Less than a week after the first major reports of outbreaks of the H1N1 influenza (dubbed “swine flu” by the media for its prevalence in pigs), two leaders in flu treatment and prevention-GlaxoSmithKline and Roche-got down to business working with the government to help get medication to the people hardest hit by the illness.

Roche was informed last Friday that swine flu was not resistant to its antiviral drug Tamiflu, which is approved to treat flu types A and B. “We heard from both the World Health Organization and the CDC that Tamiflu was active against the swine flu,” Roche spokesperson Terrence Hurley told 

“When we became aware of the new flu outbreak, we proactively opened discussions with the authorities and contacted the WHO reference laboratory, which is responsible for creating the new seed strains for this strain of the virus,” said GSK spokesperson Sarah Alspach. “At this point, we are awaiting notification from WHO as to whether or not they want us to begin manufacturing a new vaccine.”

Roche explained that there are considerable stockpiles of Tamiflu around the world. “People tend to forget that countries have been stockpiling the drug for many years now,” Hurley said. “In fact, there are 85 countries that have reserves of Tamiflu. Several years ago, Roche donated five million treatment courses to the WHO, which are set to be deployed as soon as they give us the green light.”

The US government also has 50 million treatment courses in its strategic national stockpile, of which 11 million were recently released to individual states. 

Roche sent half a million additional courses of Tamiflu to Mexico, beyond the half million the country already received to help treat the large number of people infected with H1N1. Mexico has become “ground zero” for the disease, with 159 suspected deaths attributed to the flu. Approximately 90 cases have been reported in the US, with only one casualty-a 23-month-old baby in Houston. 

GSK supplied Mexico with 100,000 packs of its antiviral Relenza and an additional 170,000 doses of its seasonal flu vaccine, both of which were requested by Mexican authorities. There is no information available at this time stating that the seasonal vaccine will be affective against the new flu strain. 

“It was a relatively mild flu season, which means there was more stock of Tamiflu in the system than would normally be,” Hurley said. “We have been in constant contact with the US government, and we have plans in place to increase our manufacturing of the drug.”

Tamiflu and Relenza are traditionally given between 24 and 48 hours after flu symptoms are first exhibited. The treatments can also be given as a preventative measure for people close to the patient. 

Organizations like the CDC test antivirals against new strains every flu season. When they became aware of the new strain, they found that both Relenza and Tamiflu could treat the H1N1, albeit on a limited basis. 

Unlike flu vaccines, which are updated annually, the antiviral formulations are consistent and do not change. GSK provides 75 million doses of seasonal flu vaccines annually, and is waiting to hear from the authorities if a new vaccine must be readied for H1N1.

“The health authorities have been very diligent in the US about how to prevent the flu, and I think we are sharing similar messages with our employees about how to watch for symptoms,” Alspach said. “I think at this point, these are the most responsible things we can be doing to prevent the spread of this flu.”

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News Analysis

As the US government weighs its options on whether to commission a vaccine for the new H1N1 strain of influenza, pharma companies gear up for a possible epidemic.

Pharma Steps Up to Help With Swine Flu

In this four-part series, we will discuss the importance and use of post-employment restrictions in the pharmaceutical and biotech industries.  Each part of the series will address a topic of interest, including:   

An      overview of post-employment restrictions 

Tips      on how to draft agreements containing post-employment restrictions to      maximize the protection they can provide for your trade secrets and      goodwill

How      to enforce post-employment restrictions against former employees and their      new employers (who are often direct competitors) 

Alternatives      to certain post-employment restrictions, such as trade secret statutes      and, unfair competition laws 

Part 4: Other Tools Employers Can Use to Protect Their Trade Secrets 

In prior weeks, we have discussed how employers can use agreements containing restrictions on employees’ post-employment activities to protect trade secrets and customer goodwill, there are other means available to employers, including:  

Common law claims of inevitable disclosure and breach of fiduciary duty; 

State statutory claims for theft of trade secrets and unfair or deceptive trade practices; and

Federal statutory claims, such as the Economic Espionage Act of 1996 and the Computer Fraud and Abuse Act.

Employers who do not have agreements containing restrictions on employees’ post-employment activities, or whose agreements are insufficient, may still be able to protect their trade secrets and/or goodwill by bringing one or more of these claims.


    Inevitable Disclosure. To state a claim based on the inevitable disclosure doctrine an employer must show that a former employee: (1) had access to confidential information; (2) is working for or is about to commence working for a competitor of the former employer; and (3) the employee’s new duties and responsibilities will inevitably lead to the disclosure of confidential information.  

Most inevitable disclosure cases follow a familiar path.  An employer brings suit to prohibit its former employee from beginning or continuing to work for one of its competitors.  The former employee may or may not have signed an agreement containing post-employment restrictions and actual misappropriation of trade secrets may or may not have occurred.  Despite this, it is argued that the former employee is working for a competitor in a position identical to or very similar to his or her previous position and that it is impossible for him/her not to disclose or make use of the confidential information previously learned at the original employer.  

Some states permit an inevitable disclosure claim, while others will not.  While such a claim may have a viable way to protect trade secrets in the absence of a formal agreement restricting an employee’s post-employment activities it will require a great deal of specific information to be successful. 

