Full opinion text
FITZPATRICK, District Judge. Plaintiff Salsbury Laboratories, Inc. (Salsbury) brought the above-referenced diversity action against Defendants Merieux Laboratories, Inc. (Merieux), Donald Hildebrand, and Jack Berg alleging misappropriation of trade secrets (Count One), breach of contract (Count Two), interference with contract (Count Three), and unfair competition (Count Four). Salsbury is seeking permanent injunctive relief, monetary damages, and costs and attorney’s fees. The case was tried before the court sitting without a jury in October of 1987. Following a brief explanation of the history of this litigation, the court will enter its findings of fact and conclusions of law in this matter. I. HISTORY OF THE CASE Salsbury brought this action in July of 1987 alleging that two of its former employees, Defendants Hildebrand and Berg, had misappropriated certain trade secrets of Salsbury and had breached the Patent Assignment and Trade Secrecy Agreements they had signed during their employment with Salsbury. Specifically, Salsbury alleged that Hildebrand and Berg used Salsbury’s confidential and trade secret information to produce a chicken vaccine for Merieux that was almost identical to a vaccine these men had helped develop while they were employees at Salsbury. The court held a hearing on Salsbury’s motion for preliminary injunction on August 6-8, 1987. On August 26, 1987, the court issued an Order finding that Salsbury had established a substantial likelihood of prevailing on the merits at trial, but had failed to establish that it would suffer irreparable harm before trial in the absence of a preliminary injunction. [[]] Based on these findings, the court denied Salsbury’s motion. [[]] The non-jury trial was held on October 1-9, 1987. At the conclusion of the trial, Defendants moved to dismiss those counts of the Complaint alleging breach of contract and interference with contract. Defendants argued that the Patent Assignment and Trade Secrecy Agreements on which these counts were based were invalid and unenforceable under the constitutional, statutory, and common law of Georgia. In an Order dated March 26, 1988, this court found that Iowa law was controlling in determining the validity of these Agreements. The court further found that the Agreements were valid and enforceable under the substantive law of Iowa. [[]] Based on these findings, the court denied Defendants’ motion to dismiss the contract claims. After receiving the court’s ruling on the contract issue, the parties submitted proposed findings of fact and conclusions of law on all claims asserted in Salsbury’s Complaint. The court has carefully considered the parties' submissions and the relevant case law, and issues its ruling as follows. II. FINDINGS OF FACT A. The Parties 1.Salsbury is a leading developer and producer of veterinary products in the United States. Salsbury maintains its headquarters and primary research and development facilities in Charles City, Iowa. 2. Merieux is a small research and development laboratory which maintains its headquarters in Athens, Georgia. Merieux was set up as a wholly-owned subsidiary of Rhone-Merieux Laboratories of Lyon, France, an international developer and producer of veterinary products. [[]] 3. Merieux competes with Salsbury in the production and sale of animal products, including animal vaccines. [[]] 4. Defendant Hildebrand is a former employee of Salsbury. In 1966, Hildebrand began working as a Biologies Production Technician for Fromm Laboratories, Inc., a subsidiary of Salsbury. In 1973, Salsbury transferred Hildebrand to its headquarters in Charles City, and promoted him to Biologies Production Manager. In 1982, Salsbury promoted Hildebrand to the position of Director of Biological Operations, a position he held until November 2, 1984. 5. While at Salsbury, Hildebrand was involved in the development and licensing of numerous veterinary products and vaccines, including MG-BAC, the vaccine that is the focus of this litigation. Hildebrand directed the entire research and development effort concerning MG-BAC, and all personnel involved in this effort reported directly or indirectly to him. [[]] 6. In addition to his involvement with MG-BAC, Hildebrand worked on the development and improvement of a formulation used in freeze-drying live organisms. Salsbury denominated this formulation Stabilizer H (SBH). SBH is used in the production of animal vaccines to store and maintain the seed stock from which the vaccines are produced. [[ ]] 7. During Hildebrand’s term of employment, Salsbury obtained approval from the United States Department of Agriculture (USDA) for the use and development of SBH and MG-BAC. 8. Hildebrand had direct access to Salsbury’s trade secret and confidential information relating to SBH and MG-BAC. He was a key employee at Salsbury and was relied upon to protect and maintain the secrecy of Salsbury’s confidential and trade secret information. [[]] 9. On November 1, 1984, Hildebrand gave written notice that he was resigning from Salsbury and accepting a position as General Manager with Merieux. Because of his position with Salsbury and his access to trade secret and confidential information, Hildebrand was requested to leave Salsbury the same day he tendered his notice of resignation. Hildebrand began working for Merieux two weeks after he left Salsbury. 10. When Hildebrand left Salsbury, he took some documents with him, including certain documents relating to Salsbury’s MG-BAC and SBH. [[]] 11. Defendant Berg is also a former employee of Salsbury. Berg joined Salsbury as the Biologies Production Supervisor in November of 1976. On January 2, 1983, Berg moved to Salsbury’s subsidiary, Fromm Laboratories, to become the Biologies Production Supervisor. In both of these positions, Berg reported directly to Hildebrand. [[ ]] 12. Like Hildebrand, Berg was involved in the initial development of Salsbury’s MG-BAC. Berg had supervisory responsibility for the production of MG-BAC under Hildebrand. [[ ]] 13. As a supervisory employee at Salsbury, Berg was relied upon to protect and maintain the secrecy of Salsbury’s confidential and trade secret information. [[]] 14. In the fall of 1985, Hildebrand recruited Berg to accept a position at Merieux. Hildebrand contacted Berg while he was working for Salsbury and met with Berg twice to persuade him to become the Operations Manager at Merieux. Hildebrand knew of Berg’s experience with the development and production of Salsbury’s MG-BAC, and he testified that he hired Berg to help develop Merieux’ MG bacterin vaccine on an industrial scale. [[]] 15. On January 3, 1986, Berg resigned from Salsbury and joined Merieux as Operations Manager. 