REDACTED OPINION
Table of Contents
I. INTRODUCTION.. .411
II. BACKGROUND.. .413
A. Factual and Procedural Background ...413
2. Mr. Owoo’s Separation from Baxter .. .415
3. Mr. Owoo’s Initial Contact with [¶] ...416
4. HQ’s Development Agreement with Mr. Owoo’s Welgrace Research Group ...417
5. HQ’s Applications before the USPTO and FDA ... 418
6. Litigation in this District ... 418
III. STANDARD OF REVIEW .. .419
IV. DISCUSSION.. .420
A. Baxter Cannot Establish a Prima Fa-cie Case of Tortious Interference with Contractual or Business Relationships .. .420
B. Admissible Evidence May Establish a Prima Facie Case of HQ’s Misappropriation of Trade Secrets ... 422
1. New Jersey’s Trade Secrets Act, N.J.S.A. § 56:15-1, et seq., generally .. .423
a. Genuine factual issues preclude a finding that Baxter’s “trade secrets” constitute public information... .424
b. ■ Genuine factual issues exist on whether [¶] had Reason to Know that Mr. Owoo obtained Baxter’s claimed “trade secrets” by Improper Means... .426
C. Admissible Evidence May Establish a Prima Facie Case for HQ’s Unjust Enrichment and/or Unfair Competition Claims ...426
D. Admissible Evidence May Establish a Prima Facie Case for Baxter’s claims for Correction of Inventorship and to Quiet Title to HQ’s Patents .. .427
V.CONCLUSION.. .427
1. INTRODUCTION
In this action Plaintiffs Baxter Healthcare Corporation, Baxter International Inc., and Baxter Healthcare S.A. (collectively, “Baxter”) assert three distinct series of claims arising out of Defendant [¶] Specialty Pharma Corporation’s (hereinafter, “HQ”) New Drug Application (hereinafter, “NDA”) for an esmolol premixed injectable bag product. First, Baxter alleges that the esmolol product claimed in HQ’s NDA infringes the formulation patents
This Court previously addressed the parties’ cross-motions for summary judgment on the issue of patent infringement, see Baxter Healthcare Corp. v. HQ Specialty Pharma Corp.,
Critically, the parties do not genuinely dispute that Mr. Owoo’s esmolol proposal to HQ. (now substantially embodied in HQ’s proposed formulation) closely resembles a formulation documented in a prior Baxter esmolol. study. ..Rather, in support of summary judgment, [¶] takes the position that the factual record nowhere suggests that it played any role in any unlawful conduct relative to the unsolicited esmolol proposal Mr, Owoo brought to [¶] on his own accord. (See HQ’s Br. at 1, 4-8, 16-26.) In that way, [¶] generally claims that it cannot be called to answer for Mr. Owoo’s independent malfeasance, particularly because it allegedly engaged Mr. Owoo with the belief (1) that his proposal had no connection to any confidential Baxter information and (2) that he otherwise acted as a free agent unrestrained by any contractual obligations. (See, e.g., id. at’ 24; see also HQ’s Reply at 7-11.) [¶] further submits that its formulation came from publicly-available sources (namely, the label for Baxter’s own concentrated esmolol formulation from the 1980s), and not any information over which Baxter can legitimately claim trade secrecy protection. (HQ’s Reply at 1-3; see also HQ’s Br. at 1-4, 10-12, 24-25.)
Baxter advances the position, by contrast, that, in working with Mr. Owoo, [¶] simply turned a blind eye to the obvious Baxter-centric underpinning for Mr. Owoo’s proposal, in order to fast track an esmolol product through its development pipeline. Mr. Owoo was an expert on esmo-lol product formulations at Baxter, who left Baxter and almost, immediately proposed the new esmolol product to HQ, which had no prior esmolol experience.
The factual record on the pending motion leaves little question that Mr. Owoo acted at best suspiciously and at worst unlawfully, in helping to develop rival es-molol formulations for both Baxter and HQ. Nevertheless, the claims at issue here call upon the Court to determine whether [¶] acted unlawfully relative to its esmolol product development, by either encouraging Mr. Owoo’s conduct or by engaging Mr. Owoo despite his conduct of which [¶] knew or should have known. For purposes of this motion, the Court must consider whether the movant, HQ, is correct that the factual record is undisputed and that it can give rise to no reasonable' inference of liability (or, triable issue of fact) on any or all of Baxter’s state law claims.
For the reasons that follow, HQ’s motion for summary judgment will be granted with respect to Baxter’s tortious interference claims,' but denied with respect to Baxter’s remaining claims for misappropriation of trade secrets, unfair competition, unjust enrichment, and correction of inven-torship.
