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Hologic, Inc. v. Direct Digital Imaging Technology (Beijing), Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

November 27, 2018

HOLOGIC, INC.
v.
DIRECT DIGITAL IMAGING TECHNOLOGY (BEIJING), INC.

          PRELIMINARY INJUNCTION ORDER (PUBLIC VERSION)

          Brian A. Davis, Associate Justice of the Superior Court

         This matter came before the Court on October 26, 2018, for a hearing on plaintiff Hologic, Inc.’s ("Hologic") Motion for Preliminary Injunction (Docket Entry No. 98.0). Upon consideration of the motion, affidavits, and other materials filed in support and in opposition, as well as the statements and representations made at the hearing, the Court finds that Hologic has demonstrated a likelihood of success on the merits, that it faces a substantial risk of irreparable harm if the requested relief is not granted, that the balance of possible harms weighs in its favor, and that the public interest is best served by granting the relief requested. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-17 (1980); Brookline v. Goldstein, 388 Mass. 443, 447 (1983).

         Accordingly, IT IS HEREBY ORDERED, pursuant to Massachusetts Rule of Civil Procedure 65, that defendant Direct Digital Imaging Technology (Bejing), Inc. ("DDIT (Bejing)"), defendant Lawrence Ibbetson ("Mr. Ibbetson"), and any officer, agent, servant, employee, affiliate, subsidiary, attorney, or other person or entity in active concert or participation with any of them (collectively "Defendants"), are preliminarily enjoined from making any use of Hologic’s trade secrets regarding its proprietary coating processes, including, but not limited to:

1. using or disclosing any of the layer specifications/target data listed in the last page of this Order marked as "Attachment A to Order" ("Attachment A") (including, without limitation, layer composition) for any purpose, including to make or sell components or products derived, in whole or in part, from such specifications/target data, or to design or order a coating machine intended to produce components or products derived, in whole or in part, from such specifications/target data, or to create or derive any other specification/target data;
2. using the coating machine supplied to Defendants by Kurt J. Lesker Company (the "Lesker Machine"), or any information concerning, relating to, or derived from the Lesker Machine, to develop a selenium coating technology that is based upon, or tainted in any way by, Defendants’ prior exposure to and/or use of any layer specifications/target data listed in Attachment A;
3. using the Lesker Machine to manufacture components or products incorporating or derived, in whole or in part, from any layer specifications/target data listed in Attachment A; and
4. engineering new selenium coatings or selenium coating processes, including deposition rates or substrate temperatures, using the knowledge or services of Mr. Ibbetson, Sean Robinson, Tongle Wang, or Chuande Liu (collectively, the "Prohibited Personnel"), or any information provided by or obtained at any time from one or more of the Prohibited Personnel.

         Notwithstanding the Court’s preliminary finding that Defendants have wrongfully misappropriated Hologic’s trade secrets as reflected in the layer specifications/target data listed in Attachment A, the Court intends to permit Defendants a fair opportunity, during the pendency of these consolidated actions, to research and develop an alternative selenium coating technology that is not tainted in any way by Defendants’ prior exposure to and/or use of such specifications/target data.

         Accordingly, IT IS HEREBY FURTHER ORDERED that, unless and until this Court directs otherwise, Defendants only may undertake to research and develop an alternative selenium coating technology during the pendency of these consolidated actions as follows:

         1. Independent Monitor

         a. Selection of an Independent Monitor: On or before December 21, 2018, the parties shall submit a joint report with a Proposed Order to the Court recommending an independent monitor (the "Monitor"). The Monitor may be an individual or a company. If the parties cannot agree upon a Monitor, the joint report shall set forth each party’s proposed Monitor and include a brief explanation of each party’s position and the proposed Monitor’s qualifications, after which the Court will select and appoint a Monitor. The Monitor and/or any persons working for the Monitor shall sign Exhibit A to the existing Protective Order before commencing any monitoring activities;

         b. Sharing of Costs: Hologic and DDIT (Bejing) each shall pay, on a current basis, an equal share of the Monitor’s reasonable fees and costs. The Court may order such fees and costs be paid to the prevailing party as part of a final judgment on the merits entered with respect to Hologic’s trade secret claims. The parties may appeal any such award along with the final judgment; and

         c. Research and Development Information Repository: Defendants shall maintain an up-to-date data repository (the "Repository") for storing all information related to selenium coatings, the Lesker Machine in its original or modified form, and any research and development work concerning selenium coatings that is undertaken by Defendants pursuant to this Order. The Repository shall include all documents and information that influenced any technical decision of any Defendant or any member of any "Clean Team" (as defined below) with respect to Defendants’ selenium coating research and development work from and after October 26, 2018, including, for example, public documents (e.g., documents obtained from the Internet) related to selenium coating designs reviewed by the Clean Team prior to any use of the Lesker Machine in its original or modified form. All information in the Repository shall be made fully ...


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