Masimo Moves for Final Judgment, Injunction Against its Former CTO

Masimo and its Cercacor Labs subsidiary moved Monday for a final judgment against former Chief Technology Officer Marcelo Lamego and a permanent injunction barring him from further misappropriating Masimo’s pulse oximetry trade secrets, said their proposed order (docket 8:18-cv-02001) in U.S. District Court for Central California in Santa Ana. U.S. District Judge James Selna’s “finding of facts” ruling Nov. 7 also said Lamego breached his fiduciary duty of loyalty to Cercacor and he violated his employment agreements by keeping confidential information and documents (see 2211170034).

The injunction would permanently bar Lamego and his company, True Wearables, from publishing any patent or patent application that discloses Masimo’s trade secrets, and would prohibit them from selling their Oxxiom pulse oximetry device “in its current form,” said the proposed order.

Selna ruled that because the Masimo trade secrets were "foundational” to the health sensing features in the Oxxiom device, it couldn’t be sold until the trade secrets embedded in the device were removed and “designed around.” He stopped short of assigning ownership of the Oxxiom to Masimo, as Masimo asked, because it was undisputed during trial that the device was designed with many off-the-shelf components.

The proposed order would direct Lamego to return all confidential documents in paper or electronic form to Masimo within 30 days and destroy all remaining traces to those documents on his computer. Lamego would be required to “preserve the confidentiality” of a dozen pending U.S. patent applications, plus any application, foreign or domestic, that depends on them to establish “priority,” said the proposed order. It would bind Lamego to file notices with the Patent and Trademark Office and its foreign counterparts “expressly abandoning” the dozen patent applications “so that they never publish and/or issue,” it said.

Lamego “shall take all steps necessary to prevent publication of any other patent, patent application, document, paper, or presentation” that discloses Masimo’s trade secrets or confidential information, said the proposed order. Within 60 days after the court enters its final judgment and injunction, Lamego would be required to file a notice of compliance certifying to the court that he has “complied with all of its terms,” it said. Each side is responsible for its own attorney’s fees, said the proposed order.