II. BACKGROUND
A. Factual and Procedural Background
1. Background to Esmolol Hydrochloride and Baxter’s Innovative Es-molol Research
..Esmolol hydrochloride acts as “a short-acting cardioselective beta-blocker used ip treating acute cardiac disorders related to [an individual’s] heart rate.” (Clementi Rep. at ¶ 15; see also ’094 Patent at 1:13— 23.) In other words, medical professionals use esmolol hydrochloride products for “rapid [and short term] control of the ventricular heart rate” during “perioperative, postoperative, or other emergent circumstances.” (Clementi Rep. at ¶ 15.)
Baxter, a trailblazer in the esmolol industry, has “successfully commercialized various esmolol products under its BRE-VIBLOC® trademark” for over thirty years.
These early esmolol formulations,
Through this research, Baxter claims to have solved these problems, and developed a ready-to-use aqueous esmolol formulation capable of sterilization by auto-claving. (’094 Patent at 2:1-14; ’540 Patent at 2:1-14.) Indeed, in contrast to the prior art, the claimed formulations prove “sta
[Redacted text]
[Redacted text] The report itself prominently identifies its content and the data underlying its findings (laboratory notebooks, and the like) as “BAXTER CONFIDENTIAL.” (Attachment E. to Chaubal Dec.; see also Baxter’s Supp. SMF at ¶ 24.)
[Redacted text]
2, Mr. Qwoo’s Separation from Baxter
As part of his severance agreement, Baxter paid Mr. Owoo “valuable consideration” in exchange for Mr. Owoo’s reaffirmation of his obligation not to “disclose) use, or share any confidential, non-public information of the Company that [he] acquired during the course of his[ ] employment with the. Company with/to any third party without [Baxter’s] prior written consent,” as well,as his agreement to “honor and continue to abide by all obligations set forth in [his] Employment Agreement.” (Id. at ¶ 6(f); see also Baxter’s Supp. SMF at ¶ 55.) The Employment Agreement, in turn, required Mr. Owoo to forever “preserve as confidential” any non-public “information relating to the present or planned business of Baxter,”
3. Mr. Owoo’s Initial Contact with HQ
Around the time of -his termination,
As a result, Mr, Owoo approached [¶] (through Mr. Richard) in late February 2010, that is, within two or three weeks of his separation from Baxter and about a month after the signing of Baxter’s Study No. 47192, above, on January 22, 2010. Mr. Owoo presented [¶] with a proposal to develop a- ready-to-use and “non-infringing” “alternative” formulation of BREVI-BLOC®, comprised of a specific formulation [redacted text]. (Richard Dep. at 121:8-126:6, 144:19-146:5; Exs. B & H to Kelly Dec.; see also Baxter’s Supp. SMF at ¶¶ 61-64.)
In connection with this proposal, Mr. Owoo provided Mr. Richard with “financial models” and a “value proposition for esmo-lol”- under the heading of Mr. Owoo’s wholly-owned and controlled company, Welg-race’ Research Company ' (hereinafter, “Welgraee”). (Exs. B, D, & E to Kelly Dec.; see also Second Am. Compl. at ¶ 6; Baxter’s SMF at ¶ 31.) Although Mr. Richard knew that Mr. Owoo had worked on BREVIBLOC® (i.e., esmolol) products while at Baxter,
4. HQ’s Development Agreement with Mr. Owoo’s Welgrace ■ Research Group
Following a series of additional exchanges and testing,
Nevertheless, at some point following execution of the Agreement, Ms. Squeglia developed some concern that Mr. Owoo
5. HQ’s Applications before the USPTO and FDA
More specifically, in March and August of 2013, [¶] and Welgrace filed patent applications, entitled “READY-TO-USE CO-SOLVENTS PHARMACEUTICAL COMPOSITION IN MODIFIED FLEXIBLE PLASTIC CONTAINER.”
For that reason, among others, HQ’s September 5, 2013 Paragraph IV Certification detailed its position on noninfringement of Baxter’s patents, as well as its contention that HQ’s product rested upon expired patents and product labels of previously marketed esmolol formulations. (See HQ’s SMF at ¶¶ 35-36; see also Ex. Q to Kelly Dec.)
6. Litigation in this District
As a result of HQ’s NDA filing, Baxter filed this patent infringement action on October 18, 2013 against only HQ. (See generally Compl.) In its March 11, 2014 initial disclosures, [¶] identified Mr. Owoo as one of two individuals with knowledge of the “[d]rafting and submission” of HQ’s NDA, as well as the underpinning “research and development” of HQ’s “esmolol formulation.” (Ex. R to Kelly Dec.)
Three months after these disclosures,
On January 16, 2015, Baxter filed a Second Amended Complaint, asserting the same series of claims directly against Welgrace, the Estate of George Owoo, and Janet Fenning-Owoo in her capacity as Administrator of Mr. Owoo’s Estate and as Vice President of Welgrace.
