PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 18-1368

_____________

HERAEUS MEDICAL GMBH,

Appellant

v.

ESSCHEM, INC.

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-14-cv-05169)

Honorable Cynthia M. Rufe, U.S. District Judge

_______________

Argued: October 23, 2018

Before: KRAUSE, COWEN, and FUENTES, Circuit Judges

(Opinion Filed: June 21, 2019)
2

Bruce P. Merenstein

Samuel W. Silver

John R. Timmer

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

John Nilsson

Matthew M. Wolf [Argued]

Arnold & Porter Kaye Scholer

601 Massachusetts Avenue, N.W.

Washington, DC 20001

R. Reeves Anderson

Arnold & Porter Kaye Scholer

370 Seventeenth St.

Suite 4400

Denver, CO 80202

Counsel for Plaintiff-Appellant Heraeus Medical 

GmbH

Benjamin P. Gilford

Greenberg Traurig

333 Southeast 2nd Avenue

Suite 4400

Miami, FL 33131

Richard D. Harris [Argued]

Cameron M. Nelson

Gregory E. Ostfeld

Greenberg Traurig
3

77 West Wacker Drive

Suite 3100

Chicago, IL 60601

Mary F. Platt

Fineman Krekstein & Harris

Ten Penn Center

1801 Market Street, Suite 1100

Philadelphia, PA 19103

Counsel for Defendant-Appellee Esschem, Inc.

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

The case before us involves another skirmish in a longrunning, cross-border court battle over the alleged theft of a 

trade secret: Heraeus Medical GmbH’s recipe for its bone 

cement. In this appeal, we consider whether Heraeus’ suit 

against Esschem, Inc.—a company that works as a chemical 

manufacturer for Heraeus’ main competitor—is barred by the 

statute of limitations under the Pennsylvania Uniform Trade 

Secrets Act. At summary judgment, the District Court held 

that all of Heraeus’ claims, including those for Esschem’s 

alleged continuing misappropriation during the three-year

limitations period, are time-barred and entered judgment for 

Esschem. We agree that alleged misappropriations that 

occurred more than three years before Heraeus filed suit are 

time-barred, but because we hold that Pennsylvania applies the 

rule of separate accrual to continuing trade secret 
4

misappropriations, Heraeus may sue for misappropriations that 

occurred within the three-year period before filing. We thus

will reverse in part and affirm in part the District Court’s grant 

of summary judgment.

I. Background1

Heraeus is a German company that develops and 

produces Palacos, a bone cement used to anchor artificial joints 

in joint replacement surgeries. To make Palacos, Heraeus

developed its own particular process to manufacture two key 

components: copolymers known as R262 and R263 (the 

“copolymers”). Biomet also sells bone cement and is one of 

Heraeus’ major competitors in this market. To make its bone 

cement, Biomet uses the same copolymers, which it buys from 

Esschem, a Pennsylvania company that manufactures acrylic 

polymers and monomers.

Heraeus holds trade secrets related to the “overall 

specifications for the . . . bone cement,” including 

 

1 The facts set forth here are drawn from a combination 

of the District Court’s recital of the facts and the parties’ 

submissions on summary judgment. To the extent certain 

background facts appear only in the District Court opinion, we 

note that the District Court appears to have drawn them from 

the complaint, although Esschem indicated it was “without 

knowledge or information sufficient to form a belief” about 

many of those facts. Esschem’s Answer at 1–10, ECF No. 87. 

Nonetheless, because these allegations pertain only to general 

background and Esschem does not take issue with them on 

appeal, we will reference them where relevant.
5

“specifications for [the] copolymers.” App. 81. These trade 

secrets changed hands several times over the years before 

allegedly falling into Esschem’s possession. In 1972, thirteen 

years after Palacos first came on the market, Heraeus entered

into a distribution agreement with Merck, pursuant to which 

Heraeus disclosed its trade secrets so that Merck could “obtain 

and maintain regulatory approval” to distribute Palacos. App. 

84. Merck was also obligated under the agreement to protect 

Heraeus’ trade secrets from disclosure to third parties without 

first obtaining Heraeus’ consent. This arrangement was in 

place until 1997, when Merck and Biomet entered into a joint 

venture that took over the distribution of Palacos. At that point, 

Heraeus agreed to supply the joint venture, and only Merck, 

pursuant to its confidentiality agreement with Heraeus, had 

access to the trade secrets covering the copolymers.

In 2004, however, Biomet acquired Merck’s shares in 

the joint venture, taking over the distribution agreement and, 

unbeknownst to Heraeus, also gaining access to Heraeus’ trade 

secrets. Upon learning of the joint venture’s sale to its 

competitor, Heraeus announced it would terminate the 

distribution agreement in August 2005, but by the time 

Heraeus severed its ties with Biomet, Biomet had already

launched its own competing bone cement—a feat that Heraeus 

alleges its “competitors had failed to do for decades” and that 

it contends has since cost it 50 percent of its market share. 

