Fabio E. Marino

Marino heads Polsinelli's intellectual property litigation practice, and he is the managing partner of the firm's Palo Alto office. His specialties include trade secrets and copyright matters, patents and computer-related technologies. He is a former software architect in artificial intelligence development and a former video game developer.

The coronavirus shutdowns have aggravated companies' risks as they struggle to keep confidential information safe, he said. "Already, this year seems like a decade. In San Francisco, a lot of tech workers have roommates, and some of them even work for competing companies. There's a security breach waiting to happen. Zoom or Webex calls use speakers, and your roommate is there. And I'm getting inquiries from clients on how to deal with that. I tell them use headsets and find a private space. Minimize the chance of exposure."

Another hazard is the increased layoffs among tech workers and the chance they'll take their information to competitors. Marino said California's embrace of the inevitable disclosure doctrine to encourage employee mobility and innovation is useful, because it can shield employees who leave one job and take the personal knowledge in their heads to another, as long as no files or data transfers occur.

Referring to a prominent Silicon Valley case of knowledge transfer regarding autonomous vehicles, Marino joked that the defendant could have stayed out of trouble: "If Anthony Levandowski had memorized those terabytes of data instead of downloading them, he'd be fine."

Marino added, "Technology people are leaving their jobs in the economic downturn, and suits are being filed when they take information with them. One client was told his company was not going to do his project, so he left and tried to do it himself. The company sued. The equities seem to be with him, but now he's in a non-inevitable disclosure state, so he'll have to respond. But he can't afford to defend himself, so we'll have to find a way to resolve it. He'd have a stronger defense in California, because he took nothing. It will be an unfortunate result. He'll have to give up the project."

The world-leading manufacturer of close toe sock knitting machines retained Marino to be its lead counsel in a series of cases across the U.S. against a competing Chinese maker of copycat knitting equipment. In one such case, he filed a complaint on behalf of the client's U.S. licensee in a willful patent infringement action in North Carolina, a major center of clothing manufacturing. PAM Trading Corp. v. Custom Socks Ink Inc., 5-cv-00065 (W.D. N. Carolina, filed May 19, 2020).

"Trade secrets are the factual underpinning of all these cases," he said. "We filed for a preliminary injunction and they immediately surrendered. And we did it all remotely. Then I checked and it turns out that I do wear my client's ski socks."

-- John Roemer