Breach of Fiduciary Duty. Most jurisdictions recognize that employees owe a fiduciary duty to their employers.  If an employee breaches that duty by misappropriating trade secrets and/or goodwill or diverting business opportunities to a third party (i.e. future employer), his/her employer may be able to bring a claim for breach of fiduciary duty.

In the majority of claims, an employer will have to establish that:

 it placed trust and confidence in the employee; 

 the employee violated that trust and confidence in some manner (e.g., by disclosing trade secrets to competitor or by diverting business opportunities away from the employer and to a third party); and

the employee’s actions damaged the employer.

Thus, employers will not be able to bring a breach of fiduciary duty claim simply to prevent a former employee from working for a competitor or calling on customers.  However, a breach of fiduciary duty claim can be a powerful tool if there is evidence that the former employee stole trade secrets or diverted business opportunities while still employed.


    Uniform Trade Secrets Act. Most states have adopted the Uniform Trade Secrets Act (“UTSA”), which prohibits the improper acquisition or disclosure of a trade secret.  The UTSA includes detailed definitions of “trade secret,” and what it means to acquire and/or disclose a trade secret improperly.  

The UTSA is a powerful tool that many employers use when there is evidence that a former employee misappropriated trade secrets during his/her employment or as his/her employment terminated.  Under the UTSA, a claim can be made not only against the former employee, but also against the former employee’s new employer if there is evidence that the new employer knew or had reason to know that its acquisition of the trade secret was improper.

Unfair or Deceptive Trade Practices. Some states maintain statutes that prohibit companies from engaging in unfair and deceptive trade practices.  While many were initially designed for consumer protection, they are also used when one company acquires another company’s trade secrets or goodwill in an unfair or deceptive manner.  An example of this would be conspiring with a company’s employee to leave the company and take trade secrets/goodwill.

These statutes are powerful tools as they allow the aggrieved company to bring a claim against another entity (often a competitor) and because they often provide for an award of multiple damages and attorneys fees following a successful claim.


Though uncommon, there are certain federal statutes protecting trade secrets.  The Economic Espionage Act of 1996 makes stealing, copying or the receipt of a trade secret with the intent to harm the owner and benefit another person or entity a crime punishable by a lengthy prison term and a significant fine.  The Computer Fraud and Abuse Act provides for severe criminal penalties and substantial monetary sanctions in certain circumstances involving the use of computer systems to steal trade secrets.

In the pharmaceutical and biotech industries trade secrets and goodwill are a company’s lifeblood.  Post-employment covenants and related restrictions must be considered vital rather than “nice to haves” for certain employees.  Although developing and enforcing these agreements can require navigating a tricky landscape, it can be done.  In following the steps and guidelines laid out in this series of articles, every company can (and should) take the time and effort to protect their assets.  

The final part in our series on how to draft enforceable post-employment restriction agreements that will protect trade secrets and customer goodwill.

Part 4: Post-Employment Restrictive Covenants

Johnson & Johnson subsidiary McNeil Pediatrics, this week, launched its latest social media endeavor-a Facebook page devoted to adults living with attention deficit hyperactivity disorder.

The site, ADHD Allies (facebook.com/ADHDAllies), works like a traditional Facebook page, but features a bevy of informational tools directed at the 9 million adults suffering from the condition. Topics include organization at work, financial organization, and social interactions during the summer.

“A lot of people think that ADHD is associated only with children, but if you look at the NIH numbers, the estimates for adult ADHD are significant,” said Tricia Geoghegan, a spokesperson for McNeil Pediatrics. “We wanted to provide the same kind of resources in Facebook for the adult population as we have for caregivers.”

This isn’t McNeil’s first jump into social media. Last year, the company launched a Facebook site geared towards mothers of children with ADHD. To date, that site has garnered more than 8,200 fans. However, unlike the site about caregivers, ADHD Allies requires people with the disease to actually come out and announce that they have it. 

“We know that this is a different kind of user engagement,” Geoghegan said. “What we’ve done is try to provide users resources that are different from other sites, and if adults with ADHD see value in this and want to become a fan, then that’s going to be more important to them than anything else.”

McNeil Pediatrics took advantage of Facebook’s new and controversial format, which allows users to include tabbed browsing, comment-wall functionality, and modifiable self-assessment sections. The company wanted to aggregate as much data on ADHD into one location, and also feature articles and personal insights from industry leaders.

“The commenting feature is compliant with J&J’s social media guidelines, which states that all comments must be moderated or post-moderated,” Geoghegan said. “If you go to J&J corporate and look at our YouTube channel or our blog, JNJBTW, they all use the same standard, which is that users can provide comments, but the company can upload them if they meet the posting policy.” 

Ortho-McNeil is reaching out to the adult ADHD segment through the popular social networking site. The plan is to grow followers through education and unbranded information. Pharm Exec takes a look at the new site.

Pharmaceutical Executive-04-30-2009

Pharma Steps Up to Help With Swine Flu

Part 4: Post-Employment Restrictive Covenants

Ortho-McNeil Launches Facebook Site for Adult ADHD