Friday, January 29, 2010, 1/29/2010 10:15:00 AM

Ammoniated Beef - It's Trade Secrets are What's for Dinner

By Todd

In late December 2009 the New York Times published an article regarding the injection of beef with ammonia to remove potentially deadly E. coli bacteria from the beef. You can find that article here: http://www.nytimes.com/2009/12/31/us/31meat.html?_r=1. The name of the company that pioneered this procedure is Beef Products, Inc.


The problem, according to the NYT, was that government and industry records obtained by The New York Times show that in testing for the school lunch program, E. coli and salmonella pathogens have been found dozens of times in Beef Products meat, challenging claims by the company and the U.S.D.A. about the effectiveness of the treatment. Since 2005, E. coli has been found 3 times and salmonella 48 times, including back-to-back incidents in August in which two 27,000-pound batches were found to be contaminated. The meat was caught before reaching lunch-rooms trays.


The article went on to state: "Presented by The Times with the school lunch test results, top department officials said they were not aware of what their colleagues in the lunch program had been finding for years. In response, the agriculture department said it was revoking Beef Products’ exemption from routine testing and conducting a review of the company’s operations and research. The department said it was also reversing its policy for handling Beef Products during pathogen outbreaks. Since it was seen as pathogen-free, the processed beef was excluded from recalls, even when it was an ingredient in hamburgers found to be contaminated."


Around the same time as The Times' piece went to print, attorneys at the Marler Clark law firm, based in Seattle, sent a formal request to Iowa State University seeking public records related to the research a University professor did on the safety of ammoniated beef. Beef Products then filed a suit seeking a court order against the university to prevent "public records" from being released, which filing you can read if you click on the title to this blog post. Beef Products claims that the Marler Clark request of Iowa State would force Iowa State to disclose trade secrets of Beef Products were the school to comply with the request.


The allegations in the legal pleading include:


"BPI engaged the services of Dr James S. Dickson PhD, in his individual capacity and not as an employee or representative of ISU, to perform certain testing and analysis relating to BPI's patented production and production processes. This included research and development activities, scientific testing in controlled settings with various pathogens that were intentionally introduced into selected specimens which were subjected to processing variations to affirm the integrity of existing BPI patented processes, assessing alternative processes, evaluating new processes, and seeking improvements in existing BPI processes and procedures. The work of Dr. Dickson was performed pursuant to a Non Disclosure Agreement."


The pleading goes on to assert:


"All the work performed pursuant to this independent contractor relationship, including testing, test results, evaluation, assessment, and/or analysis thereof, is proprietary, confidential, constitutes valuable trade secrets of BPI pursuant to law, and any records or documents created as a result thereof are the property of BPI and not ISU. A third party, has requested from ISU materials which would or could include some or all of the confidential, trade secret and proprietary information of BPI as set forth above. The disclosure of said information would disclose and divulge confidential trade secrets of BPI and would cause irreparable injury to BPI for which BPI has no adequate remedy at law. Such disclosure is prohibited by Chapter 22, Code
of Iowa."


We'll keep an eye on this one for you - but it will be important to learn: if the professor at Iowa State was Beef Products' contractor and was not acting in his capacity as an ISU agent in doing so, how did ISU come to obtain the "confidential, trade secret and proprietary information of BPI" such that they be in a position to produce it? Another way of asking this is - how did the trade secrets of a private company get into the possession of a public university with which Beef Products does not claim it has a confidentiality agreement? And, if that information did get into ISU's hands, as opposed to only Dr. Dickson's hands, how is Beef Products going to be able to prove that it used reasonable means to keep the trade secrets actually secret? The answer might lie in the additional allegation that "such disclosure is prohibited by Chapter 22, Code of Iowa." Our cursory research indicates that this is Iowa's public records law. We're certainly not conversant with that law, but the issue remains: how did a private company's trade secrets become a "public record" when the private company's NDA contract was with a state employee but not as a state employee and where no ancillary NDA contract was executed with the public entity (i.e., Iowa State University)?


This battle will be worth watching. Have a nice weekend.

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