16. During their terms of employment with Salsbury, both Hildebrand and Berg signed identical Patent Assignment and Trade Secrecy Agreements that prohibited them from disclosing Salsbury’s trade secret or confidential information at any time during or after their periods of employment with Salsbury. [[]] B. Salsbury’s Development of MG-BAC 17. Mycoplasma gallisepticum (MG) is a bacterium that causes a respiratory disease in chickens, turkeys, and other avian species. MG infections in chickens result in lowered egg-producing ability, fewer and smaller eggs, chickens of reduced quality, and reduced feed utilization. [[]] 18. A bacterin is a vaccine that is made from a killed bacterium or virus. A bacterin fights the disease caused by the live bacterium or virus by causing the body to produce antibodies. [[]] 19. In 1979, Salsbury was asked to produce an autogenous MG vaccine for a single flock of infected chickens in Texas. An autogenous vaccine is made from an inactivated organism that has been isolated from a specific flock of infected birds. In producing this autogenous vaccine, Salsbury combined its own trade secret information with information then available in the public domain. [[ ]] 20. After the autogenous vaccine proved successful in treating the infected flock, Salsbury decided to conduct research and tests in an attempt to produce an MG bacterin vaccine that could be sold on the commercial market. [[]] 21. As Biologies Production Manager, one of Hildebrand’s responsibilities at Salsbury was to oversee the production of autogenous vaccines. Both Hildebrand and Berg did an extensive amount of work in developing the autogenous MG vaccine for the single flock in Texas, and in developing Salsbury’s commercial MG vaccine. 22. Before an animal vaccine may be produced and sold commercially in the United States, the producer is required to obtain a license of approval from the United States Department of Agriculture (USDA). To obtain this license, the producer must submit an application, including a production outline, to the USDA. The production outline is a detailed step-by-step analysis of the method used to produce the vaccine. The outline includes, among other things, an explanation of testing procedures and chemical dosages utilized in making the vaccine. Once production of the vaccine has been approved, the USDA requires the producer to follow the steps of the production process set forth in the production outline, unless amendments to the outline are later approved by the USDA. [CD] 23. On March 5, 1981, Salsbury submitted to the USDA a production outline for its MG vaccine along with an application for a license to produce and market the vaccine. The production outline for Salsbury’s commercial MG vaccine contained a detailed description of the complete process used in developing the vaccine. 24. Eleven months later, after all testing of the vaccine had been completed, the USDA issued a license to Salsbury authorizing the production and sale of the MG vaccine. Thereafter, on May 25,1982, Salsbury introduced its MG vaccine into the marketplace under the name MG-BAC. 25. Salsbury was the first company to produce an MG baeterin vaccine to be sold commercially in the United States. Salsbury’s process for producing MG-BAC had never been used prior to its development by Salsbury. Although certain steps of Salsbury’s process had been used to produce other vaccines, the steps had not, prior to Salsbury doing so, been combined in the same manner as in the MG-BAC process. Consequently, while certain of the individual steps were known to be used in producing vaccines, Salsbury’s process as a whole had never before been followed in producing a commercially-available MG baeterin vaccine in the United States. [[]] 26. After receiving the license to produce MG-BAC, Salsbury continued to conduct a significant amount of research and a number of tests which resulted in many improvements in the production process. In an effort to implement these improvements, Salsbury sought and obtained approval from the USDA for several amendments to its original production outline. Significant improvements were made to the MG-BAC vaccine up to November of 1984 when Hildebrand left Salsbury. [[]] 27. Salsbury was the sole marketer of a USDA-licensed inactivated MG vaccine from 1982 until April of 1987, when Merieux entered the United States market with a competing vaccine. During the time Salsbury enjoyed its exclusive market position in connection with MG-BAC, it had sales in excess of $6.5 million of the product in the United States and $10.0 million worldwide. [[ ]] 28. Although one of the Defendants’ expert witnesses testified that a number of companies could have produced an inactivated MG vaccine from information available in the scientific literature, no other company, with the exception of Merieux, attempted to compete with Salsbury’s MG-BAC until Schering-Plough introduced an inactivated MG vaccine on the market in June of 1987, more than five years after Salsbury first introduced MG-BAC. [[]] C. Merieux’ Development of GALLI-MUNE 29. At the time Hildebrand was contacted about becoming the General Manager at Merieux, he wrote a letter to Dr. Daniel Gaudry, Vice President of Merieux, in which he emphasized his key role in the development of Salsbury’s MG-BAC. Pri- or to employing Hildebrand, Merieux had done no work on developing an inactivated MG vaccine. Shortly after Hildebrand joined Merieux, he proposed that one of the first products Merieux develop be an inactivated MG vaccine. [[]] 30. Hildebrand instructed a young researcher at Merieux, Keith Garrett, to begin work on a MG vaccine under Hildebrand’s supervision. At the time Hildebrand began supervising work on the vaccine, he obtained the [[]] organism, or strain, from [[ ]] and provided this strain to Garrett. [[]] In addition to providing Garrett with the [[ ]] Hildebrand gave Garrett a document which contained the formula for the medium used by Salsbury in its MG-BAC production process. The formula for the medium is like a recipe in that it lists ingredients and the specific amounts of each ingredient used to grow the MG organism. 31. Garrett began his work on Merieux’ inactivated MG vaccine in February of 1985. Garrett performed various experiments on the vaccine through May of 1985. In May, Garrett performed challenge tests on three experimental MG vaccines. Although Defendants contend the challenge tests were successful, none of these experimental vaccines was submitted to the USDA for approval. 32. In September of 1985, shortly before Berg joined Merieux, Hildebrand provided Garrett with a copy of the MG-BAC production outline Hildebrand had taken from Salsbury. Before giving this production outline to Garrett, Hildebrand redacted all references to Salsbury. At some point either before or after he gave Garrett a copy of the production outline, Hildebrand destroyed the original copy he had taken from Salsbury. [[]] 33. On February 4, 1986, at Hildebrand’s direction, Garrett sent a copy of the redacted Salsbury production outline to Merieux’ parent company in Lyon, France, to demonstrate the progress Merieux was making with its MG bacterin vaccine. In addition to the production outline, Garrett provided Merieux’ parent company with the formula for SBH. 34. After Berg joined Merieux, he was given a copy of the redacted production outline. Berg adapted this production outline so that it could be submitted to the USDA along with Merieux’ application for a license to produce an inactivated MG vaccine. Berg was aware that the redacted production outline he had been given was a copy of Salsbury’s MG-BAC production outline. On June 9, 1986, Merieux submitted to the USDA the revised production outline and an application for license. The production outline submitted by Merieux was almost a verbatim copy of Salsbury’s MG-BAC production outline as it existed in November of 1984 when Hildebrand left Salsbury. [[ ]] 35. Merieux considers the process it uses in developing its MG vaccine to be confidential. In the production outline it submitted to the USDA, Merieux claimed that