App. 88. Suspecting that Biomet’s bone cement was created 

using its trade secrets, Heraeus acquired and analyzed samples 

of Biomet’s bone cement in 2005 and discovered that, except 

for “[m]inor discrepancies,” it “w[as] virtually identical to” 

Heraeus’ bone cement and that Esschem was manufacturing

the copolymer components for Biomet. App. 89. 
6

Over the next few years, Heraeus took legal action to 

protect its trade secrets. It filed suit for trade secret 

misappropriation against Biomet in Germany in December 

2008, and shortly thereafter, in aid of that litigation, brought

discovery suits in the United States against both Esschem and 

Biomet.

2

In its discovery suit against Esschem, Heraeus sought

“documents relating to communications between Esschem and 

. . . Biomet . . . regarding the development” of the copolymers. 

In re Heraeus Kulzer GmbH, 2009 WL 2981921, at *3. At the 

time, Heraeus’ theory was that Biomet had “instruct[ed 

Esschem] to manufacture [the copolymers] using Heraeus’ 

highly confidential information and trade secrets.” App. 651. 

After an appeal, this Court ordered expedited discovery from 

Esschem in July 2010. Heraeus Kulzer GmbH, 390 F. App’x 

at 93. Esschem then produced several e-mail chains between 

employees of Biomet and Esschem in which they discussed the 

development of the copolymers. In those chains, all of which 

had been produced to Heraeus by March 2011, Biomet 

employees Dan Smith and Rainer Specht specifically 

“discuss[ed] the specifications for R262 and R263” with 

Esschem employees. Appellee’s Br. 37–38. 

 

2

In re Heraeus Kulzer GmbH, No. 09-MC-00017, 2009 

WL 2981921 (E.D. Pa. Sep. 11, 2009), rev’d by Heraeus 

Kulzer GmbH v. Esschem, Inc., 390 F. App’x 88 (3d Cir. 

2010); In re Application of Heraeus Kulzer for Order Pursuant 

to 28 U.S.C. Section 1782, No. 3:09-CV-183 RM, 2009 WL 

2058718 (N.D. Ind. Jul. 9, 2009), rev’d by Heraeus Kulzer, 

GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011).
7

Discovery against Esschem ended sometime between 

August and December 2011, but discovery and litigation 

against Biomet continued for several more years. In the course 

of the proceedings against Biomet—specifically, in a 

December 2011 deposition—Dan Smith corroborated what the 

e-mail chains had indicated: that Biomet employees were 

“direct participants,” Appellant’s Br. 11 (quoting Sealed App. 

1703) in the development of the copolymers and that “their 

work with Esschem . . . ultimately led to the copolymers 

manufactured by Esschem for use in Biomet’s bone cement,”

id. Heraeus contends it was not until “that time,” i.e., 

December 2011, that it had “sufficient information to believe 

that Esschem had actively participated in the misappropriation 

of [its] trade secrets.” Id. at 12. 

Just short of three years later, on September 8, 2014, 

Heraeus sued Esschem for trade secret misappropriation in the 

Eastern District of Pennsylvania. The complaint included one 

count for misappropriation of trade secrets under the 

Pennsylvania Uniform Trade Secrets Act (PUTSA) and five 

counts for common law claims.3 

Following discovery, Esschem moved for summary 

judgment, arguing that all of Heraeus’ claims were timebarred. Under the PUTSA, a plaintiff has three years from 

when “the misappropriation was discovered or by the exercise 

of reasonable diligence should have been discovered” to bring 

 

3 Those common law claims were: (1) conspiracy to 

misappropriate a trade secret; (2) unjust enrichment; (3) unfair 

competition; (4) tortious interference with economic 

advantage; and (5) conversion.
8

suit. 12 Pa. Cons. Stat. § 5307. Esschem argued that Heraeus 

discovered or should have discovered the alleged 

misappropriations as early as 2005, making its PUTSA claims 

untimely. And because the common law claims were based on 

the same facts as the PUTSA claims and were subject to

statutes of limitations of no more than four years, they were 

also untimely.

In its opposition motion, Heraeus countered that it did 

not discover the necessary facts to sue for trade secret 

misappropriation until “the end of 2011,” and that any dispute 

over when it discovered those facts was an issue of triable fact 

that precluded summary judgment. App. 663. Heraeus also 

urged that continuing misappropriations were subject to the 

separate accrual rule, so that, under the PUTSA, each 

additional use of Heraeus’ trade secrets within three years of 

the filing of the complaint gave rise to a separate and timely 

cause of action.

The District Court rejected both of Heraeus’ arguments 

and ruled that the statutes of limitations had run on its PUTSA

and common law claims. At the very latest, the Court found, 

Heraeus was aware of “the facts supporting its 

misappropriation claims” against Esschem by January 2009. 

Heraeus Med. GmbH v. Esschem, Inc., 285 F. Supp. 3d 855, 

861 (E.D. Pa. 2018). It also held that Esschem’s additional

uses of the trade secrets between September 2011 and the filing 

of the complaint in September 2014 were part of a single and 

time-barred cause of action under the PUTSA because 

Esschem’s continued use of the trade secrets was “nothing 

more than a continuation of the original alleged 

misappropriation.” Id. at 863. Interpreting the PUTSA to 

adopt the separate accrual rule, it reasoned, would “eliminate 
9

the statute of limitations altogether” by allowing Heraeus to 

“sit by for nearly a decade” after learning all facts necessary to 

bring a claim and to obtain damages for the entire period so 

long as one misappropriation took place within the statute of 

limitations.4 Id. On that basis, the Court granted summary 

judgment for Esschem, and Heraeus now appeals.

