IBM and Microsoft have wisely split the baby in a trade secrets dispute that wasn’t making either side look good.
IBM sued its former chief diversity officer, Lindsay-Rae McIntyre, last month shortly after she resigned to accept the same position with Microsoft. IBM v. McIntyre set off a vigorous debate in the IP and employment bars over whether knowledge of a company’s diversity efforts—as opposed to software code or customer lists—could be considered a protectable trade secret.
Keker, Van Nest & Peters IP partner Warren Braunig, who’s helped guide my understanding of this case, I think is mostly with me. “It’s only a win for IBM if you start with the premise that these were not trade secrets to begin with,” says Braunig. “Given the challenges IBM would’ve had in establishing misappropriation or the need for a restrictive covenant, putting [McIntyre] on the bench for five months is a decent outcome.”
Braunig, who says IBM’s goal was “fundamentally anti-competitive,” suggests that the settlement is unsatisfying from the litigator’s perspective. “Nothing in this settlement resolves the question of whether a public company’s diversity data or hiring strategies qualifies as a trade secret,” he said. “That novel theory will have to await another day.”
Read the full report here.