the data, techniques, and methodology used in producing its own MG vaccine are to be considered the “Confidential” information of Merieux. [[]] 36. On March 13, 1987, the USDA approved Merieux’ application and issued Merieux a license to produce an inactivated MG vaccine. Immediately after Merieux received USDA approval, it began selling its MG vaccine on the commercial market under the trademark GALLIMUNE. [[]] 37. After Merieux received its license for the GALLIMUNE vaccine, it sent its parent company a collection of documents entitled “Product Registration Information.” These documents were to be used by the parent company in submitting an application to the French Government for a license to market the GALLIMUNE vaccine in France. Although the parent company has had prior experience with MG vaccines, it has never produced a commercially-available inactivated MG vaccine. Shortly after receiving the “Product Registration Information,” the parent company filed an application with the French Government asking for approval to market the GALLIMUNE vaccine. [[]] 38. Although Merieux initially used Salsbury’s medium to produce its GALLI-MUNE vaccine, after it submitted the application to the USDA, it began research to develop a new medium for GALLIMUNE. Merieux employed Dr. Ta Hsu to develop the new medium. Dr. Ta Hsu conducted various experiments and eventually developed a new medium which Merieux has been using since June of 1987. 39. Merieux gained a significant advantage in the marketplace by relying on Salsbury’s production process to produce GALLIMUNE. Merieux was able to save a great deal of time and money by using Salsbury’s MG-BAC process as a model for the development and production of GALLI-MUNE. [[]] D. Salsbury’s Trade Secret and Confidential Information 40. Salsbury contends that the overall process it uses in making MG-BAC, as well as the fact that it uses certain steps in the process, constitutes the trade secret and confidential information of Salsbury. Defendants contend that the information Salsbury used in developing MG-BAC was well-documented in scientific literature, and therefore, it does not constitute the trade secret and confidential information of Salsbury. (1) The Organism 41. The starting point in developing a vaccine is to identify the specific isolate, or strain, of the virus that is to serve as the antigen in the vaccine. Salsbury used the [[]] strain in MG-BAC. 42. [[]] 43. While at Salsbury, both Hildebrand and Berg worked with the [[]] strain in developing MG-BAC. When Hildebrand began work on an MG vaccine at Merieux, he obtained the [[]] strain from [[]] and suggested to Garrett that he use the [[]] strain in developing Merieux’ MG vaccine. Although other strains are available for use in an MG vaccine, and although Merieux’ parent company has used the [[ ]] and [[ ]] strains in producing MG products, Merieux used the strain in producing GALLI-MUNE. [[]] 44. Salsbury uses [[]] test to identify the MG organism at the beginning of the production process: [[ ]] Although these tests can be found in scientific literature, it is not publicly known that Salsbury uses these [[ ]] specific identification tests in producing MG-BAC. [[]] 45. Both Hildebrand and Berg were aware that Salsbury uses these [[ ]] identification tests in connection with MG-BAC. While other identification tests can be used in the development of an MG vaccine, Merieux uses these [[]] tests in its production of GALLIMUNE. Merieux also uses a [[ ]] identification test not used by Salsbury. (2) The Medium 46. After the specific organism is identified, the producer of a vaccine must develop an appropriate medium within which to grow the organism. The producer must select the specific ingredients and determine the specific amounts of each ingredient to be used in growing the organism in sufficient quantity and quality so that it can be used in a commercial vaccine. [[]] Salsbury used a modification of a proprietary medium which it had developed earlier and used for its [[]] diagnostic product. After this medium proved successful [[]] Salsbury conducted research to modify and improve the [[]] medium for use in the commercial production of MG-BAC. [[]] 87. 47. Salsbury made two significant improvements to its medium between 1982 and 1984; (1) elimination of two ingredients, [[]] that were unnecessary to the growth of the MG organism; and (2) use of [[]] in the medium rather than [[]]. The elimination of [[ ]] resulted in a $100,000.00 per year savings to Salsbury. By 1984, Salsbury had developed a unique, cost-efficient medium for its MG-BAC production process. [[ ]] 48. Although various media in the public domain contain ingredients that are contained in Salsbury’s medium, there is no medium in the public domain that contains the identical ingredients in the identical quantities. [[ ]] 49. Both Hildebrand and Berg were aware of the medium Salsbury was using to produce MG-BAC. When Hildebrand began work on an MG vaccine at Merieux, he gave Garrett a document showing the exact formulation of Salsbury’s medium and told Garrett to order the ingredients listed in the document. Although the testimony at trial indicated that the MG organism would grow in numerous media, Merieux originally used substantially the same ingredients Salsbury used in its medium, in the same amounts. [[]] 50. Defendants produced several witnesses at trial to establish that “it has been well known” for at least twenty years [[ ]]. Although Defendants attempted to establish that this fact was common knowledge in the vaccine industry, Salsbury, one of the leading developers of vaccines in the United States, did not discover this fact until more than two years after it began producing an MG vaccine. Moreover, even though it was supposed to be common knowledge that [[]] were not needed in growing an MG organism, both Hildebrand and Berg used [[]] in their work with the MG-BAC medium at Salsbury. Merieux’ parent company also used [[]] in its MG products. [[ ]] 51. In addition to the formula for the medium, Salsbury cited [[ ]] processes which it considers to be unique to the MG-BAC medium: [[]] to adjust the-pH of the medium [[]]. 52. Merieux utilizes the [[]] processes mentioned in paragraph 51 above in preparing its medium for GALLIMUNE. Although certain defense witnesses testified at trial that it is common knowledge that O- (3) Growth Conditions 53. After the producer identifies the specific organism and develops the appropriate medium, he then must determine what conditions will allow optimal growth of the organism. Salsbury claims that several of the growth conditions it uses in producing MG-BAC constitute the trade secret and confidential information of Salsbury. 54. First, Salsbury adds [[]] to inactivate, or kill, the organism. The addition of [[]] at this rate is only one of several methods that can be used to inactivate an organism. [[ ]] 55. Both Hildebrand and Berg were familiar with Salsbury’s method for inactivating the MG organism. Although other methods of inactivating an organism were available, Merieux chose to inactivate its MG organism by adding [[]]. 