II. Jurisdiction and Standard of Review

The District Court had diversity jurisdiction under 28 

U.S.C. § 1332(a) and we have jurisdiction under 28 U.S.C. 

§ 1291. Because we are sitting in diversity and Heraeus brings 

state claims, we apply Pennsylvania law to address the parties’ 

arguments related to the PUTSA’s statute of limitations. See

Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 

533 (1949); Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir. 2007)

(citing Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 110 (1945)).

We review the District Court’s grant of summary 

judgment de novo. Faush v. Tuesday Morning, Inc., 808 F.3d 

208, 215 (3d Cir. 2015). To prevail at this stage, the moving 

party must establish that “there is no genuine dispute as to any 

 

4 The District Court correctly identified the tension 

between those jurisdictions that treat continuing 

misappropriations as a single claim and those that treat 

continuing misappropriations as a series of separate 

misappropriations subject to the separate accrual rule. As we 

explain below, however, it was mistaken in conflating the 

effect of the separate accrual rule with the effect of the 

continuing violation doctrine on the statute of limitations. See 

infra Section III.B.2.
10

material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). All facts should be viewed “in 

the light most favorable to the non-moving party,” with “all 

reasonable inferences [drawn] in that party’s favor.” 

Scheidemantle v. Slippery Rock Univ. State Sys. of Higher 

Educ., 470 F.3d 535, 538 (3d Cir. 2006). A factual dispute is 

genuine “if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Discussion

On appeal, Heraeus raisesthe same two arguments it did

below. First, it contends that it did not discover sufficient facts 

to state a claim against Esschem until December 2011, and 

therefore its September 2014 suit fell within the three-year 

limitations period. And to the extent there is a dispute over 

when Heraeus discovered sufficient facts to state a claim, 

Heraeus argues, this is a factual dispute for the jury. Second, 

Heraeus posits that even if the limitations period began to run 

before September 2011, Esschem would still be liable for each

time it used the trade secrets to manufacture the copolymers 

between September 2011 and September 2014 because 

continuing misappropriations under the PUTSA are subject to 

the separate accrual rule. We address these issues in turn.5

 

5 The District Court dismissed Heraeus’ common law 

claims for the same reasons it dismissed its PUTSA claims. On 

appeal, however, Heraeus directs its arguments only to its 

PUTSA claims and thus has waived any challenge to the denial 

of its common law claims.
11

A. The Commencement of the Limitations 

Period

A “limitations period generally begins to run ‘as soon 

as [an] injury is sustained.’” Davis v. Wells Fargo, 824 F.3d 

333, 344 n.13 (3d Cir. 2016) (quoting Mest v. Cabot Corp., 449 

F.3d 502, 510 (3d Cir. 2006)). In Pennsylvania, there are 

several “exception[s]” to this “general rule.” Pocono Intern. 

Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 

1983). One is the discovery rule, which evolved from the 

notion that a limitations period should not “run[] against” a 

plaintiff who is “ignorant of his loss.” Lewey v. H.C. Frick 

Coke Co., 31 A. 261, 264 (Pa. 1895). When the discovery rule 

applies, the limitations period only begins to run once the 

plaintiff is no longer “ignorant of his loss,” id., i.e., once he is 

able to “ascertain the fact of a cause of action,” Pocono, 468 

A.2d at 471. That is not to say the period is suspended until 

the plaintiff has “acquired finite knowledge of all operative 

facts.” Id. (emphasis added). Rather, “[f]or the statute of 

limitations to run, a plaintiff need not know the ‘exact nature’ 

of his injury, as long as it objectively appears that the plaintiff 

‘is reasonably charged with the knowledge that he has an injury 

caused by another.’” Mest, 449 F.3d 502, 510-11 (quoting

Ackler v. Raymark Indus., Inc., 551 A.2d 291, 293 (Pa. Super. 

Ct. 1988)). 

The PUTSA explicitly incorporates the discovery rule. 

Under the statute, a plaintiff has three years to file an action for 

trade secret misappropriation once she “discover[s]” or 

“should have . . . discovered” the misappropriation.6 12 Pa. 

 

6

In full, this provision reads: “An action under this 

chapter for misappropriation must be brought within three 
12

Cons. Stat. § 5307. “Misappropriation,” in turn, is defined in

several ways, but one definition in particular applies here: If, 

as Heraeus contends, Esschem received Heraeus’ trade secrets

not from Heraeus itself, but from Biomet, Esschem could be 

liable for “use of a trade secret of another without express or 

implied consent,” so long as, “at the time of . . . use,” Esschem 

“knew or had reason to know that [its] knowledge of the trade 

secret was . . . derived from or through a person who owed a 

duty to the person seeking relief to maintain its secrecy or limit 

it use.” 12 Pa. Cons. Stat. § 5302(2)(ii)(C). In other words, 

the limitations period would only begin to run once Heraeus 

discovered sufficient facts to make it reasonably aware not 

only that Esschem used Heraeus’ trade secrets without 

Heraeus’ consent, but also that Esschem knew or had reason to 

know that Biomet owed a duty to Heraeus to maintain their

secrecy. Cf. Merck & Co. v. Reynolds, 559 U.S. 633, 637

(2010) (holding that “scienter” is a fact which a plaintiff must 

discover in order for the statute of limitations to begin running 

on a § 10(b) claim under the Securities Exchange Act). 

