Unlike other forms of intellectual property, trade secrets are rarely clearly defined anywhere before a lawsuit begins, making it critical for counsel for defendants to know what exactly was allegedly stolen. But at such an early stage in the litigation, even overbroad or ambiguous claims of trade secrets require motions seeking clarity, not pre-discovery victory, intellectual property attorney James Pooley of James Pooley PLC said.

“My impression was the real lesson of the case is ‘Don’t try to challenge the sufficiency of a trade secrets identification with an early motion for summary judgment,’” said Pooley, who focuses on trade secrets cases and practices in California, where the case originated.

ETC’s summary judgment motion “put all its marbles on a risky maneuver, when it could have made a lower risk procedural attack,” he said.

Pooley said he could see how one could worry the decision takes the decision on what constituted a viable trade secret claim out of the hands of judges and hands it to a jury. But that reading takes the decision out of its context of a pre-discovery summary judgment motion.

“I think that’s a superficial and strained reading,” Pooley said. “A fair reading is that judges decide whether you’ve rung the bell enough to go forward, juries decide whether you’ve proved the case.”