56. Second, Salsbury uses [[]] during fermentation to inhibit the growth of organisms other than MG. Salsbury has determined that [[]] is preferable to other available inhibitors. [[ ]] 57. Both Hildebrand and Berg knew that Salsbury used [[ ]] as an inhibitor during fermentation. Among the choices available, Merieux decided to use [[ ]] as an inhibitor in its GALLIMUNE product. [[ ]] 58. Third, as part of the growth process, Salsbury automatically controls the pH of the organism in the fermenter at [[]]• 59. Hildebrand was aware that Salsbury used [[ ]] to automatically control the pH of the organism in the fermenter when producing MG-BAC, and Merieux followed the same steps to control the pH of the MG organism in its fermenter when producing GALLIMUNE. [[]] 60. Finally, Salsbury uses [[ ]] as a means of concentrating the organism after it leaves the fermenter. The purpose of [[]] is to reduce the liquid portion of the formulation. Salsbury determined that [[ ]] fiber ultrafiltration is the most cost effective method of concentrating organisms for its MG-BAC process. [[]] 61. Merieux also uses [[]] to concentrate its organisms. After Merieux decided to utilize this method, it contacted Mr. Kopf, an expert in filtration systems, and asked him to design a [[]] for Merieux. While both Salsbury and Merieux use [[ ]] Salsbury uses a system designed by Romicon, and Merieux uses the system specially designed by Mr. Kopf. [[]] (4) Challenge Procedure 62. After the organism has been prepared for use, it must be tested, or challenged, to determine its potency. Salsbury selected the [[ ]] isolate for use in its challenge tests, grew the challenge culture in a carbon dioxide incubator, and adopted a particular scoring test to establish potency. [[]] 63. Hildebrand and Berg were familiar with the challenge procedure used by Salsbury in connection with MG-BAC, and while at Salsbury they did extensive work on developing a method to carry out the challenge tests. Like Salsbury, Merieux has selected the [[]] isolate for use in its challenge tests, Merieux grows the culture [[]] and Merieux uses the same scoring test to establish potency as does Salsbury. While Hildebrand and Berg contend that an article they authored during their employment at Salsbury has placed Salsbury’s challenge test in the public domain, the court notes that this article describes only the method of performing the challenge test and does not describe how the challenge culture is prepared in the laboratory. [[]] 64. After considering the evidence, the court finds that the specific ingredients and methods referred to in paragraphs 41 through 63 above, as combined by Salsbury in the production of its inactivated MG vaccine, are unique to Salsbury. (5) The MG-BAC Production Process as a Whole 65. In addition to claiming that the individual steps of the MG-BAC process are proprietary, Salsbury also claims that the process as a whole, as reflected in the MG-BAC production outline, constitutes Salsbury’s trade secret and confidential information. Two high-level employees of Salsbury testified at trial that Salsbury has always considered the MG-BAC multi-step production process to be a trade secret of the company. [[]] 66. Defendants’ expert, Dr. Yoder, testified that a trained microbiologist could produce an effective MG bacterin using the methods outlined in his (Dr. Yoder’s) publications. Dr. Yoder has produced an MG bacterin on a very limited scale in his own laboratory. Dr. Yoder further testified, however, that the specific ingredients and the specific amounts of the ingredients in Salsbury’s medium are different from the ingredients and amounts in the medium he employs in his own research, and that Salsbury’s medium cannot be found in the public domain. Dr. Yoder also testified that he was unaware [[ ]]. Finally, Dr. Yoder testified that Salsbury’s ability to scale up MG-BAC to a commercial production level was a significant achievement. Although Dr. Yoder’s publications provided a starting point for Salsbury when it began developing MG-BAC, both the individual steps and Salsbury’s overall production process differ from the steps and method described in Dr. Yoder’s articles. [[]] 67. Defendants introduced into evidence at trial a production outline that had been prepared by Dr. Eleven. Dr. Eleven has worked closely with Hildebrand on various projects, and he consulted with Merieux personnel on the GALLIMUNE project. He agreed to write a MG bacterin production outline for the Defendants’ use at trial. While Dr. Eleven’s outline contains some of the same steps found in Salsbury’s outline, it differs in many respects. Dr. Eleven used a different medium, and in many of the steps, he simply provided various alternatives that could be followed. Dr. Kleven did not indicate which specific methods or ingredients among the alternatives should be used. [[]] 68. Dr. Milward, the individual responsible for the production of all bacterins at Rhone-Merieux, testified that the steps used in Salsbury’s MG-BAC production process are also used in the production of certain bacterins at Rhone-Merieux. Although some steps are followed in the production of almost all bacterins, the specific ingredients and methods used in each step of Salsbury’s MG-BAC process do not exist in the public domain and are unknown to its competitors. [[]] 69. Defendants also relied on the testimony of Mr. Kopf. Mr. Kopf, who was qualified as an expert in the application and design of filtration systems, attempted to provide a narrative outline of the overall production process of an MG bacterin. Mr. Kopf’s testimony was very general and did not begin to address the specifies necessary to produce an MG bacterin. The court seriously doubts that Mr. Kopf could in fact produce an inactivated MG vaccine on a commercial scale, or that he could explain to someone else the details necessary to produce such a vaccine. 70. Defendants also introduced into evidence a MG bacterin production outline prepared by Mr. Dale King. At the time of trial, Mr. King was President of Select Laboratories. He is also the former head of the Research Department at Salsbury. Mr. King testified that Salsbury was a competitor of his company, Select Labs, and that Salsbury’s success in this action would adversely affect Select Labs. Mr. King is a personal friend of Hildebrand, and he agreed to write a production outline especially for use at trial after talking to and receiving certain materials from Hildebrand. Both Mr. King’s social relationship with Hildebrand and his position as a competitor of Salsbury cast some doubt on the trustworthiness of his testimony. Moreover, almost every witness who testified at trial on the subject stated that Salsbury’s medium does not exist in the public domain. Yet in his outline, Mr. King produced a medium almost identical to the one used by Salsbury. It is highly unlikely that Mr. King could have formulated a medium that mirrors Salsbury’s medium solely from information he obtained through the literature given to him. Since Mr. King has never before developed an inactivated MG bacterin, the court is of the opinion that Mr. King received information directly from Hildebrand to help him develop the medium in his outline. Consequently, the validity of Mr. King’s entire production outline is in doubt. [[]] 71. After considering all the evidence in this case, the court finds that the multi-step production process used by Salsbury in its development of MG-BAC does not exist as a whole anywhere in the public domain. [[]] (6) Stabilizer H 72. The final trade secret that Salsbury claims was misappropriated by the Defendants is Salsbury’s formulation for SBH. As noted above, SBH is used in freeze-drying