According to Heraeus, it was not until it deposed 

Biomet’s Dan Smith in December 2011 that it obtained 

sufficient evidence of scienter. Specifically, Heraeus directs 

us to two pieces of information that it asserts gave it notice of 

Esschem’s state of mind: Smith’s testimony (1) that he and 

another Biomet employee were “direct participants” in work 

with Esschem; and (2) that this work with Esschem “ultimately 

led to the copolymers . . . for use in Biomet’s bone cements.” 

 

years after the misappropriation was discovered or by the 

exercise of reasonable diligence should have been discovered.” 

12 Pa. Cons. Stat. § 5307.
13

Appellant’s Br. 11–12. Heraeus contends those concessions

finally revealed that “Esschem knew that Biomet was using 

stolen trade secrets.” Id. at 33.

But the argument proves too much, for if that 

information was sufficient to put Heraeus on notice of 

Esschem’s scienter, then Heraeus was necessarily on notice 

nine months earlier when it came into possession of essentially 

the same information. In a March 2011 discovery production, 

Heraeus received, among other things, a 2004 e-mail exchange 

between Smith and Esschem in which Smith attempted to 

troubleshoot Esschem’s manufacturing difficulties, and, in 

declining to provide more detailed copolymer specifications, 

noted that doing so would disclose non-public information. 

But follow-up e-mails to Esschem from the other Biomet 

employee, Rainer Specht, which Heraeus also received in 

discovery by March 2011, did provide Esschem with those 

supposedly non-public details. And soon thereafter, as 

Heraeus was well aware, Biomet released its competing bone 

cement.

This sequence and the face of these detailed exchanges 

about the copolymer specifications reveal that the very facts 

that Heraeus claims it first learned in the December 2011 

deposition were in its possession by March 2011: (1) “direct 

participat[ion]” by Biomet employees in Esschem’s 

development of the copolymers; and (2) that this participation 

is what “ultimately led” to Esschem’s successful production of 

the copolymers. Appellant’s Br. 11. Moreover, the March 

2011 discovery revealed the additional fact that Esschem had 

reason to believe Specht’s subsequent disclosure of the 

copolymer specifications constituted non-public information, 

i.e., information that was “derived from or through a person 
14

who owed a duty to the person seeking relief to maintain its 

secrecy.” 12 Pa. Cons. Stat. § 5302.7 Thus, the information 

that Heraeus learned through Smith’s testimony was 

duplicative and, if anything, less revealing than the discovery 

it received in March 2011. So, it was March 2011 when the

limitations period began to run and March 2014, three years 

later, when it expired.8

 

7

In a filing below, Heraeus itself touted this logic, 

describing the information in Specht’s later e-mails as “the 

same information that Esschem had previously requested [from 

Biomet] . . . [but] had been told that Biomet could not provide.” 

App. 142.

8 The District Court held, and Esschem argues on 

appeal, that Heraeus had sufficient information to state a claim 

against Esschem at various points between 2005 and 2010, 

such as in January 2009, when Heraeus brought its discovery 

suit against Esschem in the United States. At that time, 

Heraeus sought information from Esschem about its 

communications with Biomet because it believed that Biomet 

had “instruct[ed Esschem] to manufacture [the copolymers] 

using Heraeus’ highly confidential information and trade 

secrets.” App. 651. Esschem maintains that this suspicion was 

enough for Heraeus to bring suit for Esschem’s alleged 

misappropriations. As Heraeus points out, however, without 

evidence that Esschem knew the instructions it was receiving 

from Biomet were derived from Heraeus’ trade secrets, the 

possibility that Esschem was “a total innocent” remained. 

Appellant’s Reply Br. 23. In any event, we need not determine 

whether Heraeus could have stated a claim at some point before 

March 2011 because, outside of any claims that accrued in the 

three-year period before filing, its September 2014 suit was 
15

Heraeus, however, did not file suit until September 

2014—three and a half years later. Thus, any 

misappropriations prior to March 2011 and any that occurred 

between March and September 2011 (which would have been 

discovered as they occurred) are indeed time-barred.

The question remains whether Esschem’s alleged

continued use of Heraeus’ trade secrets between September 

2011 and September 2014 is properly viewed as part of one 

violation that is time-barred in its entirety, as the District Court 

held, or instead as a series of separate misappropriations that

accrued individually and thus were timely asserted. As we 

explain next, the PUTSA provides the answer.

B. The Timeliness of Claims for 

Misappropriation After September 2011

The Pennsylvania General Assembly based the PUTSA 

on the provisions of the Uniform Trade Secrets Act (UTSA). 

But while it adopted most of those provisions, it opted to 

diverge from them in certain instances. One such instance is 

in the treatment of a “continuing misappropriation.” The 

UTSA provides: 

An action for misappropriation must be brought within 

3 years after the misappropriation is discovered or by 

the exercise of reasonable diligence should have been 

discovered. For the purposes of this section, a 

continuing misappropriation constitutes a single claim.

