Welcome to WilmerHale’s bulletin on recent trade secret case law and relevant news items. We’ve affectionately nicknamed it “Readily Ascertainable” because, unlike a trade secret, it should be easy to figure out. If you have any questions about these cases or the legal issues they implicate, our trade secret experts would be delighted to answer them.
For this installment of Readily Ascertainable, we cover an appellate decision addressing when patent inventorship counterclaims are sufficiently related to trade secret claims to impact the Federal Circuit’s jurisdiction, as well as a number of district court rulings on topics ranging from the pleading standard governing how specifically a plaintiff must identify its alleged trade secrets in federal court to the circumstances under which it is appropriate to award nominal damages for trade secret misappropriation.
August 2026
Zunum Aero, Inc. v. Boeing Co., – F.4th – 2026 WL 2509406 (9th Cir. Aug. 26, 2026)
In a precedential order denying panel rehearing, the Ninth Circuit concludes that the existence of patent inventorship counterclaims did not give Federal Circuit jurisdiction over related trade secret claims.
Plaintiff (a startup aerospace technology company) sued defendant (a larger aerospace company) under Washington law, alleging—among other things—that defendant had improperly used plaintiff’s confidential information to build a competing hybrid-electric aircraft. Defendant filed counterclaims, seeking a declaration that its employees were the sole inventors of two patents related to the information plaintiff claimed as trade secrets. A jury found that defendant misappropriated multiple alleged trade secrets and awarded damages. The district court subsequently granted defendant judgment as a matter of law and conditionally granted a new trial. However, in 2025, a Ninth Circuit panel reversed that ruling in an unpublished decision.
Defendant then filed a petition for rehearing, arguing that the Ninth Circuit lacked appellate jurisdiction because the Federal Circuit had exclusive appellate jurisdiction over the inventorship counterclaims under 28 U.S.C. § 1295(a)(1), which encompasses “any civil action in which a party has asserted a compulsory counterclaim arising under[] any Act of Congress relating to patents.”
The panel denied the petition for rehearing, holding that defendant’s counterclaims were permissive rather than mandatory under Ninth Circuit law. Among other things, the panel majority stated that the factual overlap between plaintiff’s trade secret claims and defendant’s patent inventorship claim was “insufficient to establish that the ‘same operative facts serve as the basis of both claims,’” both because defendant’s counterclaims arose from a comparatively small part of plaintiff’s case (2 out of 576 paragraphs in the complaint) and because it was possible for both plaintiff and defendant to prevail on their respective claims. For similar reasons, the panel also held that the counterclaims were permissive under Federal Circuit law, as “the degree of overlap between ‘what [plaintiff] must establish to prove its [trade secret misappropriation] claim and what [defendant] must establish to prove its [patent inventorship] counterclaim[s]’ is low.”
Finally, the panel rejected defendant’s argument that the district court necessarily lacked supplemental jurisdiction over the state law trade secret claims because defendant’s counterclaims were permissive. The panel concluded that the “‘common nucleus of operative fact’ test for supplemental jurisdiction over state law claims is broader than” the test for compulsory counterclaims, as the former requires only a “loose factual connection” between the claims and counterclaims. The panel stated that the “nucleus” test was satisfied by the fact that the claims and counterclaims were all related to defendant’s “access to and alleged misuse of confidential information regarding [plaintiff’s] hybrid electric aircraft technology.”
Flextronics AP, LLC v. Ricci, 838 F. Supp. 3d 936 (N.D. Cal. 2026)
Northern District of California court concludes that California’s “reasonable particularity” standard does not apply at the pleading stage.
Plaintiff (an electronics manufacturer) sued defendant (its former in-house lawyer) under California law, alleging that defendant misappropriated alleged trade secrets related to plaintiff’s products, strategy, pricing arrangements, and client/customer contacts. Defendant filed a motion to dismiss, arguing—among other things—that plaintiff failed to identify its alleged trade secrets with “reasonable particularity.”
The district court denied the motion to dismiss, reasoning that the particularity requirement imposed by California Civil Procedure Code § 2019.210 is a threshold requirement for taking discovery—not a pleading standard that raises the threshold for stating a claim above that established by Federal Rule of Civil Procedure 8. The district court stated that requiring a plaintiff to “spell out the details of the trade secret” to avoid dismissal would require the plaintiff to “destroy the very thing for which he sought protection by making public the secret itself.” The district court also held that Section 2019.210 is a procedural rule that—if applied at the motion to dismiss stage—would improperly impose a higher pleading standard than the Federal Rules of Civil Procedure. Finally, the court determined that plaintiff adequately identified the alleged trade secrets, stating that allegations setting out trade secrets in “broad, categorical terms” are insufficient standing alone but “become sufficient […] where the complaint alleges that these categories of information are contained within specific documents.”
Applied Systems, Inc. v. PBC Consulting Inc. & Ardent Labs, Inc., d/b/a Comulate, 2026 WL 2559570 (N.D. Ill. Aug. 31, 2026)
Northern District of Illinois court holds that high-level summaries of software algorithms in complaint provided sufficient detail at the pleading stage.