live organisms while they are being stored. See ¶ 6, supra. Salsbury uses SBH in many of its live virus products, but not in the development of MG-BAC. [[]] 73. Hildebrand worked on the SBH formulation while he was employed at Salsbury. When he left Salsbury, Hildebrand took with him a document showing the SBH formulation. Merieux does not use SBH in its GALLIMUNE product, but it has used SBH in storing master seed stock of MG. [[]] E. The Impact of Competition in the Marketplace 74. Salsbury spent more than $1.0 million on researching and developing its MG vaccine. This monetary figure represents at least 14 man-years of Salsbury staff time that has been devoted to this effort. [[]] 75. Salsbury began selling MG-BAC in the United States in 1982. Since MG-BAC was the first commercial product of its kind in this country, Salsbury had full responsibility for developing a market for its inactivated MG vaccine. The testimony at trial indicated that Salsbury spent in excess of $2-4 million in advertising and marketing MG-BAC. [[]] 76. Salsbury’s MG-BAC was the only inactivated MG vaccine being sold in the United States from 1982 to 1987. Two of the Defendants’ experts testified that other developers did not produce a vaccine to compete with MG-BAC because (1) the United States’ market was limited, and (2) the costs associated with producing a MG vaccine were high, “and the possibility of developing [such a vaccine] and selling it at a profit would be somewhat questionable.” Although the United States’ market may be limited, inactivated MG vaccines can be sold worldwide. Indeed, Salsbury had developed an international market for MG-BAC. [[]] 77. Salsbury’s gross domestic sales of MG-BAC totaled $1,174,700.00 in 1983; $1,779,600.00 in 1984; $1,540,000.00 in 1985; and $1,370,000.00 in 1986. Salsbury originally forecasted that its gross domestic sales of MG-BAC in 1987 would be $1,500,000.00. Both Merieux and Schering-Plough entered the market in 1987, however, and Salsbury reduced its original forecast to $1,022,000.00. [[]] 78. From 1982 until July of 1987, Salsbury sold MG-BAC at $92.50 per bottle. In April of 1987, Merieux began selling GALLIMUNE at $80.00 per bottle. In June of 1987, Schering-Plough also began selling its inactivated MG vaccine at $80.00 per bottle. After Merieux and Schering-Plough had placed their products on the market, Salsbury lowered the price of MG-BAC to $85.00 per bottle. [[]] 79. As of the preliminary injunction hearing in August, Merieux had sold 3,445 bottles of GALLIMUNE. If these bottles of MG vaccine had been sold by Salsbury at its original price of $92.50 per bottle, Salsbury’s gross sales would have been $318,-662.50. Since Salsbury’s gross profit margin was 65% at the time Merieux entered the market, Salsbury would have earned approximately $207,000.00 in profit if it had sold all those bottles sold by Merieux. An official from Salsbury testified that for all of 1987, Salsbury lost between $300,000.00 and $500,000.00 in sales due to Merieux’ entry into the market. [[]] 80. As noted in paragraph 78 above, Salsbury was forced to lower the price of MG-BAC by $7.50 per bottle when Merieux and Schering-Plough entered the market. Based on the average number of bottles of MG-BAC Salsbury had sold during the years 1983 through 1987, an official from Salsbury testified that this “price erosion,” which was a direct result of other competitors entering the market, would cost Salsbury between $150,000.00 and $300,000.00 per year for every year the MG vaccine was being sold. This official admitted, however, that both Merieux’ and Schering-Plough’s entry into the market contributed equally to Salsbury’s decision to lower the price of MG-BAC. 81. The testimony at trial also indicated that a number of Salsbury’s own employees have spent several hours in prosecuting this suit. A Salsbury official estimated the “in-house” costs of litigation to be $172,-375.00: $152,375.00 representing the cost of their employees’ time, and $20,000.00 representing travel expenses. 82. An official from Salsbury also estimated its attorney’s fees in prosecuting this action to be $250,000.00. [[]] III. CONCLUSIONS OF LAW A. Jurisdiction 1. The court has jurisdiction over the parties and the action pursuant to the diversity statute, 28 U.S.C.A. § 1332(a) (Supp.1988). 2. Venue is proper under 28 U.S.C.A. § 1391(a) (1976). 3. In a diversity action, the court is bound to apply the substantive law of the state in which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64; 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). 4. The Erie doctrine extends to choice of law questions. Thus, a federal court sitting in diversity must apply the forum state’s conflict of laws rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Gen. Tel. Co. of the Southeast v. Trimm, 706 F.2d 1117, 1119 (11th Cir. 1983). B. Count One: Misappropriation of Trade Secrets (1) The Applicable Law 5. For claims sounding in tort, Georgia follows the traditional rule of lex loci delicti, i.e., the place where the injury occurred. Accordingly, in a tort action, Georgia courts will apply the substantive law of the state where the wrong took place. Baltimore Football Club, Inc. v. Lockheed Corp., 525 F.Supp. 1206, 1207-08 (N.D.Ga.1981); Karimi v. Crowley, 172 Ga.App. 761, 762, 324 S.E.2d 583, 584 (1984). 6. In a trade secret misappropriation case, the lex loci delicti is not the place where the information was learned, but where the tortious act of misappropriation and use of the trade secret occurred. Connecticut Artcraft Corp. v. Smith, 574 F.Supp. 626, 629 (D.Conn.1983). Since the Defendants produced their competing MG vaccine in this State, the court will apply the substantive law of Georgia to Salsbury’s claim for misappropriation of trade secret and confidential information. (2) Liability 7. The Georgia Supreme Court has adopted the definition of trade secret as set forth in 43 C.J.S. Injunctions § 148: A trade secret ... is a plan, process, tool, mechanism, or compound, known only to its owner and those of his employees to whom it must be confided in order to apply it to the uses intended. Thomas v. Best Mfg. Corp., 234 Ga. 787, 789, 218 S.E.2d 68, 71 (1975); Outside Carpets, Inc. v. Indus. Rug Co., 228 Ga. 263, 267, 185 S.E.2d 65, 68 (1971). A trade secret will be protected from disclosure to the owner’s competitor even in the absence of a written agreement. Salsbury II, 735 F.Supp. 1545, 1549 n. 4 (M.D.Ga.1988); Rohm and Haas Co., v. AZS Corp., Civil Action No. 1:85-cv-4337-RCF, pp. 14-15 (N.D.Ga. Mar. 18, 1988); Thomas, 234 Ga. at 789, 218 S.E.2d at 71. 8. To recover under a claim for misappropriation of trade secrets, the plaintiff must show that the defendants adopted and made use of a trade secret which was disclosed by the plaintiff to the defendants in confidence. Rohm and Haas, p. 15; Morton B. Katz & Assoc. v. Arnold, 175 Ga.App. 278, 280, 333 S.E.2d 115, 117 (1985); Wilson v. Barton & Ludwig, Inc., 163 Ga.App. 721, 723, 296 S.E.2d 74, 77 (1982). 9. The burden of proof is on the plaintiff to establish that a trade secret exists and that it is not known in the industry. Eaton Corp. v. Appliance Valves Corp., 526 F.Supp. 1172, 1179 (N.D.Ind. 1981). 10. Under Georgia law, concreteness, Wilson, 163 Ga.App. at 723, 296 S.E.2d at 77, secrecy, Water Serv., Inc. v. Tesco Chem. Inc., 410 F.2d 163, 172 (5th Cir.1969), and value, Vendo Co. v. Long, 213 Ga. 774, 777 102 S.E.2d 173, 175 (1958), are determinative in deciding whether a trade secret exists. 