AIPLA Files an Amicus Brief with the Court of Appeals of Virginia in Pegasystems Inc. v. Appian Corporation

Written March 6, 2023

Arlington, VA. March 6, 2023 - The American Intellectual Property Law Association (AIPLA) filed an amicus brief with the Court of Appeals of Virginia in Pegasystems Inc. v. Appian Corporation, an appeal arising from a $2.1 billion verdict and resulting judgment in a trade secret misappropriation case brought by Appian against Pegasystems. 


The brief is not in support of either party as to the ultimate outcome of the appeal, but instead focuses on a question of general interest in trade secret litigation: how should a jury be instructed on burdens of proof regarding damages caused by misappropriation? The trial court instructed on this point using a paraphrased excerpt from the Restatement (Third) of Unfair Competition, stating that the plaintiff’s burden was to prove the defendant’s sales, following which the defendant bore the burden of proving any portion of those sales not attributable to the trade secret. The brief argues that this formulation is ambiguous and incomplete, and that a proper instruction would include a statement that the plaintiff bears the initial burden of proving damages proximately caused by the misappropriation. Absent such clarification, there exists a substantial risk of jury confusion regarding the plaintiff’s burden to demonstrate causation in the first instance. 


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