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Agilent Seeks to Amend Complaint in IP Theft Lawsuit Against Twist Bioscience

NEW YORK (GenomeWeb) – Agilent Technologies has filed a motion to amend an intellectual property theft lawsuit filed more than two years ago against Twist Bioscience and its Founder and CEO Emily LeProust.

In a document filed with the Superior Court of the State of California on Wednesday, Agilent moved for an order allowing it to vacate its first complaint, originally filed in February 2016, and to file in its place an amended complaint containing new and relevant facts unearthed during the discovery process.

Agilent originally filed its complaint against Twist, LeProust, and 20 other unnamed defendants for breach of contract, breach of the duty of loyalty, and misappropriation of trade secrets, alleging that the defendants spent months as Agilent employees laying the groundwork for theft of Agilent IP related to oligonucleotide synthesis before leaving the company and founding Twist.

In its new complaint accompanying Wednesday's motion to amend, Agilent claimed that it recently learned that former employees Siyuan Chen and Solange Glaize, in addition to LeProust, "misappropriated hundreds of documents containing confidential Agilent information, including documents setting forth trade secrets at issue in this case, and took them to Twist." As such, Agilent's amended complaint has named Chen and Glaize as co-defendants.

In addition, whereas the initial complaint alleged that LeProust spent her final 14 months at Agilent developing and perfecting the oligonucleotide synthesis technology that Twist now sells, and even pitched her ideas to venture capitalists, the amended complaint alleges that LeProust, "while serving in a leadership role at Agilent," became CEO of Twist in November 2011 — about a year and a half before she officially left Agilent in April 2013.

Furthermore, Agilent now alleges that Chen and Glaize, who remained as Agilent employees after LeProust's departure, continued to steal IP from Agilent for several months before being recruited by LeProust to leave Agilent and join Twist.

"Despite being on clear notice of the employees' obligations to Agilent to return all Agilent property, Twist employees continued to retain the stolen confidential documents for years, only revealing the theft in discovery responses in 2018," Agilent alleges in its amended complaint.

Furthermore, Agilent alleges, while Twist has denied "using" the documents, "it has been unable to deny accessing the documents after they were stolen and it has refused to provide the underlying forensics and examination of the devices that would show how Defendants came to possess the Agilent confidential documents, when and by whom they were accessed or used and on what devices, when defendants knew they possessed the Agilent confidential documents, and which have been deleted, in the years after they were stolen and they were secretly retained."

Finally, Agilent alleges in its amended complaint that Twist and LeProust hired several other Agilent employees in subsequent months "because of their intimate knowledge of, experience with, and/or access to Agilent's valuable oligo-synthesis technology as well as their institutional knowledge of Agilent's business plans and customer lists to commercialize it."

Prior to departing Agilent to join Twist, several of these employees engaged in "highly suspicious computer activities that indicate even greater theft of Agilent's confidential documents, information, and property," the amended complaint states. A spokesperson for the law firm representing Agilent in the case said in an email that Agilent attorneys are continuing to obtain more information about which IP was stolen and when.

In an email, a Twist Bioscience spokesperson noted that "Agilent's wholesale shift in its allegations, two and a half years into its suit, reveals only the weakness of its claims," and that the new allegations are "gamesmanship, not substance." 

Further, the Twist spokesperson said, Agilent omits from its new complaint "that more than four months before it sought to change its complaint, Twist informed – and provided to Agilent – the irrelevant, passively retained documents referenced by Agilent in its proposed amendment. Discovery also afforded Agilent access to thousands of Twist's technical documents, yet they have been unable to tie any Agilent document or information to Twist's game-changing silicon technology. The fact remains that no Agilent information was used in or affected any aspect of Twist's independently developed technology."

Finally, the Twist spokesperson said that Twist "is confident that Agilent's amended claims, like those preceding them, have no basis in fact or law. We look forward to filing our response to these allegations to set the record straight."

As in its initial complaint, Agilent claims that it has been damaged and will continue to suffer "great and irreparable harm and damage" due to the defendants' use of Agilent's trade secrets, including proprietary developments, "to compete against Agilent in … the gene-assembly, oligo-library, and derivative oligo products markets."

As such, Agilent continues to seek injunctive relief to prevent the defendants from continuing to use the technology they allegedly stole, repayment of all the compensation LeProust received while an Agilent employee, and unspecified compensatory and punitive damages. Agilent also wants the court to set up a trust that would appropriate any profits Twist has made from selling its technology.

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