 

untimely even if the limitations period began to run earlier than 

March 2011.
16

Unif. Trade Secrets Act § 6 (Unif. Law Comm’n 1985). In the 

PUTSA, the Pennsylvania General Assembly tracked this 

language nearly verbatim, except that it omitted the final 

sentence, so that Pennsylvania’s statute states simply:

An action under this chapter for misappropriation must 

be brought within three years after the misappropriation 

was discovered or by the exercise of reasonable 

diligence should have been discovered.

12 Pa. Cons. Stat. § 5307. 

The parties view the omission of the final sentence very 

differently. Heraeus argues that the Pennsylvania legislature 

intended “each wrongful use of misappropriated trade secrets 

[to] trigger a distinct limitations period” and that, under this 

separate accrual rule, its claims for misappropriations between 

September 2011 and September 2014 are timely. Appellant’s 

Br. 14. Esschem, on the other hand, defends the District 

Court’s rejection of the separate accrual rule as a rule that 

would nullify the PUTSA’s statute of limitations, and it urges 

that we affirm the denial of Heraeus’ PUTSA claims as a 

single, time-barred cause of action.

As explained below, Heraeus has the better of the

argument. The District Court erred in treating Esschem’s

continued use of Heraeus’ trade secrets as a single 

misappropriation for three reasons: (1) the text of the PUTSA; 

(2) Pennsylvania’s common law rule of separate accrual, which 

provided the backdrop against which the PUTSA was drafted; 

and (3) Pennsylvania’s adoption of the Restatement of Torts,
17

which also endorses the separate accrual rule for continuing 

misappropriations. We address these in turn.

1. The PUTSA Treats Continuing 

Misappropriations as Separate 

Violations Subject to the Separate 

Accrual Rule

a. The Text of the PUTSA

The UTSA, by its terms, treats a continuing 

misappropriation as a single claim, but Pennsylvania, like 

some other states, opted not to enact that particular provision. 

See, e.g., N.C. Gen. Stat. Ann. § 66-157 (North Carolina); Ala. 

Code § 8-27-5 (Alabama). While we do not have the occasion 

to opine on the significance of that omission for other states, 

Pennsylvania’s canons of construction indicate that the 

omission reflects the General Assembly’s intent to apply the 

separate accrual rule to continuing misappropriations.

Pennsylvania law provides that “[t]he object of all 

interpretation and construction of statutes is to ascertain and 

effectuate the intention of the General Assembly.” 1 Pa. Cons. 

Stat. § 1921. A situation like the one here, where the General 

Assembly omitted text from a borrowed statute, offers strong 

evidence of legislative intent. See Fletcher v. Pa. Prop. & Cas. 

Ins. Guar. Ass’n, 985 A.2d 678, 684 (Pa. 2009) (holding that 

“where a section of a statute contains a given provision, the 

omission of such a provision from a similar section is 

significant to show a different legislative intent”). Under the 

“separate-accrual rule,” which we have defined as “[a] 

corollary of the standard rule” for accrual of federal causes of 

action, a continuing misappropriation gives rise to multiple 
18

discrete claims corresponding to each act of misappropriation, 

and “[b]ecause each act violates the law on its own, each act 

separately triggers its own limitations period.” Blake v. JP 

Morgan Chase NA, No. 18-2368, slip op. at 10 (3d Cir. June 

19, 2019). The Uniform Law Commission expressly rejected 

this separate accrual rule in the second sentence of UTSA § 6 

by providing that “a continuing misappropriation constitutes a 

single claim,” i.e., not a series of claims. Unif. Trade Secrets 

Act § 6 (emphasis added). But the Pennsylvania General 

Assembly rejected that second sentence and retained only the 

first when it enacted PUTSA § 5307, indicating that it intended 

to retain the separate accrual rule. See Fletcher, 985 A.2d at 

684.

Esschem, however, asks us to ignore the significance of 

the second sentence’s omission and to imply the General 

Assembly’s rejection of the separate accrual rule into the first 

sentence. But in interpreting a statute, “language should not be 

implied where excluded,” and we will not contravene

legislative intent by reading into PUTSA § 5307 the very 

language that the General Assembly chose to omit. Fonner v. 

Shandon, Inc., 724 A.2d 903, 907 (Pa. 1999). Nor does the text 

of the firstsentence support Esschem’s reading. That sentence, 

which the General Assembly retained, simply specifies when 

the limitations period begins—which is when “the 

misappropriation is discovered” or “should have been 

discovered.” Unif. Trade Secrets Act § 6. It has no bearing on 

whether continuing misappropriations are treated as a single 

claim or multiple claims. That is a separate question that is

addressed by the UTSA’s second sentence, independent of the 

first.
19

The comments to the UTSA reinforce this reading of 

PUTSA § 5307.

9

 The UTSA drafters made explicit that they 

sought in § 6 to achieve two distinct results: (1) to “reject[] the 

continuing wrong approach,” under which “the limitation 

period with respect to a specific act of misappropriation begins 

at the time that the act of misappropriation occurs”—that is, to 

reject the separate accrual rule; and (2) to start the limitations

period upon “discover[y of] the existence of 

misappropriation.” Unif. Trade Secrets Act § 6 cmt. 