After reassignment of this case to the undersigned, this Court decided the parties’ cross-motions for summary judgment on the issue of patent infringement, Baxter Healthcare Corp.,
III. STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Alabama v. North Carolina,
In evaluating HQ’s motion for summary judgment, the Court must view the material facts in the light most favorable to the non-moving party, here Baxter, and make every reasonable inference in that party’s favor. See Scott v. Harris,
IV. DISCUSSION
Baxter asserts, as explained above, various state law tort and inventorship claims directed at the circumstances giving rise to HQ’s proposed esmolol formulation, as well as the composition itself. The Court will address each claim, in turn.
A. Baxter Cannot Establish a Prima Facie Case of Tortious Interference with Contractual or Business Relationships
In its claims for tortious interference (Counts III & IV), Baxter argues that, in developing a competing esmolol formulation, [¶] wrongfully interfered with Mr. Owoo’s obligations under the Severance and Employment Agreements, and with Baxter’s reasonable expectation for prospective business relationships. (See Second Am. Compl. at ¶¶ 75-91.) In support of these claims, Baxter advances arguments about its distribution of BREVIBLOC® bags, potential price erosion of BREVI-BLOC® in the event HQ’s competing product reaches the market, and its position that [¶] had at least reason to know of (or to suspect) Mr. Owoo’s contractual obligations. (See Baxter’s Opp’n at 23-26.) Nevertheless, Baxter’s positions rely upon speculation of the sort routinely deemed insufficient to create a genuine factual issue, and for that reason, the Court finds summary judgment on these claims appropriate.
In order to prevail on tortious interference claims under New Jersey law,
Regarding tortious interference, the Court need address only the “malice” element, because the record amassed by the parties falls far short of demonstrating the intentionality necessary for purposes of Baxter’s tortious interference claims. Under New Jersey law of tortious interference, the notion of “malice” requires that the defendant acted intentionally with respect to a known contractual duty of another; it does not suffice that a defendant “should have known” of the contractual relationship, because one cannot act with intent to interfere with a contract unless that contract is actually known. See, e.g., Lamorte Burns & Co. v. Walters,
Baxter’s evidence on the issue of malice amounts to little more than its position that [¶] necessarily encouraged Mr. Owoo to violate' his obligations to Baxter and “paid him for the specific purpose of developing a generic version” of Baxter’s Í3RE-VIBLOC® products “that he and others invented while at Baxter.” (Baxter’s Opp’n at 25.) Even if these assertions are correct, the evidence does not demonstrate that [¶] knew these obligations actually existed.
To the contrary, the [¶] employees with direct contact with Mr. Owoo (Mr. Richard, Ms. Squeglia, and Mr. Pizza) all testified that they made inquiry into Mr. Owoo’s contractual obligations (on their own and through HQ’s, counsel) as discussed above, and otherwise had no knowledge of Mr. Owoo’s Employment and Service Agreements prior to the filing of Baxter’s amended pleading.
Against that backdrop, the record, viewed in the light most favorable to Baxter, creates no reasonable inference that [¶] acted with malice or with the intention of interfering with Baxter’s contractual and business relationships.
B. Admissible Evidence May Establish a Prima Facie Case of HQ’s Misappropriation of Trade Secrets
Baxter’s claim for misappropriation of trade secrets (Count V) hinges upon its position that Mr. Owoo used Baxter’s trade secrets in order to develop their proposed esmolol bag product, and that [¶] knew or had reason to know of Mr. Owoo’s “theft of Baxter’s trade secret information.” (Baxter’s Opp’n at 13-23; see also Second Am. Compl. at ¶¶ 92-102.) In support of these positions, Baxter points to
1. New Jersey’s Trade Secrets Act, N.J.S.A. § 56:15-1, et seq., generally
The New Jersey Trade Secrets Act, N.J.S.A. § 56:15-1, et seq. (hereinafter, the “Act”), prohibits the actual or threatened misappropriation of a “trade secret.”
(1) Acquisition, of a trade secret of another by a person who knows or has reason to know that a person acquired the trade secret by improper means;[46 ] or
(2) Disclosure or use of a trade secret of another without express or implied consent of the trade secret owner by a person who:
(a) Used improper means to acquire knowledge of the trade secret; or
(b) At the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was derived or acquired through improper means; or ...
(c) Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired through improper means.
