A Colorado federal judge has just made it a little tougher for biopharma companies to get pretrial injunctions based on trade secret allegations.

Judge Philip Brimmer on Wednesday turned away Array BioPharma's attempt to immediately stop nine former employees from working with former collaboration partner Loxo Oncology Inc. Without evidence that the partnership has produced a drug ready for clinical trials, there were no grounds for an injunction. “Irreparable harm that may occur years in the future, and certainly not before a trial on the merits, does not warrant injunctive relief,” Brimmer wrote.

The decision handed an early win to Eli Lilly and Co. subsidiary Loxo and its attorneys at Fenwick & West and Wilmer Cutler Pickering Hale and Dorr.

Loxo and Boulder, Colorado-based Array struck a five-year collaboration deal in 2013 to develop targeted cancer drugs. Loxo opened its own lab in Boulder in 2017 and hired two of Array's scientists, then added seven more last fall after the deal expired.

Array and its Quinn Emanuel Urquhart & Sullivan counsel accuse Loxo of misappropriating the know-how on which Array built its drug discovery business. They sought to enjoin Loxo from letting the employees continue to work on “the subject matter of Array's trade secret programs and platforms.” Array is also represented by Polsinelli.

Loxo replied that it retains exclusive rights under the deal to continue the collaboration work, and that Array was attempting to manufacture non-compete agreements where none exist. It also argued that Array hadn't made a case for imminent or actual harm.

Brimmer ruled for Loxo following a June 11 evidentiary hearing. Although Array submitted evidence of a “very far advanced” compound, it did not show that Loxo has developed a drug based on Array's trade secrets “that is ripe for clinical trials, that such drug will soon be submitted for FDA approval, or that such drug is soon to hit the market.”

In the uncertain world of drug development, “a remote possibility of future injury is not enough.”

Fenwick partners Jedediah Wakefield and Robert Counihan and associate Jeffrey Ware represented Loxo at the June 11 hearing along with Wilmer partner Regina Rodriguez. Fenwick partner Patrick Premo is also counsel to Loxo.