Fenwick & West partner Jedediah Wakefield.

Pfizer-owned Array BioPharma Inc. has dropped claims that an Eli Lilly subsidiary and a handful of its scientists stole trade secrets.

Array dismissed its claims against Loxo Oncology Inc. on Dec. 27, six months after a Colorado judge denied Array a preliminary injunction that would have blocked the scientists from working at Loxo, and six weeks after the U.S. Court of Appeals for the Tenth Circuit sounded inclined to affirm him.

The resolution concludes, at least for now, a chilly ending to a five-year collaboration between Loxo and Array for the development of targeted cancer drugs. Loxo opened its own lab in the same market as Array in 2017 and hired two of Array's scientists, then added seven more in 2018, just after the collaboration deal expired. Eli Lilly and Co. acquired Loxo in February 2019.

The dismissals also short-circuit an appeal that Array's Quinn Emanuel Urquhart & Sullivan attorneys said raised an issue of first impression: whether the alleged theft of trade secrets can cause irreparable harm even when technology is years from completion and may never come to fruition. Federal and state trade secret laws "cover the threat of misappropriation," San Francisco Quinn partner Charles Verhoeven argued to the Tenth Circuit Nov. 19.

But the Tenth Circuit judges suggested that, while the scientists may have developed knowledge about certain molecules they worked on while at Array, there was little to no evidence they were actually using it at Loxo. Nor had the scientists signed non-compete agreements. "If I'm the scientist, and I think up this deal for company A, and then I leave and go to company B, do I leave half of my brain with company A?" Judge Paul Kelly of the U.S. Court of Appeals for the Tenth Circuit had asked.

Fenwick & West partner Jedediah Wakefield in San Francisco had argued that Array was conjuring purely speculative harm. That's why U.S. District Judge Philip Brimmer of the District of Colorado had issued "a routine denial of a preliminary injunction where the evidence fell short," Wakefield told the court.

In any event, Array, which was acquired by Pfizer Inc. in July 2019, dismissed its claims against Loxo without prejudice and its claims against the nine scientists with prejudice. Loxo, in turn, dropped its claims for a declaratory judgment that no trade secrets were misappropriated.

Along with Wakefield, Loxo's team included Fenwick partners Robert Counihan, Patrick Premo and Adam Gahtan and associates Jeffrey Ware, Kathryn Easterling and Catherine McCord; plus Wilmer Cutler Pickering Hale and Dorr partners Regina Rodriguez and Mary Sooter and associate Matthew Worthington; and senior counsel John-Paul Deol of Dhillon Law Group.