See N.J.S.A. § 56:15-2. Stated differently, Baxter can succeed on its misappropriation claim only if it proves that [¶] used Baxter’s “trade secrets,” without Baxter’s consent, and either (i) at the time of such use, “knew or had reason to know” that Mr. Owoo acquired the trade secrets “through improper means;” or (ii) “before a material change of position,” “knew or had reason to know” that the information consisted of a trade secret and “that knowledge of it had been acquired through improper means.” Id. (emphases added). Thus, the Court must consider whether the factual record creates genuine issues on (1) whether Mr. Owoo developed HQ’s esmolol product using information that qualifies as Baxter’s trade secrets, and (2) whether [¶] knew or had reason to know that Mr. Owoo obtained the trade secrets by improper means. The Court will address.each issue in turn.
a. Genuine factual issues preclude a finding that Baxter’s “trade secrets” constitute public information
in any trade secret case, the Court must first determine whether there exists, in fact, a trade secret. See Merckle GmbH v. Johnson & Johnson,
In this instance, Baxter argues that HQ’s proposed product rests upon three basic “trade secrets:”
Indeed, as to the formulation and stability expectations, [¶] claims that its esmolol formulation (the composition equally embodied in formulation 4) simply mirrors the “original esmolol formulation” published by Baxter in 1986. (HQ’s Br., at 11.) In other words, [¶] submits that Baxter’s Study No. 47192 (at least in terms of formulation 4) did little more than recycle its long-known formulation. (See generally id.) Baxter, by contrast, states that its “original esmolol formulation” bears little resemblance to HQ’s formulation, because Baxter prepared it aseptically (rather than through autoclaving), and because “no evidence” suggests that the original esmolol form would have a shelf life and a degra-dant profile equivalent to that claimed in HQ’s invention (and allegedly derived from Baxter’s formulation 4 and the results of Study No. 47192). (Baxter’s Opp’n at 15-16.)
Even a cursory inspection of Baxter’s (partially illegible) product labels reveals that its early esmolol concentrate consisted of the same concentration of es-molol, propylene glycol, and ethanol found in HQ’s ready-to-use product. (Compare Ex. U to Kelly Dec. at 4-5 (HQ’s NDA), with Exs. T, U, & V to Kelly Dec. (Baxter’s labeling information).) [redacted text]
Nor can the Court conclude that Baxter’s public disclosures of its HPLC protocols unquestionably provided sufficient public knowledge of its analytical technique to deprive it, on summary judgment, of the protection of trade secrecy. Indeed, although Baxter plainly published an abstract that disclosed the broad contours of Baxter’s HPLC protocols (see Ex. Z to Kelly Dec.), there is evidence from Baxter’s pharmaceutical development expert, Mr. Clementi, that explains why the abstract’s “scant, details” and its “numerous differences” from Baxter’s HPLC method prove inadequate to uncover the exact specifications of Baxter’s technique.
In sum, given the parties’ genuinely conflicting accounts, the ultimate determination of the existence of trade secrets must be reserved for the factfinder.
b. Genuine factual issues exist on whether [¶] had Reason to Know that Mr. Owoo obtained Baxter’s claimed “trade secrets” by Improper Means
Even if this information qualified as trade secrets, Baxter must still demonstrate that [¶] knew or had reason to know that Mr. Owoo obtained this information through improper means. Baxter’s argument on this issue proves simple: it claims that [¶] “‘st[u]ck its head in the sand’ ” and “knowingly engaged in an employee intimately involved with Baxter’s esmolol products to create a competing version of Baxter’s commercial product.” (Baxter’s Opp’n at 22-24.) In other words, Baxter takes the position that genuinely , disputed' evidence suggests that [¶] plainly had reason to know that Baxter’s trade secret information formed the fabric of Mr. Owoo’s “fully formed” esmolol concept.
The Court agrees. Indeed, there is evidence that [¶] knew of Mr. Owoo’s involvement in esmolol formulations while at Baxter (through Mr. Richard), that it knew that Mr. Owoo proposed a late-stage esmolol product (also through Mr. Richard), and that it knew that [¶] had no such esmolol development effort of its own before Mr. Owoo came from Baxter. In view of this, the Court finds at least circumstantial evidence from which a factfinder could conclude that Baxter had reason to know that Mr. Owoo may have accessed (and relied upon) trade-secret information obtained through improper means. Indeed, [¶] appears to have inquired into Mr. Owoo’s contractual obligations to Baxter for precisely that reason. Whether [¶] had reason to know that Mr. Owoo was using trade secrets from Baxter, protected as such, in his proposal to and employment by HQ, remains to be determined at trial. If [¶] was willfully blind to the circumstances indicating Mr. Owoo’s improper use of Baxter’s trade secrets, [¶] may be hable for misappropriation. The Court, however, cannot resolve these disputed issues in the context of the pending motion of summary judgment.
For all of these reasons, HQ’s motion for summary judgment on Baxter’s misappropriation claim will be denied.
C. Admissible Evidence May Establish a Prima Facie Case for HQ’s Unjust Enrichment and/or Unfair Competition Claims
Baxter premises its claims for unjust enrichment and unfair competition (Counts VI & VII), upon its position that [¶] tortiously interfered into Baxter’s affairs and misappropriated its trade secrets. (See Second Am. Compl. at ¶¶ 103-139.) In other words, these claims depend upon a finding of liability in favor of Baxter on its tortious interference and misappropriation claims. (See Baxter’s Opp’n at 26-30.) Because the Court has found factual issues on Baxter’s misappropriation claim (i.e., the conduct partially underpinning these additional claims), HQ’s motion for summary judgment must be denied on these counts as well.
