Barbara Fiacco, co-chair of the firm's Patent & Trade Secrets Litigation Practice and its Intellectual Property Department, spoke with Law360 about the implications of the Massachusetts Supreme Judicial Court's recent decision eliminating the presumption of irreparable harm in trade secret cases.

Fiacco explained that the ruling brings trade secret litigation more in line with the framework patent litigators have followed since the U.S. Supreme Court's landmark eBay v. MercExchange decision. “Patent litigators have been dealing with the eBay decision for 20 years now,” she said. “We are all used to it, and we know what we want to do to prepare for a preliminary injunction.”

Discussing the practical impact of the decision, Fiacco emphasized that parties seeking preliminary injunctions will need to build a stronger evidentiary record, stressing the importance of “declarations, declarations, declarations” to demonstrate irreparable harm that cannot be remedied through monetary damages. She also noted that the heightened burden may lead some plaintiffs to reconsider pursuing preliminary injunctions because of the increased costs associated with developing that factual record.

Read the full Law360 article.