11. Although a trade secret does not require the uniqueness or novelty of a patent, “it must possess at least that modicum of originality which will separate it from everyday knowledge.” Cataphote Corp. v. Hudson, 444 F.2d 1313, 1315 (5th Cir.1971); Salsbury I, 735 F.Supp. 1537, 1542 (M.D.Ga.1987). [10] 12. A process used in manufacturing or developing a product may rise to the level of a trade secret, even if similar products are on the market, as long as the precise method used in the process is not known in the industry. FMC Corp. v. Vareo Int’l, Inc., 677 F.2d 500, 503-04 (5th Cir.1982); Thomas, 234 Ga. at 789, 218 S.E.2d at 71. 13. A unique process which is not known in the industry “can be a trade secret even if all of its component steps are commonly known.” Rohm and Haas, p. 20. In other words, “a trade secret process may be established even if known components are assembled and known techniques are combined to produce a useful process which is not known in the industry.” Id. at pp. 20-21. 14. The likelihood that a process constitutes a trade secret is increased if the process provides the owner with a substantial competitive advantage in the marketplace. See Eaton, 526 F.Supp. at 1180; Plant Indus., Inc. v. Coleman, 287 F.Supp. 636, 640 (C.D.Cal.1968). 15. Based on the evidence presented at trial and the relevant case law of this state, the court concludes that the entire multi-step production process used in developing MG-BAC constitutes a trade secret of Salsbury. This process, in its entirety, does not exist in the public domain. At each individual step of the process, there are a variety of alternatives that could be selected for use. Salsbury, through much research and experimentation, chose specific ingredients, specific amounts of each ingredient, specific methods, and specific ways in which to employ each method, at each individual step in the MG-BAC production process. The combination arrived at by Salsbury has resulted in a unique production process unknown to Salsbury’s competitors or to anyone in the vaccine industry. 16. In finding that the MG-BAC process as a whole constitutes Salsbury’s trade secret information, the court has been persuaded by the fact that Salsbury was the only developer with an inactivated MG vaccine on the market until Merieux began selling GALLIMUNE in 1987. Salsbury introduced MG-BAC in 1982 and enjoyed exclusivity in the marketplace for approximately five years. Merieux had not begun any work on producing an MG bacterin until Hildebrand became General Manager. Soon after Merieux hired Hildebrand and Berg, both of whom had played key roles in the development of Salsbury’s MG-BAC, Merieux introduced an inactivated MG vaccine that substantially mirrored Salsbury’s MG-BAC. Merieux was able to produce its competing vaccine by relying on the multi-step process used by Salsbury in producing MG-BAC. 17. In addition to the overall production process, the court finds that the fact Salsbury uses certain ingredients and methods during each step of its process constitutes trade secret information. Specifically, the court concludes that the fact Salsbury uses the following ingredients and methods, which were used initially by Salsbury and then duplicated by Merieux, constitutes the trade secret information of Salsbury: (1) use of the [[]] strain; (2) Salsbury’s unique medium; (3) use of [[]] to inactivate the organism; (4) use of [[]] as an inhibitor; (5) use of [[ ]] to adjust and control the pH of the organism; (6) use of [[]] to concentrate the organism; and (7) use of the [[ ]] strain, [[ ]] and a particular potency scoring test during the challenge procedure. 18. This court is well aware that trade secrets cease to be trade secrets when competitors duplicate them by “legitimate, independent research.” Thomas, 234 Ga. at 789, 218 S.E.2d at 71. In the instant case, however, the court is convinced that the Defendants did not discover the specific ingredients and methods noted in the preceding paragraph through their own independent research. Instead, after listening to the testimony at trial, this court is persuaded that the Defendants learned of these specific ingredients and methods during their work on MG-BAC at Salsbury. They knew these specific ingredients and methods, as applied in the MG-BAC production process, constituted the trade secret information of Salsbury, but nevertheless used this trade secret information to develop and produce GALLI-MUNE. 19. The court’s conclusion concerning the secrecy of Salsbury’s individual steps is supported by the fact that for each ingredient and method listed in paragraph 17 above, various alternatives were available for use. The evidence indicated, however, that for many of the steps used, the Defendants did not attempt to research available alternatives, but simply employed the ingredients and methods Salsbury had used in its MG-BAC process. For example, before Salsbury used the [[]] strain in MG-BAC, this strain had never before been used in an inactivated MG vaccine sold on the commercial market. When Merieux began developing GALLIMUNE, Hildebrand immediately contacted Dr. Yoder and obtained the [[]] strain. Merieux did not consider using any other strain even though others were available and others had been used by Merieux’ parent company in the development of other MG products. In addition, the evidence at trial clearly established that Salsbury’s medium for growing the organism did not exist in the public domain. Yet Merieux used Salsbury’s unique medium in the initial stages of its production process, and Merieux used Salsbury’s medium as the basis for the development of a new medium. After considering the evidence, the court concludes that the Defendants, in developing a competing MG vaccine, relied on the specific ingredients and methods used in Salsbury’s MG-BAC process, not on independent research. 20. In addition to the overall process and the individual ingredients and methods listed in paragraph 17 above, the court also finds that Salsbury’s production outline for MG-BAC and its precise formulation for SBH constitute the trade secret information of Salsbury. Neither the production outline nor the SBH formulation were in the public domain. Moreover, they were unique to Salsbury and thus unknown to Salsbury’s competitors. Salsbury disclosed the MG-BAC production outline and the SBH formulation to Hildebrand and Berg in confidence, and these men made use of both the production outline and the SBH formulation in their work at Merieux. 21. When an employee leaves his place of employment, he has the right to take with him all the skills he has acquired, all the knowledge he has obtained, and all the information he has received. The employee, however, does not have the right to take the property of his former employer. Rohm and Haas, p. 17; Textile Rubber & Chem. Co. v. Shook, 243 Ga. 587, 590, 255 S.E.2d 705, 708 (1979). Both Hildebrand and Berg worked extensively on MG-BAC during their respective periods of employment at Salsbury. These men became familiar with Salsbury’s trade secret information in connection with MG-BAC, including the specific ingredients and methods employed during each step as well as the overall production process itself. When Hildebrand and Berg began work on an MG vaccine at Merieux, they did not simply apply their generalized skills and knowledge. Moreover, they did not search out scientific literature to learn how to develop an MG vaccine. Instead, both Hildebrand and Berg employed the trade secret information they had obtained while at Salsbury to develop Merieux’ MG bacterin. These men brought more than just their general knowledge, skill, and experience to Merieux. They also brought Salsbury’s property. 