Esschem’s argument that the first sentence alone is sufficient 

to achieve both of these results is thus not only atextual, but it 

also renders the second sentence mere surplusage, contrary to 

Pennsylvania’s canons of construction. See Matter of Emps. of 

Student Servs., Inc., 432 A.2d 189, 195 (Pa. 1981).

We decline to adopt Esschem’s reading. Instead, we 

glean from the text of the statutes that the UTSA adopted the 

discovery rule and single-claim treatment for continuing 

misappropriations, and the PUTSA embraced the UTSA’s

discovery rule but declined its single-claim treatment in favor 

of the separate accrual rule.

 

9

“The comments or report of the commission . . . which 

drafted a statute may be consulted in the construction or 

application of the original provisions of the statute” as long as 

those materials were available when the statute was drafted. 1 

Pa. Cons. Stat. § 1939. Since the UTSA was last updated in 

1985 and the PUTSA was passed in 2004, the Uniform Law 

Commission’s comments are properly within the scope of our 

analysis. See Advanced Fluid Sys., Inc. v. Huber, No. 1:13-

CV-3087, 2017 WL 2445303, at *11 n.7 (M.D. Pa. June 6, 

2017).
20

b. Pennsylvania’s Common Law 

Rule of Separate Accrual

That the Pennsylvania legislature intended to follow the 

separate accrual rule is all the more apparent when we consider 

the omission of the UTSA’s second sentence against the 

backdrop of Pennsylvania common law.

As explained by our former Chief Judge Edward Becker

when he sat on the District Court in Anaconda Company v. 

Metric Tool & Die Company, Pennsylvania courts have 

adopted the “property” view of trade secrets, under which the 

basis of a claim for trade secret misappropriation is the 

violation of a property right, in contrast to the “confidential 

relationship” view, under which a misappropriation is based on 

a violation of a duty of confidentiality. 485 F. Supp. 410, 425–

26 (E.D. Pa. 1980).

10

 And the property view provides the 

 

10 See generally Van Prods. Co. v. Gen. Welding & 

Fabricating Co., 213 A.2d 769, 780 (Pa. 1965) (rejecting the 

confidential relationship view and holding that “[t]he starting 

point in every case of [trade secret misappropriation] is not 

whether there was a confidential relationship, but whether . . . 

there was a trade secret to be misappropriated”); Den-Tal-Ez, 

Inc. v. Siemens Capital Corp., 566 A.2d 1214, 1228 (Pa. Super. 

1989) (noting that “Van Products has been construed to have 

adopted the ‘property’ view of trade secrets” and that “[c]ases 

decided more recently than Van Products make it clear that this 

is still the proper focus in a trade secrets case”); see also Moore 

v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 571 (3d Cir. 

2003) (discussing Van Products and its progeny); Sims v. Mack 

Truck Corp., 488 F. Supp. 592, 598 (E.D. Pa. 1980) 
21

theoretical underpinnings for the separate accrual rule: While 

a breach of confidentiality only occurs upon the initial 

misappropriation, and the “fabric of the [confidential] 

relationship once rent is not torn anew with each added use or 

disclosure,” under the property view, a trade secret “is in the 

nature of property[] [and] is damaged or destroyed by the 

adverse use,” such that “each use is a new wrong.” Monolith 

Portland Midwest Co. v. Kaiser Aluminum & Chem. Corp., 

407 F.2d 288, 293 (9th Cir. 1969). It is for that reason, as Judge 

Becker held in applying Pennsylvania’s common law of trade 

secrets, that “the statute of limitations for the tort of wrongful 

use begins to run at the time of the wrongful use, and not at the 

time of the initial misappropriation.” Anaconda, 485 F. Supp. 

at 426. He recognized, in other words, that Pennsylvania’s

common law embraced the separate accrual rule. 

Esschem takes issue with Anaconda’s holding on the 

ground that no Pennsylvania court “ever applied the separate 

accrual rule to common law trade secret claims.” Appellee’s 

Br. 49–50. But Anaconda’s reasoning is sound, and although 

no Pennsylvania court has explicitly discussed this reasoning, 

other courts have, confirming the separate accrual rule’s roots 

in the property view and its incompatibility with the 

confidential relationship view. Compare Underwater Storage, 

Inc. v. U.S. Rubber Co., 371 F.2d 950, 955 (D.C. Cir. 1966) 

(recognizing that use of a trade secret gives rise to a cause of 

action and allowing “suit for any use of the [trade] secret so 

long as the use has occurred within the statutory period of 

limitations immediately preceding the bringing of the action”),

 

(“Pennsylvania cleaves to the ‘property’ view of trade secrets 

law.”). 
22

with Monolith, 407 F.3d at 293 (holding that “[t]he cause of 

action arises but once,” when the confidential relationship is 

breached). As the Fifth Circuit summarized, “[j]urisdictions 

that adopt the ‘breach theory’ of trade secret misappropriation, 

as opposed to the ‘property theory,’ generally do not treat trade 

secret misappropriation as a continuing tort.” Gen. Universal 

Sys., Inc. v. HAL, Inc., 500 F.3d 444, 451 (5th Cir. 2007); see 

also Cypress Semiconductor Corp. v. Superior Court, 163 Cal. 

App. 4th 575, 582 (2008) (collecting cases and noting the 

same). 

