Distinguishing Trade Secrets From What Is Publicly Known

One of the challenges a trade secret holder needs to address in a trade secret litigation is to distinguish its trade secrets from what is publicly known. This can be particularly challenging when the trade secrets are more business-oriented rather than technological. But as this APT v. MarketDial case shows, if a trade secret holder doesn't distinguish its trade secrets from what is known in the public domain, the case could get tossed out, and attorney's fees could be awarded to the other side. Defining the trade secrets and distinguishing them from publicly known information are key aspects of a trade secret holder's case.

The legal fight that found itself before the Federal Circuit started in 2018 when APT — which was bought by MasterCard for $600 million in 2015 — slapped the MarketDial co-founders with a lawsuit accusing them of poaching its business strategies while they were employed as consultants, as well as infringing APT's patent for business analytics software.

The patent infringement claims were tossed in 2020, and the rest of the suit went the same way in 2024 when a Utah federal judge said APT hadn't done a good enough job identifying what its trade secrets were. In March, she ordered APT to pay $2.8 million worth of MarketDial's legal fees for "aggressively" litigating an "objectively specious" trade secrets suit.

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