Welcome to the October edition of Debevoise’s Trade Secrets Spotlight, our monthly newsletter highlighting significant developments in trade secret law. This month, we offer a special edition: in addition to the regular programming of three important decisions in the world of civil litigation, this edition also highlights criminal trade secrets enforcement as an area of increasing priority to the Department of Justice. Please contact any member of our trade secrets team with questions.

DEVELOPMENTS IN CIVIL LITIGATION

1. Insulet Corp. v. EOFlow Co.—Federal Circuit denies rehearing en banc and a stay of its mandate following reversal of DTSA judgment.

On October 19, 2026, the Federal Circuit denied panel and en banc rehearing of its decision holding Insulet’s trade secret misappropriation claim time-barred under the Defend Trade Secrets Act (“DTSA”). Three days later, the court denied Insulet’s motion to stay the mandate and directed that the mandate “issue forthwith.”

The dispute arose from allegations that EOFlow used information supplied by former Insulet employees to develop its competing wearable insulin pump, the EOPatch 2. Insulet, which manufactures the Omnipod insulin pump, sued in August 2023. A jury found misappropriation of four trade secrets and awarded approximately $452 million in compensatory and exemplary damages. The district court reduced that award to $59.4 million to account for overlapping injunctive relief and entered a permanent injunction restricting EOFlow’s use of the trade secrets and commercialization of products developed using them.

The Federal Circuit reversed on May 28, concluding that Insulet knew or should have known enough facts to plead misappropriation more than three years before filing suit. Without resolving whether the DTSA incorporates an inquiry-notice or discovery standard, the majority held that knowledge of access to trade secrets and substantial similarity between competing products could suffice; detailed proof of misappropriation was unnecessary. The October orders left that reversal undisturbed and directed immediate issuance of the mandate rather than postponing it at Insulet’s request.

Most notably, the court refused to grant Insulet’s request for a stay of the mandate, which would have kept the judgment—including the injunction against EOFlow’s EOPatch 2—in effect while Insulet seeks Supreme Court review. For defendants that have successfully overturned an adverse trade secret judgment, denial of a mandate stay can accelerate relief from substantial damages and business restrictions. For plaintiffs, it is a reminder that an injunction won at trial may not survive while appellate review is pending.

2. Trinseo Europe GmbH v. Kellogg Brown & Root, LLC—Supreme Court declines review of Fifth Circuit’s trade secret damages apportionment ruling.

Trinseo sued engineer Stephen Harper, his consulting companies, and Kellogg Brown & Root, alleging that they misappropriated ten trade secrets relating to Trinseo’s polycarbonate manufacturing technology. At trial, Trinseo’s damages expert assumed that all ten alleged trade secrets had been misappropriated and did not separately value individual secrets or give the jury a way to value a smaller subset. Trinseo sought $130 million in damages in total. The jury ultimately found that only four of the ten asserted secrets qualified as trade secrets and had been misappropriated but nevertheless awarded more than $75 million in reasonable-royalty and unjust-enrichment damages—almost 60% of the amount sought by Trinseo. The district court vacated the award.

The Fifth Circuit affirmed in January, holding that trade secret damages “must reflect the value attributable to the information or technology that is misappropriated by the defendant.” Where a plaintiff asserts multiple trade secrets, the jury therefore must have “a reasonable basis” to award damages attributable only to the secrets it actually finds misappropriated. The court emphasized that this does not require a rigid trade-secret-by-trade-secret valuation: a plaintiff may value individual secrets or groups of secrets or provide another methodology that allows the jury to calculate damages for fewer than all asserted secrets. Trinseo’s “all-or-nothing approach” did not satisfy any of those methods.

On October 5, the Supreme Court denied Trinseo’s petition for certiorari, leaving the Fifth Circuit’s ruling intact.

The case adds to the split among courts on trade secret damages apportionment.

3. Azurity Pharmaceuticals, Inc. v. Gitomer—Eastern District of Pennsylvania holds employee’s pre-departure transfer of trade secrets to a personal email account supports preliminary injunction but not forensic imaging.

Azurity sued former employee Michael Gitomer and his new employer, competitor Shorla Oncology, after discovering that Gitomer, during his final month at Azurity, sent 23 emails containing Azurity’s business and financial information to his personal email account in violation of Azurity’s company policy. Azurity also alleged that two other former employees had similarly transferred company information before joining Shorla. Azurity moved for a preliminary injunction against both Gitomer and Shorla that would bar them from using or disclosing its trade secrets, require them to return the information, and permit forensic examination of defendants’ devices and accounts at their own expense.

The Eastern District of Pennsylvania granted the preliminary injunction. The court found that Azurity was likely to succeed on its DTSA and Pennsylvania trade secret claims because, although Gitomer admitted sending the materials and denied using or disclosing them, “[k]nowingly disobeying an employer’s confidentiality policies by emailing confidential materials and trade secrets to one’s personal email account may constitute misappropriation of trade secrets.” The timing and frequency of Gitomer’s emails, his failure to offer a “legitimate reason” for sending those emails, and similar conduct by other former Azurity employees supported the court’s finding of likely misappropriation and irreparable harm.

However, the court denied Azurity’s request to forensically examine defendants’ devices and accounts at their expense, finding that relief “more burdensome than what is necessary” to prevent irreparable harm and preserve the status quo.

The decision is an instance where suspicious pre-departure activity can support preliminary injunctive relief even without proof that the information was subsequently used by the future employer.

DEVELOPMENTS IN CRIMINAL ENFORCEMENT

1. The United States sanctions companies connected to theft of Google AI trade secrets.

In January this year, a federal jury convicted Linwei Ding of seven counts of trade secret theft after finding that he allegedly stole more than 2,000 pages of confidential information containing Google’s AI trade secrets while developing his own China-based AI company. Although the district court later acquitted Ding on separate economic-espionage counts, his trade secret convictions remain intact, and he was sentenced in September to nearly 12 months in prison. The State Department sanctioned five China-based entities in connection with Ding’s trade secret misappropriation, including the AI company he founded, the venture capital firm that provided funding to his AI company and three related entities associated with the venture capital firm. This action demonstrates the ongoing expansion of government interest in trade secret misappropriation.

2. United States v. Ghandali—Three Bay Area engineers indicted for stealing trade secrets from major tech companies. 

Three Google engineers, Samaneh Ghandali, Mohammadjavad Khosravi, and Soroor Ghandali, were indicted in the Northern District of California in February for allegedly stealing trade secrets related to processor security, cryptography and other technologies from multiple large tech companies. The government alleges that all three defendants exfiltrated trade secret information from their employers—despite having signed confidentiality agreements and being aware that the information was confidential—by sending files via messaging apps and by taking photos on personal cell phones. This information was then allegedly accessed by the defendants, all of whom are of Iranian origin, while they were visiting Iran. This case, which is still in the early stages, is illustrative of the types of trade secret thefts that receive special attention from the Department of Justice: those involving defendants associated with unfriendly governments and involving sensitive technology (e.g., the cryptography and processor information at issue here).

3. United States v. Chih-Yee Jen—Engineer convicted for trade secret theft in aid of an also-indicted China-based corporation.

This publication is for general information purposes only. It is not intended to provide, nor is it to be used as, a substitute for legal advice. In some jurisdictions it may be considered attorney advertising.