By David A. Kays

Rejecting the argument that state trade secret and breach of contract claims were pre-empted by federal patent law, the U.S. Court of Appeals for the Tenth Circuit upheld the district court's jury verdict for the plaintiff and $20 million award of damages for unjust enrichment and breach of contract. Russo v. Ballard Med. Prods., Case Nos. 07-4090, -4102 (10th Cir., Dec. 18, 2008) (Gorsuch, J.).

Ballard Medical Products sought the help of Ronald Russo, an independent medical device inventor, to assist in designing improvements to its TrachCare 24 catheter, a closed-suction catheter designed to remove debris from ventilator tubes without having to disconnect patients from the ventilators that provide them with oxygen. After executing a confidential disclosure agreement (CDA), Russo presented design drawings and a prototype for several improvements, but negotiations over licensing the improvements failed. Ballard subsequently used Russo's designs to secure two patents and bring its new product, TrachCare 72, to market.

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