We hold today that this common law rule was not 

displaced by the PUTSA. The Pennsylvania Supreme Court 

has long instructed that “provisions in derogation of the 

common law are to be held strictly,” Gibson v. Commonwealth, 

87 Pa. 253, 256 (1878), and that “[s]tatutes are never presumed 

to make any innovation in the rules and principles of the 

common law or prior existing law beyond what is expressly 

declared in their provisions,” Rahn v. Hess, 106 A.2d 461, 464 

(Pa. 1954). The PUTSA “expressly declare[s]” only that trade 

secret misappropriation claims are subject to the discovery 

rule. So by omitting the UTSA’s second sentence, the General 

Assembly in effect codified Pennsylvania common law, 

foregoing the single-claim approach in favor of the separate 

accrual rule and harmonizing the PUTSA with Pennsylvania’s 

property view of trade secrets. Far from abrogating the 

common law rule of separate accrual then, the PUTSA was 

drafted to preserve it.
23

c. Pennsylvania’s Adoption of the 

Restatement of Torts

Our reading of the PUTSA is also in line with the 

approach taken by the Restatement of Torts, which courts in 

Pennsylvania “have generally accepted . . . as the basic outline 

for [Pennsylvania’s] trade secrets law.” O.D. Anderson, Inc. v. 

Cricks, 815 A.2d 1063, 1070 (Pa. Super. Ct. 2003); see Coll. 

Watercolor Grp., Inc. v. William H. Newbauer, Inc., 360 A.2d 

200, 204 (Pa. 1976) (“The standard for determining whether 

one is liable for the use or disclosure of another’s trade secret 

is set forth in the Restatement, Torts, [§] 757 (1939) and in Van 

Products . . . .”); Den-Tal-Ez, Inc., 566 A.2d at 1228 (noting 

the same). The Restatement recognizes a cause of action not 

only for the initial disclosure of a trade secret—the confidential 

relationship view—but also for the wrongful use of a trade 

secret, explaining that a trade secret holder “may be harmed 

merely by the disclosure of his secret to others as well as by 

the use of his secret in competition with him.” Restatement 

(First) of Torts § 757 cmt. c (1939). As we just discussed, harm 

arising from wrongful use is the hallmark feature of the 

property view, and the Restatement embraces this theory by 

providing a cause of action for both disclosure and use of a 

trade secret. Id. § 757. Pennsylvania’s adoption of the 

Restatement, then, lends further support to the conclusion that 

Pennsylvania followed the separate accrual rule for 

misappropriation claims prior to the PUTSA and that the 

PUTSA was deliberately drafted to preserve it.

Ultimately, the General Assembly drafted the PUTSA 

against the backdrop of Pennsylvania’s adoption of the 

Restatement of Torts and its common law rule of separate 

accrual rule for trade secret misappropriation claims, and it 
24

deliberately omitted a sentence from the UTSA that rejected 

the separate accrual rule. Adopting Esschem’s reading of the 

PUTSA, and finding that it eliminated the separate accrual rule, 

requires us to ignore legislative intent along with several 

unambiguous directives from the Pennsylvania Supreme 

Court. As a result, we hold that, under Pennsylvania law, the 

separate accrual rule applies to continuing misappropriations.11

 

11 In so holding, we are mindful of the Philadelphia 

Court of Common Pleas’ decision in WebDiet, Inc. v. 

NutriSystem, Inc., in which it held that the “misappropriation 

of trade secrets is [not] a continuing tort under the PUTSA,” 

using “continuing tort” to refer to the separate accrual rule. No. 

4055 Commerce Program, 2016 Phila. Ct. Com. Pl. LEXIS 

133, at *18–19 (Pa. C.P. Apr. 12, 2016). However, the Court’s 

treatment of this issue is but a few lines long and it relied solely 

on the statement in the comment to § 6 of the UTSA that the 

“Act rejects a continuing wrong approach.” Id. As we already 

discussed, that statement in the comment is tied exclusively to 

the sentence that the General Assembly chose to omit and is 

inapposite to interpreting the text of PUTSA. Sitting in 

diversity, we are “careful to avoid the ‘danger’ of giving ‘a 

state court decision a more binding effect than would a court 

of that state under similar circumstances.’” McKenna v. Ortho 

Pharm. Corp., 622 F.2d 657, 662 (3d Cir. 1980) (citation 

omitted). For the reasons we have discussed, we predict the 

Pennsylvania Supreme Court would find WebDiet similarly 

unpersuasive.
25

2. Esschem’s Arguments to the Contrary 

Are Unavailing

Esschem raises two primary objections to this

application of the separate accrual rule. Neither is persuasive.

First, following the District Court’s lead, Esschem 

argues that applying the separate accrual rule to a claim for a 

continuing misappropriation “would nullify the . . . statute of 

limitations provision.” Appellee’s Br. 41–42. A “continuing 

misappropriation” subject to the separate accrual rule may be 

a “continuing violation” in the colloquial sense, but it is 

conceptually distinct from the “continuing violation doctrine.” 

The District Court appears to have conflated the two.