Plaintiff (which sells insurance agency management software) sued defendants (a competitor and a related corporate entity) under federal law, alleging that defendants had improperly accessed plaintiff’s software and used that access to reverse engineer a number of plaintiff’s algorithms. Defendants moved to dismiss, arguing, among other things, that the alleged trade secrets were not described with the requisite particularity and that the complaint failed to plausibly plead misappropriation. The district court denied the motion as it related to trade secret misappropriation.
As to particularity, the court held that federal law requires a plaintiff to plead trade secrets only in “broad strokes” and plaintiff had provided enough detail by explaining what each algorithm does and what triggers each algorithm to run. As to misappropriation, the district court concluded that while reverse engineering is not per se improper, the complaint adequately alleged that defendants’ specific actions were unlawful because they required breaching a contract and misrepresenting why they were seeking the underlying information.
Bankers Life and Casualty Co. v. Am. Senior Benefits, LLC, 2026 WL 2474394 (N.D. Ill. Aug. 24, 2026)
Northern District of Illinois court limits successful trade secret plaintiff to nominal damages after a bench trial.
Plaintiff (an insurance company) sued defendants (a group of its competitors) under Illinois and federal law, alleging that defendants had assisted plaintiff’s former employees in misappropriating lists of plaintiff’s clients and business leads, among other things. The district court held a bench trial and concluded that while one of the defendants was liable for misappropriation and another for breach of contract, plaintiff was entitled to only $2 in nominal damages. The court concluded that plaintiff’s damages model was flawed as a matter of fact, as its damages expert was “thoroughly impeached” at trial, and (in the district court’s view) the expert’s model contained inconsistencies and errors such as counting losses tied to former employees who left plaintiff for companies unrelated to the defendants found liable. The court also concluded that the model was flawed as a matter of law because it treated defendants as responsible for all lost profits resulting from lapsed or terminated policies, regardless of whether the policies had lapsed or been terminated because of the alleged misappropriation.
Neuron Space Corp. v. Blue Cubed, LLC, 2026 WL 2389818 (N.D. Cal. Aug. 17, 2026)
Northern District of California court holds that NDAs are not dispositive of whether plaintiff engaged in reasonable efforts to maintain secrecy or whether defendant engaged in an unauthorized disclosure of alleged trade secrets.
Plaintiff and defendant worked together to develop communications components for satellites, with defendant serving as plaintiff’s subcontractor. Plaintiff sued under (among other theories) federal trade secret law, alleging that defendant improperly disclosed trade secrets related to the components’ design that had been developed while the two parties were working together.
Both sides moved for summary judgment, with defendant arguing, among other things, that plaintiff had failed to take reasonable measures to maintain the secrecy of the alleged trade secrets. The district court concluded that the fact that plaintiff had circulated pitch decks with pictures disclosing one alleged trade secret—without securing NDAs from every recipient—raised a material dispute of fact and that the presence or absence of an NDA was not dispositive. In the district court’s view, the central question was instead whether confidentiality obligations had arisen based on the circumstances and the parties’ implicit business expectations—an issue that the court held should be resolved by a jury.
The district court also rejected defendant’s related argument that its disclosure of an alleged trade secret to a customer was necessarily not misappropriation because the customer had signed an NDA. Again, the district court held that the presence of an NDA was not dispositive and defendant’s argument had to be resolved by a jury.
Route App, Inc. v. OrderProtection.com, Inc., 2026 WL 2475298 (D. Utah Aug. 24, 2026)
District of Utah court holds that pricing, customer data, and software features may remain protectable as trade secrets when related public-facing information does not reveal underlying nonpublic details.
Plaintiff (a company that provides post-sale shipping insurance for merchants) sued defendant (its competitor)—which was founded by plaintiff’s former employees—under Utah and federal law. Among other things, plaintiff alleged that defendant misappropriated trade secrets related to plaintiff’s pricing formulas, the online sellers’ data (e.g., purchasing and pricing data), and plaintiff’s specialized website for merchants. Defendant sought summary judgment on the grounds that (1) the alleged trade secrets were not defined with sufficient particularity; (2) the alleged trade secrets were readily ascertainable; and (3) there was no misappropriation.
The court denied summary judgment. As to sufficient particularity, the court held that plaintiff identified—for example—specific pricing and revenue-sharing methodologies, including variables and calculations, with sufficient detail to distinguish those alleged trade secrets from general industry knowledge. As to whether the alleged trade secrets were readily ascertainable, the court concluded that there was at least a triable issue of fact as to whether each alleged secret included nonpublic information. For example, a reasonable jury could find that the pricing formulas reflected “multiple confidential variables, merchant specific data, and internal calculations”—information not revealed by the fact that a customer could observe the ultimate price quoted to a merchant. As to misappropriation, the court concluded that a reasonable jury could have accepted plaintiff’s view of the facts (based on former employees’ access to the alleged trade secrets and development of a competing product, among other things) and that defendant’s contrary arguments (i.e., that the defendant independently developed its products, relying on general industry knowledge and experience) should be aired at trial.
