Holdings) Inc., et al., Case No. 05-18-00261-CV (Tex. App. Jan. 23, 2020) (Myers, J). The case concerns allegations of trade secret misappropriation brought by EMR (USA Holdings) (EMR), against Kenneth Goldberg, his company Geomet Recycling (Geomet), and several Geomet employees who, like Goldberg, formerly worked for EMR. EMR and Geomet are both involved in the business of scrap metal recycling. EMR alleged that Goldberg, Geomet and the former EMR employees (collectively, “Defendants”) violated the Texas Uniform Trade Secrets Act (TUTSA), breached fiduciary duties and tortuously interfered with...

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