The “continuing violation doctrine” applies only to a 

narrow class of continuing violations for which courts have 

concluded that a claim accrues over time as a result of a 

“continuing pattern, practice, [or] policy” that is unlawful in 

nature. Havens Realty Corp. v. Coleman, 455 U.S. 363, 381 

(1982); see also Randall v. City of Phila. Law Dep’t, 919 F.3d 

196, 198 (3d Cir. 2019) (“This doctrine applies ‘when a 

defendant’s conduct is part of a continuing practice.’” (citation 

omitted)). In such cases, “[n]o single act may be enough to 

make out a claim[, s]o the statute of limitations runs from the 

last act of the illegal conduct,” and a plaintiff “may sue for all 

acts that make out his claim, even acts that predate the 

limitations period.” Blake, slip op. at 10 (citing Nat’l R.R. 

Passenger Corp. v. Morgan, 536 U.S. 101, 118, 122 (2002)).

The same is not true for continuing violations subject to 

the separate accrual rule, where each violation “starts the 

statutory period running again” and “the commission of a 
26

separate new overt act [within the limitations period] generally 

does not permit the plaintiff to recover for the injury caused by 

old overt acts outside the limitations period.” Klehr v. A.O. 

Smith Corp., 521 U.S. 179, 189 (1997). Because the separate 

accrual rule is sometimes referred to with terminology similar 

to “continuing violation,” see, e.g., Allied Erecting & 

Dismantling Co. v. Genesis Equip. & Mfg., Inc., 805 F.3d 701, 

704 (6th Cir. 2015) (noting that the “‘continuing wrong’ 

approach[] [is] also known as [the] ‘separate-accrual’ rule”), it

is perhaps unsurprising that courts and litigants confuse the 

two, see Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 

671 n.6 (2014) (warning against this exact mix-up); Blake, slip 

op. at 9–11 (describing confusion in the parties’ arguments 

about which doctrine applies).

But the separate accrual rule does not “eliminate the 

statute of limitations altogether” or allow a plaintiff to “sit by 

for nearly a decade and . . . override PUTSA’s three-year 

statute of limitations,” Heraeus, 285 F. Supp. 3d at 863; it 

merely allows the plaintiff to claim as separate 

misappropriations those wrongful uses of a trade secret that 

occurred within three years of the complaint’s filing. The 

three-year statute of limitations thus remains in full force under 

the separate accrual rule—and is far from “toothless,” 

Appellee’s Br. 44.

Second, Esschem contends that Heraeus cannot benefit 

from the separate accrual rule because it did not “assert [in its 

complaint] distinct claims for each new batch of copolymers 

that Esschem has sold to Biomet,” and cannot do so because 

Esschem’s “ongoing sale of products” does not constitute a 

continuing misappropriation. Appellee’s Br. 53. Because the

alleged misappropriation is not a continuing one, the argument 
27

goes, but a singular one with lingering effects, Heraeus’ claim 

is time-barred even under the separate accrual rule. 

Esschem is right that an injury that is “the lingering 

effect[] of past unlawful conduct” is “not a continuing violation 

and . . . thus not actionable in [its] own right.” Elad Peled, 

Rethinking the Continuing Violation Doctrine: The 

Application of Statutes of Limitations to Continuing Tort 

Claims, 41 Ohio N.U. L. Rev. 343, 366 (2015). And though 

we recognize that courts, legislators, and academics may 

disagree on the exact bounds of a continuing violation,12 we 

are persuaded that Esschem’s alleged continued use of 

Heraeus’ trade secrets is within those bounds.

The PUTSA’s broad definition of misappropriation 

includes a trade secret’s “use,” which Black’s Law Dictionary

defines as “[t]he application or employment of something; 

esp., a long-continued possession and employment of a thing 

for the purpose for which it is adapted, as distinguished from a 

possession and employment that is merely temporary or 

occasional.” Black’s Law Dictionary (10th ed. 2014). The 

wrongful use that Heraeus claims against Esschem is not 

merely sales, but the continued employment of Heraeus’ trade 

 

12 See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 

Inc., 550 U.S. 618, 633–37 (2007), abrogated by 42 U.S.C. 

§ 2000e-5(e)(3)(A) (discussing whether, in an employment 

suit alleging decreased pay based on gender, the initial 

employment decision to pay the employee less or the issuance 

of each reduced paycheck was the actionable violation); Peled, 

41 Ohio N.U. L. Rev. at 379–81 (proposing a new framework 

for defining continuing violations).
28

secrets in Esschem’s manufacturing process. Such conduct, if 

proven, is well within the broad meaning of “use” and in line 

with other courts’ understanding of continuing 

misappropriations. See Underwater Storage, 371 F.2d at 951–

52 (use of misappropriated fuel tank designs to create similar 

fuel tanks); Anaconda, 485 F. Supp. at 417–19 (use of a 

machine that was designed based on misappropriated trade 

secrets to produce telephone cord armor); Cadence Design 

Sys., Inc. v. Avant! Corp., 57 P.3d 647, 648–49 (Cal. 2002) (use 

of misappropriated source code to create new software). And 

because the separate accrual rule applies, injuries Heraeus 

suffered due to any such uses after September 2011 are 

actionable under the PUTSA.

IV. Conclusion

For the foregoing reasons, we will reverse in part and 

affirm in part the District Court’s grant of summary judgment 

and remand for proceedings consistent with this opinion.