In its final claims for correction of inven-torship and to quiet title, Baxter seeks declarations (1) removing Erica Castagna as an inventor on the ’505 and ’054 patents, HQ’s esmolol patents, and (2) deeming Baxter “the true titleholder of the ’505 and ’054 Patents,” because Mr. Owoo allegedly conceived of the invention embodied in HQ’s patents while at Baxter (thereby making Ms. Castagna’s role insignificant), and because he contractually assigned all such inventions to Baxter (affording it a claim to ownership). (Second Am. Compl. at ¶¶ 115-139.) In support of these claims, Baxter points to the evidence that Mr. Owoo brought [¶] a “fully formed” product upon his departure from Baxter, and to the evidence that [¶] listed Ms. Castagna as an inventor only as a courtesy. (See, e.g., Baxter’s Supp. SMF at ¶¶ 47-48, 61-75.) HQ, by contrast, takes the position that Mr. Owoo and Ms. Castagna conceived of its invention in 2012, long after Mr. Owoo’s departure from Baxter. (See HQ’s Br. at 29-34.)
The Court, however, need not belabor the parties’ positions, because genuine factual disputes plainly preclude a finding in HQ’s favor. Indeed, Mr. Owoo’s presentment of his esmolol proposal to [¶] less than a month after his Baxter termination, standing alone, creates a reasonable inference that Mr. Owoo conceived of his esmolol proposal while at Baxter, and HQ’s own records permit the inference that it named Ms. Castagna an inventor mostly as a courtesy (and not necessarily because she conceived of the esmolol formulation embodied in HQ’s patents). (See Exs. B, D, E to Kelly Dec.; Ex. 29 to Gallo Dec.; Squeglia Dep. at 174:23-175:2.) Even more, no party challenges the fact that Mr. Owoo contractually assigned to Baxter his rights to any invention “conceived or reduced to practice by” him, during his employment with Baxter or within 120 days following his termination. (Ex. 6 to Gallo Dec. at ¶ 7.) Mr. Owoo’s proposed esmolol formulation was disclosed to [¶] well within this 120-day period. The Court cannot resolve these genuinely disputed factual issues in the context of summary judgment. As a result, HQ’s motion for summary judgment on these claims will be denied.
V. CONCLUSION
For all of these reason, the Court finds that the undisputed facts demonstrate HQ’s entitlement to judgement as a matter of law on Baxter’s state law tort claims for tortious interference (Counts III to IV), but concludes that genuine factual issues preclude the summary disposition of Baxter’s misappropriation of trade secrets, unjust enrichment, unfair competition, and inventorship claims (Counts V to IX). The foregoing opinion is a redacted version of the sealed opinion filed January 19, 2016.
Notes
.The esmolol patents asserted by Baxter issued in 2001 and 2003, and include U.S. Patent Nos. 6,310,094 (hereinafter, "094 Patent”) and 6,528,540 (hereinafter, ‘"540 Patent” and collectively, "Baxter’s Patents”). Taken together, these patents teach a ready-to-use, injectable parenteral solution containing esmolol hydrochloride, a buffering agent, an osmotic-adjusting agent, and a method for its manufacture in a sealed container. (See ’094 Patent at 5:8-6:23; 540 Patent at 5:60-8:11.)
. The infringement claims will proceed to a bench trial before the undersigned on February 1, 2016.
. Mr. Owoo died on May 2, 2014 (See HQ’s SMF at ¶ 40), and the factual record relative to Mr. Owoo remains sparse, perhaps as a result of the fact that Baxter did not propound its allegations related to Mr. Owoo's conduct until after his death. As a result, the factual record relative to his conduct consists, almost exclusively, of testimony from [¶] employees.
. HQ claimed its esmolol formulation in U.S. Patent Nos. 8,835,505 (hereinafter, the "’505 Patent”) and 8,829,054 (hereinafter, the "’054 Patent”), both of which' issued in September 2014. Viewed together, HQ’s Patents disclose a ready-to-use, injectable esmolol formulation that consists of esmolol hydrochloride, a buffering agent, a combination of ethanol and propylene glycol, and a pH adjuster, capable of being stored in a modified flexible plastic storage container. (See '505 Patent at 15:61-18:41; 054 Patent at 15:61-18:41.) In other words, HQ’s proposed esmolol product purports to differ from Baxter’s principally in terms of its specific composition and container.
. These state law tort and inventorship claims specifically include: (1) tortious interference with contract (count III), (2) tortious interference with prospective business relations (count IV), (3) misappropriation of trade secrets (count V), (4) unfair competition (count VI), (5) unjust enrichment (count VII), (6) correction of inventorship (count VIII), and (7) declaratory judgment and quiet title (count IX). (See Second Am. Compl. at ¶¶ 76-139.)