22. Defendants contend that they did not misappropriate Salsbury’s trade secret information since some of the steps in the GALLIMUNE production process differ from the MG-BAC production process, and since certain of these steps represent improvements over the MG-BAC process. This argument is unavailing. One who misappropriates the trade secrets of another is liable if the technology used is substantially derived from the owner’s trade secret information. In re Innovative Constr. Systems, Inc., 793 F.2d 875, 887 (7th Cir. 1986); Rohm and Haas, p. 21. As noted above, these Defendants substantially derived the GALLIMUNE production process as a whole, and the individual steps, from Salsbury’s MG-BAC production process. Therefore, the fact that a very limited number of steps may differ in minor ways does not relieve the Defendants of liability. 23. Based on these findings, and after observing the witnesses at trial and considering all the evidence, the court finds that Merieux, Hildebrand, and Berg misappropriated Salsbury’s trade secrets in developing a competing inactivated MG vaccine. Salsbury disclosed its trade secret information concerning MG-BAC to Hildebrand and Berg in confidence. Hildebrand and Berg then adopted and made use of Salsbury’s trade secret information for the benefit of themselves and Merieux. Consequently, Defendants are liable to Salsbury on Count One of the Complaint. (3) Injury 24. “There is no power, the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, ... than the issuing of an injunction.” Truly v. Wanzer, 46 U.S. (5 How.) 141, 142, 12 L.Ed. 88, 88 (1847). Although an injunction will not be granted to one who has an adequate remedy at law, see Sires v. Luke, 544 F.Supp. 1155, 1166 (S.D.Ga.1982) and Lawrence v. Lawrence, 196 Ga. 204, 205, 26 S.E.2d 283, 286 (1943), injunctive relief may be appropriate to prohibit the disclosure of one’s trade secret information. Thomas, 234 Ga. at 789, 218 S.E.2d at 71. 25. To recover lost profits, the plaintiff must show that such lost profits are traceable to the defendant. Marco Publications, Inc. v. Southern Airways, Inc., 139 Ga.App. 808, 808, 229 S.E.2d 664, 665 (1976). The plaintiff’s lost profits also must be shown with reasonable certainty to be recoverable. See Summerfield v. DeCinque, 143 Ga.App. 351, 351, 238 S.E.2d 712, 714 (1977) (discussing future lost profits). 26. Where the trade secret of the owner has not been destroyed through publication, the owner is entitled to recover damages in an amount that represents the benefits, advantages, or profits the defendant has gained by using the owner’s trade secret. Univ. Computing Co. v. LykesYoungstown Corp., 504 F.2d 518, 538, reh’g denied, 505 F.2d 1304 (5th Cir.1974); Biodynamic Technologies, Inc., v. Chattanooga Corp., 658 F.Supp. 266, 270 (S.D.Fla. 1987): Robert B. Vance & Assocs, Inc. v. Baronet Corp., 487 F.Supp. 790, 800 (N.D. Ga.1979). While calculating a measure of damages that represents the benefits, advantages, or profits gained by the defendant may be difficult, mere uncertainty should not preclude the plaintiff’s recovery. Univ. Computing Co., 504 F.2d at 539. Where it is necessary, the court should employ “a flexible and imaginative approach to the problem of damages.” Id. at 538. 27. In certain cases, Georgia law authorizes an award of punitive damages if actual damages have been assessed. See Faircloth v. Greiner, 174 Ga.App. 845, 846, 331 S.E.2d 905, 907 (1985). The relevant Georgia statute provides in pertinent part: In a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff. O.C.G.A. § 51-12-5(a) (Supp.1988). A plaintiff may recover punitive damages if the evidence shows willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference on the part of the defendant. Wammock v. Celotex Corp., 835 F.2d 818, 821 (11th Cir.1988). In a misappropriation of trade secrets case, punitive damages can be awarded where the acts of the defendant are “calculated,” “deliberate,” “reprehensible,” or committed with the knowledge that they are unlawful. Sperry Rand Corp. v. A-T-O, Inc., 447 F.2d 1387, 1394-95 (4th Cir.1971), cert, denied, 405 U.S. 1017, 92 S.Ct. 1292, 31 L.Ed.2d 479 (1972); accord Zoecon Indus, v. American Stockman Tag Co., 713 F.2d 1174, 1180 (5th Cir.1983). 28. Georgia statutory law also provides that a court may award attorney's fees if “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense____” O.C.G.A. § 13-6-11 (Supp.1988). “Bad faith” in this section “refers to the transaction out of which the cause of action arose,” and not the defendant’s conduct in defending the case. Cade v. Roberts, 175 Ga.App. 800, 800, 334 S.E.2d 379, 380 (1985). 29. Salsbury asks this court to permanently enjoin the Defendants from further using or disclosing any of Salsbury’s trade secret or confidential information, in particular, that trade secret and confidential information dealing with MG-BAC and SBH. Salsbury’s request for injunctive relief includes two different categories: (1) a request to enjoin the Defendants from disclosing Salsbury’s trade secret and confidential information to anyone in the future; and (2) a request to enjoin the production and sale of GALLIMUNE since it was developed through the use of Salsbury’s trade secret and confidential information. The court finds that enjoining the further disclosure of Salsbury’s trade secret and confidential information is warranted; however, the court will not enjoin the Defendants from developing and producing GALLIMUNE in the future. 30.In support of its conclusion, the court notes that at least one other competitor, Schering-Plough, through its own independent research, developed a vaccine to compete with MG-BAC. The evidence at trial also indicated that other competitors, both in the United States and abroad, are either working on their own inactivated MG vaccines or have the capability to introduce such vaccines into the marketplace. Because of Schering-Plough’s entry into the market, Salsbury no longer is the sole producer of a commercially-available MG vaccine. This fact weighs against issuing an injunction that would prohibit Merieux from ever developing or producing a competing vaccine. 31. In addition, even though the Defendants used Salsbury’s trade secret and confidential information in producing GALLI-MUNE, the court finds that the Defendants are potentially capable of developing a competing product of their own in ways other than through the exact duplication of Salsbury’s product. The Defendants could draw on their own resources, as well as those of the parent company, to produce a competing vaccine. Although GALLI-MUNE was not produced through legitimate, independent research, Schering-Plough’s product is evidence that a competing product can be produced absent the knowledge and use of Salsbury's trade secret and confidential information. 