Bloomberg Law author, Kyle Jahner, recently published the article, “Shrimp Genetics Case Dips into Uncharted Trade Secret Realm.” The article explores the recent jury verdict Archer partners Brian Gargano and James Ou obtained for their client TB Foods USA in which the jury found that genetic materials of a living organism qualified as a trade secret under the Defend Trade Secrets Act and Florida Uniform Trade Secret Act. Few court cases have dealt with and applied trade secrets law to living things, and as such, the jury’s finding has added more clarity to this little-explored area of intellectual property law.
Brian and James were interviewed by Jahner due to their expertise and close involvement in the case. Brian, who served as lead counsel for Plaintiff TB Food, is directly quoted throughout the article.
When addressing whether living things contain protectable information, Brian said, “Of course. It was always that way” – Defendants’ argued unsuccessfully to the Court and the jury otherwise. Brian emphasized that you cannot “just take one or two shrimp,” but need a “diverse set of families” to make use of the genetic advantage Primo bred into the shrimp. Brian explained that the Defendants primary argument which both the Court and the jury rejected was “all hell’s going to break loose,” with horse breeders and other entities able to claim living things as trade secrets.
Brian was also posed the question, ‘How can we allow intellectual property on life?’ He answered by explaining, “You’re not saying, ‘I have dominion over this life.’ You’re saying, ‘I have dominion over a particular set of instructions.” In referencing as to what happens when the genetic information becomes readily discernable he said, “Once the cat’s out of the bag, you don’t have ownership of it anymore,” in regard to trade secrets.
To view the article, click here.