. The Court has subject matter jurisdiction over this action pursuant to 28 Ú.S.C. §§ 1331, 1338(a), and 1367(a).
. The Court distills this undisputed version of events from the parties’ statements of material facts, affidavits, and exhibits, and recounts them in the- manner most favorable to Baxter, as the party opposing summary judgment. The Court disregards, as it must, those portions of the parties' statements of material facts that lack citation to relevant record evidence (unless admitted .by the opponent) and/or contain improper legal argument or conclusions. See generally L. Civ. R. 56.1(a); see also Kemly v. Werner Co.,
.The parties do not dispute Baxter’s pivotal role in commercializing esmolol products, nor that HQ’s pending NDA amounts to its first foray into the esmolol market.
. Generally speaking, esmolol hydrochloride (the active pharmaceutical ingredient of any esmolol product) constitutes one type of "beta-blocker,” a class of drugs that block the "beta” receptor of heart muscles, arteries, and certain other tissue. ('094 Patent at 1:13-23.)
. In other words, these prior esmolol forms disintegrated in water. (See Baxter’s Supp. SMF at ¶ 10.)
. Autoclaving refers to a process that sterilizes a manufactured product after the composition has been made and put into its packaging. (See Clementi Rep. at ¶ 18 n.l.) Aspectic sterilization (as required for early esmolol forms), by contrast, involves making the product and filling it into its packaging in a sterile environment. (See id.)
. Indeed, Baxter withdrew its BREVI-BLOC® concentrate ampul product, largely on account of these issues. (See Baxter's Supp. SMF at ¶ 7.)
. Mr. Owoo’s formal employment relationship with Baxter began on March 19, 1998 (see Ex. DD to Kelly Dec.; see also Ex. 6 to Gallo Dec.; Baxter’s Supp. SMF at ¶ 50), although his informal consultative work appears to date back to September 1, 1994. (See Ex. 7 to Gallo Dec.)
.During this period, Baxter alleges that Mr. Owoo had access to, and helped develop, confidential esmolol information concerning: "formulation research, product test methods and research reports; manufacturing processes, in-process controls, release specifications, and impurities profiles; product stability testing and data; clinical research strategies; regulatory proceedings; marketing and commercial strategies, competitive analyses, [] new product development” information, and the full panoply of Baxter’s "confidential FDA materials.” (Chaubal Dec. at ¶¶ 10-12.) Beyond this, however, Baxter provides little if any detail concerning the exact nature and classification of Mr. Owoo’s employment. Rather, the record developed by Baxter simply states, without documentary evidence, that Mr. Owoo would have had knowledge of, access to, and been involved in, an array of activities relative to Baxter’s confidential information. (See, e.g., Chaubal Dec. at ¶¶ 10-11, 26.) Moreover, although he appears listed on many of Baxter’s documents (aside from Baxter’s Patents), his name never appears to bear a title and was ordinarily included amongst an array of Baxter employees. (See, e.g., Ex. 25 to Gallo Dec. (listing Mr. Owoo as one of multiple "bcc” recipients).)
. The claims of Baxter’s patents are, as explained above, directed at a specific esmolol composition and a method for preparing and sterilizing the composition in a sealed bag. (See generally ’094 Patent at 5:8-6:23; ’540 Patent at 5:55-8:11.) Baxter currently markets this invention as a "large volume ready-to-use” product packaged in flexible intravenous bags in two dosage strengths (10 mg/mL in a 250 mL bag and 20 mg/mL in a 100 mL bag). (See Clementi Rep. at ¶¶ 15, 21.)
. [¶] takes issues with Baxter’s characterization of Mr. Owoo as a " Technical lead’ ” for its "esmolol projects.” (HQ’s SMF at ¶ 80 (citing Second Am. Compl. at ¶ 40) (arguing that “[n]o document produced by Baxter in this litigation identifies George Owoo as ‘technical lead’ ”).) Nevertheless, Baxter’s Vice President for Product Quality, Dr. Chaubal described Mr. Owoo as "one of the technical leaders of all Brevibloc esmolol products for many years prior to his departure in 2010” (Chaubal Dec. at ¶ 10), and Mr. Owoo’s status as a named inventor on Baxter’s patents plainly reflects the depth of his esmolol involvement while at Baxter. (See, e.g., '094 Patent.) (Clementi Rep. at ¶¶ 48-49.)
. [Redacted text]
. [Redacted text]
. [Redacted text] (Clementi Rep. at ¶¶ 48-49.)
. Although Baxter and Mr. Owoo executed a severance agreement on February 12, 2010 (thereby marking the official conclusion of Mr. Owoo’s employment), the record suggests that Mr. Owoo discontinued his work with Baxter prior to execution of the severance agreement. (See, e.g., HQ’s SMF at ¶ 2.) Indeed, the signature page for Study No. 47192 suggests that Mr. Owoo left Baxter some time before January 22, 2010. (See Attachment'E to Chaubal Dec.)
