Shrimp Genetics Case Dips Into Uncharted Trade Secret Realm

August 19, 2022

Bloomberg Law

Jim Pooley was quoted in an edition of Bloomberg Law on August 19, 2022. His comments are presented below, and you can read the full text of the article by clicking the "Read Article" button.

Trade secrets are defined as “information” not generally known that an entity makes “reasonable efforts” to keep secret. The owner also must derive economic value from that secrecy. The secrets are misappropriated if they’re acquired by someone else through improper means.

Precedent applying those principles to living things remains slim, but life-based secrecy is growing.

“We’re adapting to the fact that there’s a lot of business activity now around lifeforms,” trade secrets attorney James Pooley said.


Pooley said much of the shrimp case’s reasoning stems from Pioneer Hi-Bred’s dicta and its subsequent “mischaracterization” as a holding.

He predicted “it will take some time” before an appeals court tackles the question head on, but he called the reasoning in cases involving organisms-as-information “sort of sloppy” because they equate intangible information with tangible objects; a computer chip isn’t a trade secret, the information on it is, he said. He doesn’t think the cases are necessarily reaching the wrong results, just relying on faulty logic.

“It can matter in the law because there are certain things the law can do with tangibles that it can’t do with intangibles,” such as have them seized or destroyed, Pooley said. “If you’re trying to control the genetic information in your hybrid seed corn, you have to control the corn itself” so that the information doesn’t become accessible.


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