A plaintiff with a trade secret claim is often put in the precarious position of deciding when to bring its claim, balancing considerations of statutes of limitations issues with sufficient pre-filing investigation. The Federal Circuit recently clarified that waiting to obtain enough facts to prove (versus plausibly allege) a trade secret claim can be fatal to the claim itself.

In Insulet Corp. v. EOFlow, Co., 176 F.4th 1347 (Fed. Cir. 2026), the court faced a scenario where competing companies designed and manufactured adhesive, wearable insulin patch pumps. As with many trade secret claims, the case involved the hiring of Plaintiff’s employees by the Defendant and allegations of misappropriation for the benefit of their new employer. As it relates to the timing of bringing the action, Plaintiff alleged these actions occurred between March and May 2018, but waited to bring suit until August 2023 despite a three-year limitations period.

Both parties moved for summary judgment on the limitations issue. The district court agreed with Plaintiff that the Merck standard applied, i.e., that the statute begins to run when a plaintiff actually discovered or should have discovered the underlying facts. Defendant had argued for an “inquiry-notice” standard, i.e., that the limitations period begins to run when the plaintiff or a reasonably diligent plaintiff would have begun an investigation that would allow it to discover facts of misappropriation.

The Federal Circuit reversed. In a divided decision, the Federal Circuit agreed with Defendant. Essentially, the court held that a plaintiff may rely on circumstantial evidence to establish access to the trade secrets and similarities between those secrets and the accused product. Ruling that Plaintiff had sufficient knowledge to make its allegations of misappropriation in at least March 2019, the Federal Circuit held that the limitations period expired and reversed the district court’s decision, including a significant jury award and entry of permanent injunction.

Based on this ruling, parties should contact experienced intellectual property counsel upon learning of a possible trade secret misappropriation.

Zac Davis is an intellectual property attorney at Malloy & Malloy whose practice primarily focuses on intellectual property litigation and disputes. He also assists clients with trademark and copyright prosecution matters, in addition to helping protect their valuable trade secrets. Mr. Davis is based in the firm’s Miami office, but is available to meet clients in any of the firm’s offices in Miami, Boca Raton, Jacksonville, Orlando, or Tampa.