. Confidential Information within the meaning of the Employment Agreement includes "Trade Secrets, Inventions, know-how and products,” research and development projects and findings, designs, formulations, processes, methods of manufacture, and cost and pricing date. (See Ex. .6 to Gallo Dec. at ¶¶ 1(c), 5.)
. In other words, the Agreement imposed a duty of confidentiality in perpetuity. Nevertheless, it expressly excluded "publicly known” information from the scope of its provisions. (Ex. 6 to Gallo Dec. at ¶ 4.)
. The record fails to disclose the actual date of this initial conversation with any degree of precision. Indeed, the parties have not stated a clear timeline of these early events. Nevertheless, the Court has recited the sequence of events based upon the parties’ lengthy submissions.
. Indeed, years prior to his departure from Baxter, Mr. Owoo emailed Mr. Richard a marketing presentation for the BREVIBLOC® product portfolio. (See Ex. F to Kelly Dec.) Nevertheless, the parties do not dispute that Mr. Richard did not solicit this presentation, and that Mr. Owoo "[a]t times” sent "Mr. Richard unsolicited emails asking him to review public presentations for review and editing.” (HQ’s SMF at ¶¶ 85-88; Baxter’s SMF at ¶¶ 85-88 ("Not Disputed”).)
. For purposes of the pending motion, the Court will consider Mr, Owoo’s statements. Nevertheless, the Court is doubtful that these statements would be admissible for the truth of the matter asserted under Federal Rule of Evidence 804(b).
. Baxter, of course, disputes that Mr. Owoo could have developed his proposed esmolol product without using its confidential information. (See, e.g., Baxter’s SMF at ¶ 15.) Indeed, Baxter claims that Mr, Owoo could not
. [redacted text]
. Baxter acknowledges the documents, but again states that Mr. Owoo's proposal rested upon "Baxter’s confidential information,” and challenges Mr. Owoo’s characterization of his proposed product as " 'non-infringing.' ” (Baxter’s SMF at ¶ 22.) Baxter does not, however, dispute that Mr. Owoo nevertheless presented the product as sourced from public information. (See id.)
. For that reason, the Court finds no genuine dispute that [¶] knew of Baxter’s esmolol patents prior to and during their discussions with Mr. Owoo, although it appears that it may not have initially known of Mr. Owoo’s actual involvement relative to those patents. (See Squeglia Dep, at 148:7-149:25; see also Baxter’s SMF at ¶ 23.)
. Indeed, Mr. Owoo’s proposal contained a diagram, comparing Baxter’s BREVIBLOC® formulation to Mr. Owoo's proposed esmolol form. (See Ex. H to Kelly Dec.)
. In the interim, various researchers from [¶] (and its affiliates) performed a panel of osmolality and stability tests' relative to Mr. Owoo’s proposal. (See, e.g., Ex. C to Kelly Dec.) As relevant here, Erica Castagna produced a chromatogram for esmolol — work which later resulted in Ms. Castagna’s listing as a co-inventor on HQ’s patents. (See Ex. C to Kelly Dec.; Squeglia Dep. at 174:19-175:22; Ex. 29 to Gallo Dec. (explaining that [¶] "would like to include Erica as an additional inventor on the patent ... [as] a courtesy” for the work she generated).)
. The Court will again consider these statements subject to the concerns expressed supra.
. The USPTO issued Notices for Allowance of these patents July of 2014, and they formally issued in September of 2014. (See Exs. O, P, Y, HH to Kelly Dec.)
.In the interim, Mr. Owoo died on May 2, 2014. (See HQ’s SMF at ¶ 40.)
. Baxter does not genuinely dispute that Mr. Richard, Ms. Squeglia, and Mr. Pizza all testified to no prior knowledge of Mr. Owoo’s contractual obligations. Rather, Baxter advances the position, throughout its briefing, that the statements of HQ’s own employees are "simply implausible,” given Mr. Owoo's recent specialized prior employment with "a large pharmaceutical company such as Baxter.” (Baxter’s SMF at ¶ 43.) In other words, Baxter argues, in essence, that [¶] (and its employees) ignored the obvious existence of employment agreements characteristic of the restrictions on scientists employed in pharmaceutical development. (See id. at ¶ 44.)
. On July 20, 2015, however, Baxter voluntarily dismissed its claims against these additional Defendants. [See Docket Item 178.]
. Because the claimed tortious activity took place in this forum, the parties agree that New Jersey law governs these claims. (See HQ’s Br. at 16 n. 8 (applying New Jersey law); Baxter’s Opp’n at 23-26 (same).)
