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Two brothers are asking a Florida court to order Slim-Fast Foods and its parent company, Unilever U.K., to demonstrate that they did not steal their secret formula for enriching ice cream with added nutrients. The brothers’ trade secrets suit was filed last week against Conopco, doing business as West Palm Beach-based Slim-Fast Foods, a division of Netherlands-based Unilever U.K. The brothers, Ron and Arnie Koss, do business out of Montpelier, Vt., under the umbrella of a Hawaii corporation called Nutricopia. The plaintiff company is represented by two powerhouse law firms — Fulbright & Jaworski of Washington, D.C., and the Miami office of Hunton & Williams. Citing the Florida Uniform Trade Secrets Act, the lawsuit in the Palm Beach County Circuit Court seeks enforcement of an agreement signed by Unilever and Slim-Fast that the food company would “positively show” Nutricopia that it developed products with technology it had obtained before Nutricopia made a presentation to both the parent company and its subsidiary. Nutricopia seeks specific performance from Slim-Fast “to make a showing as required under the agreements.” Nutricopia claims that it made a presentation about its enrichment technology to Slim-Fast in West Palm Beach in June 2001. Subsequently, it alleges, Slim-Fast and Unilever released two new food products, a fudge bar and an ice cream sandwich, that apparently use a similar or identical technology, without entering into any agreement with Nutricopia. Slim-Fast allegedly told Nutricopia immediately after its presentation that it had possessed the technology to produce those products prior to the Nutricopia presentation. Slim-Fast has yet to file a response to the lawsuit. Nutricopia is represented locally by Marty Steinberg, managing partner of Hunton & Williams’ Miami office. The firm’s primary lawyer in the action is Gregory B. Wood, a partner at Fulbright & Jaworski in Los Angeles. Such suits are relatively common, according to Clive Burton, a California-based physicist who has served as an expert witness in a number of intellectual property cases. It is normal procedure, he said, for a company that suspects its trade secrets have been stolen despite a confidentiality agreement to sue first for disclosure under that agreement. Then, if those suspicions turn out to have foundation, the company can sue for damages using evidence gained from compliance with the confidentiality agreement. “It’s all you can do,” Burton said. “That’s the standard sort of performance you engage in when you suspect that somebody has behaved badly.” POWERPOINT PRESENTATION According to Fulbright & Jaworski, Ron Koss, who lives in Vermont, is a scientist working in the field of nutritional biology. Arnie Koss is a marketing specialist in Hawaii. They developed their business in nutritional food products out of their efforts to develop nutritional, tasty food for an ill family member. Nutricopia has two patent applications pending for its food technology. Unilever owns a number of ice cream companies, including Ben and Jerry’s Homemade Holdings Inc., a Vermont-based maker of premium ice cream. According to the complaint, Unilever executives studied Nutricopia’s technology and decided it could best be applied to its diet food line, Slim-Fast. At Slim-Fast’s request, the complaint states, Nutricopia made a presentation to Slim-Fast executives in June 2001. It used 28 PowerPoint slides, a summary of the company’s patent applications and specific discussion of “Composite Nutritional Evaluation,” including “brownie bars,” “The Energy Ice Cream” and “Composite Nutritional Evaluation – Bars (Dairy).” According to the complaint, Nutricopia entered into a confidentiality agreement with Unilever in March 2001, prior to the presentation. The suit contends that Unilever “did not possess and had not pursued similar or comparable research in the development of fortified ice cream/frozen dessert products and that prior to disclosure Unilever did not know how to successfully formulate and process sophisticated nutrient fortified ice creams.” Immediately after the presentation, however, “Slim-Fast claimed for the first time that it had a nutrient-fortified dessert product substantially developed and that had already been test marketed,” Nutricopia alleges. “Prior to the time of the disclosure by Nutricopia to Slim-Fast, Slim-Fast had concealed and failed to disclose that it had any nutrient fortified dessert product in development and instead induced Nutricopia to make its disclosure under the belief that Slim-Fast had not been developing such a product.” The suit asserts that the information disclosed during June 2001 presentation is a trade secret under the terms of the Florida Uniform Trade Secrets Act. Nutricopia is asking the court to order Slim-Fast and Unilever to “positively show” that it possessed the technology to create such products before the presentation in June 2001, and that the new fudge bar and ice cream sandwich were not developed with Nutricopia technology. According to the suit, Slim-Fast and Unilever had agreed in separate agreements with Nutricopia in March and in June 2001 to demonstrate that they had prior knowledge of any such enrichment technology apart from Nutricopia’s proprietary techniques. But the plaintiffs say Slim-Fast released the food products that seem to employ technology similar or identical to that which Nutricopia developed — without complying with the request.

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