The Intellectual Property Strategist
John Lanham and Nishi Tavernier authored an article for The Intellectual Property Strategist discussing the Court of Appeals for the Ninth Circuit’s decision in Citcon USA, LLC v. RiverPay Inc., affirming a district court’s denial of an injunction following a finding of trade secret misappropriation. But while the opinion is designated as unpublished – and therefore not precedential – the panel’s reasoning sheds light on an important issue in trade secret remedies.
“The Citcon decision aligns with the approach taken by several other federal appellate courts that have considered the issue following the eBay and Winter decisions,” the authors wrote. “For example, in two precedential opinions, the Tenth Circuit concluded that neither the Colorado Uniform Trade Secrets Act nor the federal Defend Trade Secrets Act permits a presumption of irreparable harm. The Second Circuit has similarly rejected an automatic presumption of irreparable harm, although observing that a rebuttable presumption of harm might be warranted in certain circumstances. The Sixth Circuit too has been critical of presuming harm, particularly in the presence of a damages award for misappropriation. Finally, the Seventh Circuit recently observed that, although its older decisions did recognize a presumption of irreparable harm in trade secrets cases, that rule did not survive post-eBay.”
They added: “Even without binding lower courts or future appellate panels, the Citcon decision provides yet more reason to think that the Ninth Circuit is unlikely to radically depart from modern jurisprudence on equitable relief, or from the approaches adopted by other appellate courts since eBay and Winter.”
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