. Malice in this context "does not require ill will,” but instead means that the defendant intentionally inflicted harm "without justification or excuse.” DiGiorgio Corp. v. Mendez & Co.,
.In that way, tortious interference with contract differs from tortious interference with a prospective economic benefit, only in terms of the contractual element. See Graco, Inc. v. PMC Global, Inc., No. 09-1304,
. Although Baxter advances the position that [¶] should have known that a "sophisticated pharmaceutical company,” like Baxter, would have required contractual arrangements, what [¶] "should have known” is not sufficient for a tortious interference claim, as discussed above. Beyond this, Mr. Richard, the only deponent to have touched upon this is- . sue, testified that he was not aware of such contractual agreements for Mr. Owoo and that the industry “standard” only required such agreements at "very high levels.” (Richard Dep. at 136:7.-22.) Baxter's argument to the contrary sounds only in negligence and poor judgment, not intentional and/or malicious conduct. See DiGiorgio Corp. v. Mendez & Co.,
. Under New Jersey law, [¶] may rely upon Mr. Owoo’s representations concerning the source of his esmolol formulation, and Mr. Owoo’s contractual or fiduciary duty to safeguard confidential information is not automatically imputed to HQ, his subsequent employer. See Givaudan Fragrances Corp. v. Krivda, No. 08-4409,
. To the contrary, on the one instance in which [¶] confronted Baxter data, [¶] expressly refused to rely upon it. (See Ex. C to Kelly Dec. (explaining that [¶] must rerun an osmolality test, because it could not use Baxter testing data provided by Mr. Owoo).)
.The Court finds Baxter’s reliance upon Med Alert Ambulance, Inc. v. Atlantic Health Systems, Inc., No. 04-1615,
. Although New Jersey did not promulgate the Act until January 5, 2012, New Jersey enacted it as a distillation of the developed common of trade secrecy, and both parties apply its provisions to Baxter’s misappropria- - tion claim. (See, e.g., HQ's Br. at 22; Baxter’s Opp'n at 13 n.3.) The Court will conform its discussion accordingly.
. Generally speaking, [¶] does not appear to dispute the reasonableness of Baxter’s attempts to maintain the confidentiality of its trade secret information. Rather, [¶] challenges whether the information identified by Baxter constitutes a trade secret in the first place. (See generally HQ’s Br.) However, even if [¶] challenged Baxter’s efforts towards ensuring secrecy, Baxter’s submissions demonstrate genuine factual issues on the reasonableness ■ of its precautions relative to confidential information. (See Chaubal Dec. at ¶¶ 17-24 (describing, at length, Baxter’s general efforts towards protecting its confidential information).)
. Improper means include “the theft, bribery, misrepresentation, breach or inducement of a breach of an express or implied duty to maintain the secrecy of, or to limit the use or disclosure of, a trade secret, or espionage through electronic or other means, access that is unauthorized or exceeds the scope of authorization, or other means that violate a person’s rights under the laws of this State.” N.J.S.A. § 56:15-2. Proper means (i.e„ lawful acquisition), by contrast, include "discovery by independent invention, discovery by reverse engineering,-.discovery under a license from the owner of the trade secret, observation of the information in public use or on public-display, obtaining the trade secret from published literature, or discovery or observation by any other means that is not improper.” Id. • ■
. [¶] takes exception with the timeliness of Baxter's identification of the trade secrets alleged to be misappropriated, on account of the fact that Baxter did not specifically identify the "Baxter documents alleged to constitute trade secrets” until its March 4, 2015 supplemental interrogatory responses. (HQ’s Br, at 22-23; see also HQ’s Reply at 4-5.) Generally speaking, a plaintiff in, a misappropriation of trade secrets case must provide in its complaint a "description” of the disputed trade secrets sufficient to " ‘(a) put the defendant on notice of the nature of [the] plaintiff’s claim's and (b) [to] enable the defendant to determine the relevancy of any requested discovery concerning its trade secrets,’ ” PTT, LLC v. Gimme Games, No. 13-7161,
. The Court finds Baxter’s claim of trade secrecy over its osmolality measurements unsupportable. Indeed, [¶] performed its own osmolality measurements based upon Baxter's publicly available “ampule formulation”
. [redacted text]
. Moreover, although [¶] claims that it has now developed its own "analytical proce- • dure” and “will not use the Baxter technique” (see HQ’s Br. at 14), it could still arguably be charged with having acquired Baxter’s trade secrets, even in the face of its 'own' decision to disavow any reliance upon Baxter’s method. See N.J.S.A. § 56:15-2 (explaining that misappropriation includes acquisition of a trade secret).
. That there is no evidence that [¶] actually knew of the existence of Mr. Owoo's Severance and Employment Agreements with Baxter was established in Part IV.A, supra. The inquiry here is whether [¶] had reason to know of Mr. Owoo’s restrictions on disclosure of Baxter's trade secrets.
. Moreover, although these claims appear to find their root in Baxter’s misappropriation claim, the Court cannot conclude, upon this