© 2014 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
(January 21) – A jury in East Texas awarded a Texas neurosurgeon $4 million in damages when it determined a medical device company misappropriated his trade secret involving a product design for a surgical device.
The trial, which took place in the Marshall Division of the U.S. District Court for the Eastern District of Texas, hit home for Akin Gump Strauss Hauer & Feld intellectual property partners Chad Everingham and Steve Zager, who represented plaintiff Dr. Sabatino Bianco.
Everingham got to litigate his first trial since returning to private practice in his very own courtroom from when he was a judge in the Eastern District. And Zager got to celebrate his second jury trial victory in the Eastern District in the span of three months.
“It was a hard fought case and it was very close,” said Zager, the lead Akin Gump lawyer on the case. “I couldn’t have predicted the result until the verdict came back.”
The dispute dates back to 2007, when Dr. Bianco disclosed an idea and product design to Pennsylvania-based Globus Medical, Inc., a medical device company that focuses on the design, development and commercialization of products that promote healing patients with spine disorders.
Bianco disclosed his expandable intervertebral fusion device product design after he and Globus entered a confidentiality agreement that said Globus would not use those ideas and designs for its own purposes or disclose them to the public without receiving permission from Bianco, court documents said.
Globus informed Bianco in late 2009 or early 2010 that the company was not interested in developing or commercializing his idea or design, but Bianco claimed that Globus used his trade secrets and confidential information to develop and obtain patents on its own intervertebral fusion device products throughout the following years without giving Bianco any credit or compensation.
Globus denied Bianco’s allegations. The company disputed that Bianco’s disclosed information was not legally a trade secret, but even if it was, Globus claimed it did not commit any acts that would constitute misappropriation of such information.
Houston Duane Morris partner Thomas Sankey, who served as Globus’ lead counsel, could not be reached for comment.
The jury ultimately decided that Bianco deserved $4,295,760 in past damages. Zager said the case still has some pending matters in the court, including future damages that will also be awarded to Bianco as well as a claim for correction of inventorship on three patents.
Common to most IP litigation, Zager said the biggest challenge of this case was presenting it to the jury in a digestible and interesting way. He said luckily it was easier than software-related cases, when “you’re talking about ones and zeroes” the whole time.
Zager said another challenge was arguing against Sankey, who Zager described as “a terrific lawyer and a good buddy.”
Other Akin Gump attorneys involved in the case included partners Michael Simons and David Stein and counsel Ifti Ahmed.
Federal Circuit Judge William Bryson presided over the case by special assignment.
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