Author Micah Fincher is an associate in the firm’s Intellectual Property (IP) section within the Business & Commercial Litigation Practice Group. He also writes for Trade Secret Insider, a legal blog committed to providing timely legal insights on trade secrets, non-competes, computer fraud, and data theft. This post was originally published on tradesecretinsider.com.
In a previous post, we examined T-Mobile’s complaint against Chinese smartphone marker Huawei and its US subsidiary, in which T-Mobile accused Huawei employees of stealing trade secrets relating to a mobile phone testing robot named “Tappy”.
T-Mobile filed its complaint in September 2014, and the following month Huawei’s US subsidiary responded with a motion to dismiss. Huawei USA argued the complaint failed to identify any information that qualified as a trade secret, urging the Court to consider three published patent applications and a video featuring Tappy (see below). Huawei also challenged T-Mobile’s claim that it created the robot, pointing out the conspicuous Epson logo on one of Tappy’s components.
T-Mobile’s opposition disputed Huawei’s version of the facts and argued that it was improper to consider papers outside of the complaint at the motion to dismiss stage. It also accused Huawei of failing to distinguish between its burden of, on the one hand, identifying its trade secrets, a pleading requirement, and, on the other hand, proving that the information was in fact secret, a question of fact requiring discovery. T-Mobile further stressed that Epson only created one component of its robot and, even when combining known components, trade secret protection may extend to the combination itself, if secret.
By November 2014 briefing on Huawei USA’s motion to dismiss was complete. For five months no substantive motions were filed, and the Court had not yet ruled on Huawei USA’s motion.
Then, last week, on April 22, 2015, the Chinese Huawei parent company filed its own motion to dismiss. It asserted a new argument—lack of personal jurisdiction—but it also adopted and expanded on its subsidiary’s arguments on the merits. It attached to its motion foreign patent applications corresponding to the ones its subsidiary previously identified and several media reports on various aspects of T-Mobile’s robot and testing lab, some of which were not included in the earlier motion to dismiss.
Considering that the same counsel represents both Huawei’s parent and subsidiary companies, it appears Huawei may get a second chance to brief its earlier motion to dismiss before the Court issues its ruling. T-Mobile may cry foul, but it is more likely to attack Huawei’s new evidence and arguments on the same grounds as its previous opposition.
We’ll have more when the Court issues its ruling. Stay posted.