32. The court does find, however, that the Defendants should be permanently enjoined from disclosing any of Salsbury’s trade secret or confidential information which is now in the Defendants’ possession, or to which the Defendants have access. The court recognizes that it is unlikely the Defendants would disclose such information since the information has been incorporated into the GALLIMUNE production process which the Defendants believe constitutes their own trade secret and confidential information. Nevertheless, this Order will make clear that the Defendants are prohibited from ever disclosing, in any manner, any of Salsbury’s trade secret or confidential information. 33. In connection with SBH, the court hereby permanently enjoins the Defendants from disclosing the formulation for SBH to any other party. Moreover, since the evidence indicated that no other company is using SBH, the court will permanently enjoin the Defendants from using SBH in any manner. 34. In addition to a permanent injunction, Salsbury is seeking monetary damages and attorney's fees in the amount of $7,129,375.00 plus interest. Specifically, the damages can be categorized as follows: i)$207,000.00 in lost profits; ii)$500,000.00 due to price erosion; iii)$5,000,000.00 in lost investments, including research, development, advertising and marketing costs; iv)$1,000,000.00 in punitive damages; v)$172,375.00 for “in-house” costs of this litigation; and vi)$250,000.00 in attorney’s fees. The court will address each category of damages below. 35. The testimony at trial established that Merieux sold 3,445 bottles of GALLI-MUNE through August of 1987. The testimony also indicated that if Salsbury had sold the bottles purchased by the customers of Merieux, it would have earned approximately $207,000.00 in profits from those sales. It is reasonable to conclude that if Merieux had not entered the market, Salsbury would have sold over 3,000 more bottles of MG-BAC during 1987. Although Schering-Plough entered the market in June of 1987, it was a newcomer to the market and likely would have had few sales in its first two months. Moreover, the lost profits calculated through August of 1987 do not include the bottles sold by Merieux subsequent to August of 1987. Although it is not possible to calculate lost profits in this case to the exact penny, the court concludes that Salsbury can trace lost profits on at least 3,445 bottles of MG vaccine directly to Merieux with reasonable certainty. Accordingly, the court will award Salsbury $207,000.00 in lost profits. 36. Salsbury contends that it will lose $150,000.00 to $300,000.00 a year as a result of the “price erosion” of its product that occurred when Merieux began selling GALLIMUNE at $80.00 per bottle in April of 1987. In June of 1987, however, Schering-Plough also began selling a competing vaccine at $80.00 per bottle. The presence of two competing products on the market forced Salsbury to lower its price. Schering-Plough’s entry into the market at $80.00 per bottle was legitimate. On the other hand, Merieux was able to produce its vaccine at a lower price and gain an early entry into the market because it made use of Salsbury’s trade secret and confidential information. This early entry into the market at $80.00 per bottle represented an advantage for Merieux and forced Salsbury to lower its prices sooner than it would have if only Schering-Plough had entered the market in 1987. Consequently, Salsbury should be awarded damages for the injury it suffered as a result of Merieux’ early entry into the market. 37.Although “price erosion” is difficult to calculate, mere uncertainty should not preclude an award of damages for Salsbury. Univ. Computing Co., 504 F.2d at 539. Salsbury lowered its price in August of 1987, four months after Merieux introduced GALLIMUNE and two months after Schering-Plough introduced its MG vaccine into the marketplace. The court finds that if Merieux had not entered the market in April, Schering-Plough’s entry would not have forced Salsbury to lower its price until December of 1987, six months after the single, new competitor entered the market. Since Salsbury lowered its price in August, Merieux’ wrongful entry into the market caused Salsbury to lower its price five months before it otherwise would have. An official from Salsbury testified that Salsbury lost between $150,000.00 and $300,000.00 per year as a result of lowering its price to match the competition. Assuming Salsbury would have lost $250,000.00 per year as a result of its lowered price, the court finds that Merieux’ early entry into the market resulted in a loss to Salsbury of approximately $104,165.00 in 1987. Accordingly, the court will award Salsbury $104,165.00 in damages for “price erosion” resulting from Merieux’ wrongful early entry into the market. 38. Salsbury also contends that Merieux wrongfully took advantage of the $1 million Salsbury expended in researching and developing an MG vaccine, as well as the $2-4 million Salsbury expended in developing a market for an MG vaccine. Salsbury seeks reimbursement in the amount of $5 million. The court agrees that Merieux wrongfully took advantage of the time and money Salsbury had expended in developing and marketing an MG vaccine. The court notes, however, that Salsbury has benefitted and continues to benefit from the time and costs it expended in producing and marketing MG-BAC. Consequently, Merieux should not be required to reimburse Salsbury for the entire $5 million. 39. As in the situation involving an award of damages for “price erosion,” an award of damages representing the advantage Merieux wrongfully received in using the benefits of Salsbury’s prior research, development, and marketing strategies is somewhat difficult to calculate. This uncertainty, however, should not preclude an award of damages for Salsbury. After thoroughly considering the evidence, the court finds that Salsbury should be reimbursed in the amount of $750,000.00 for the wrongful use of its research and development advances, and in the amount of $250,-000.00 for the wrongful use of its advertising and marketing strategies. 40. During the time Hildebrand and Berg were at Salsbury, much research and testing was conducted to improve MG-BAC. The evidence is replete with documents showing the results of testing and experimentation that resulted in significant improvements to the vaccine. One improvement alone, the elimination of [[]] from the medium, resulted in a savings of over $100,000.00 per year to Salsbury. Hildebrand and Berg took advantage of this testing and experimentation when they began working on an MG vaccine at Merieux. Moreover, this court is of the opinion that Merieux took advantage of many of the advertising and marketing techniques being used by Salsbury when Merieux prematurely entered the market. Merieux should be required to reimburse Salsbury for the wrongful use of its advertising and marketing strategies. Accordingly, the court awards Salsbury $1 million in damages as the result of Merieux’ wrongful use of Salsbury’s research, development, advertising, and marketing efforts. 41. Salsbury also seeks $1,000,-000.00 in punitive damages. Punitive damages should be awarded to punish, penalize, or deter a defendant, not as compensation to the plaintiff. O.C.G.A. § 51-12-5.1(c) (Supp.1988). After viewing the witnesses at trial and considering the evidence, the court finds that the Defendants’ conduct warrants an award of punitive damages. Specifically, Defendant Hildebrand purposefully took documents from Salsbury which he knew contained Sal