In an eagerly anticipated trade secret case, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s grant of summary judgment to the defendant and agreed the plaintiff, a doctor, "failed to proffer sufficient evidence of similarity between his trade secret and [defendant's device] to create a genuine issue of material fact." Stratienko v. Cordis Corp., Case No. 04-6349, (6th Cir. Nov.18, 2005) (Cole, J.).

Dr. Stratienko, a physician, created a modified catheter device on which he subsequently filed a patent application for a "sheath catheter." The crux of Dr. Stratienko's design was the unitary combination of the sheath and the catheter, which required a smaller puncture for entry into the body. Catheters are used by interventional cardiologists as a mechanism to gain access to blood vessels.

Dr. Stratienko contacted Cordis to introduce his development, sending a letter and nondisclosure agreement regarding his then patent-pending catheter design. The agreement was executed in November 1999. In January 2000, Cordis advised Dr. Stratienko that it was not interested in his proposal. By mid-February, Cordis returned to Dr. Stratienko all documents relating to his catheter design. A few months later Cordis submitted an application to the U.S. Food and Drug Administration for a combined sheath and guide catheter, and approval was granted the same month. Believing that Cordis’ catheter was the result of the intellectual property he shared with Cordis, Dr. Stratienko filed suit alleging misappropriation of trade secrets, wrongful benefit, conversion and breach of contract. Cordis moved for summary judgment on all of Dr. Stratienko’s claims based on testimony that those receiving the information did not share it with anyone else (including the designers of the Cordis device). Despite expert testimony that Dr. Stratienko’s proposal "shared all the ‘salient features’ of the Cordis’ catheter," the district court granted Cordis summary judgment, reasoning that "because this circuit requires direct evidence of use in trade-secret cases and because Dr. Stratienko offered only circumstantial evidence of use, Dr. Stratienko was unable to demonstrate that Cordis used his idea." Dr. Stratienko appealed.

Dr. Stratienko challenged the district court’s reliance on self-interested declarations of Cordis employees, the court’s finding that circumstantial evidence can never create a genuine issue of material fact in trade-secret cases, and the court’s determination that the Tennessee tort of conversion does not extend to trade secrets. The appellate court, contrary to the district court, found that courts may consider circumstantial evidence of access and similarity to imply use of a trade secret. Notwithstanding this determination, the appellate court found Dr. Stratienko’s evidence lacking because he never identified the innovative aspects of his design that were allegedly misappropriated: "[i]dentifying the secret that provides Dr. Stratienko with an advantage in the market is necessary for determining whether the pertinent similarity implies that Cordis used his secret. The analysis of similarity evaluates only relevant, innovative features, not all possible congruence. Without evidence of the advantage of Dr. Stratienko’s device over prior art, there is not a sufficient basis for a reasonable jury to make the circumstantial inference of use."

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