[00:00:00] Speaker 02: Thank you, Your Honors, and good morning. [00:00:03] Speaker 02: May it please the Court, I'm Michael Byrne for Appellant XP Power. [00:00:08] Speaker 02: In this case, the trial court made a series of significant errors that require a new trial on liability or at minimum substantial changes to the court's final judgment on remedies. [00:00:18] Speaker 02: Although there are a number of issues to cover, we'd like to start with the liability issues and first with what both parties agree to be the court's erroneous jury instruction. [00:00:27] Speaker 02: whereby it turned an important element of a DTSA claim into an affirmative defense by placing the burden on the wrong party with respect to the issue of whether comments information was readily available by proper means. [00:00:40] Speaker 02: This is a good place to start because unless this is the rare case in which that instructional error is found harmless, the error would require a new trial on trade secrets D&E and make it unnecessary to decide many of the other issues. [00:00:49] Speaker 03: Can you walk us through how this happened? [00:00:52] Speaker 03: Because it's... [00:00:55] Speaker 03: It's sad and unfortunate that we get to a, I mean there's not enough trials as there are and then you do it and this is a pretty basic error. [00:01:04] Speaker 03: How did this happen? [00:01:05] Speaker 02: Yeah, happy to talk through it. [00:01:08] Speaker 02: So before trial both sides are submitting preliminary jury instructions and it's not unusual in trade secret cases like this for a plaintiff to before trial maintain both a state trade secret law claim and a federal trade secret law claim. [00:01:25] Speaker 02: And what usually happens over the course of the case is that they will drop one of those claims and only go to the jury with one of those claims to avoid confusing the jury by the fact that there might be slight differences between state and federal law. [00:01:38] Speaker 02: And so early in the case, the parties are submitting preliminary jury instructions, but recognizing that they likely are going to have to change when, you know, if or when the issues are reduced to either the federal or the state trade secret claim. [00:01:53] Speaker 02: And that's basically what happened when the Comet dropped its California trade secret claim. [00:02:01] Speaker 02: The court at ER 850 and 851 of the record said, this is probably a surprise to XP, and it's going to make a difference to our jury instructions. [00:02:10] Speaker 02: And so I'm going to let both parties do is go off and tell me, how does the fact that Comet is dropping its California trade secret claim [00:02:17] Speaker 02: how does that affect the jury instructions? [00:02:19] Speaker 02: And so both parties went off, submitted in writing explanations of how the jury instruction should change, and both parties told the court that the current sort of preliminary jury instruction needed to be changed to reflect the fact that under the DTSA, whether information is readily available by, I'm sorry, readily ascertainable by proper means is an element of the DTSA claim, not an affirmative defense. [00:02:45] Speaker 02: Notwithstanding that both parties told the court that that needed to happen and be reflected in the jury instructions, the court, without explanation, overruled both parties' filings and proceeded to keep it in his defense. [00:02:59] Speaker 03: But you objected, because that's one of the arguments, is this was invited error. [00:03:04] Speaker 02: Yeah, no, I mean, we filed written objections. [00:03:06] Speaker 02: So I would point to ER 850, 851. [00:03:08] Speaker 02: The court asked for parties to submit written objections. [00:03:11] Speaker 02: And then its decision, I think, is at ER 36, where it explicitly says what filings, what objections is overruling our written objections. [00:03:22] Speaker 02: Specifically, I think it's at 131, explained that the language needed to be changed to reflect that it was an element of the claim, not an affirmative defense. [00:03:32] Speaker 02: So you have this error. [00:03:34] Speaker 02: The court has overruled both parties' objections. [00:03:37] Speaker 02: And unfortunately, it now goes to the jury that way. [00:03:44] Speaker 02: So the only other arguments that they make with respect to this, they try and suggest that this is harmless for two reasons. [00:03:50] Speaker 02: The first is that they say, well, don't worry about this erroneous instruction, because there's another instruction that was given in the case, which is jury instruction 18. [00:03:59] Speaker 02: And they say that instruction was [00:04:04] Speaker 02: you know, sufficiently complete and fairly and correctly covered the substance of the applicable law. [00:04:10] Speaker 02: The problem with that is that if you look actually at their filings below, ER 133, they specifically objected to instruction 18 as it was ultimately given to the jury specifically for the reason that they said that it was incomplete because it did not instruct the jury on the readily ascertainable element of the DTSA claim. [00:04:31] Speaker 02: So they recognized that that instruction was incomplete and didn't get the information to the jury. [00:04:39] Speaker 02: The final argument that they tried. [00:04:41] Speaker 03: Although that was not accepted by the district court. [00:04:43] Speaker 03: I mean, are you arguing sort of an unclean hand? [00:04:48] Speaker 03: I mean, they said it was incomplete, but it overruled that, so it could have concluded that it was complete and thought that this covered that. [00:04:58] Speaker 02: Well, the district court clearly didn't think that, because the district court [00:05:01] Speaker 02: believe that it was appropriate to instruct the jury separately on whether there was readily ascertainable information. [00:05:08] Speaker 01: They do seem to have different definitions. [00:05:10] Speaker 02: They are differently defined. [00:05:12] Speaker 02: The Ninth Circuit and the Chung case recognize that these are different elements of the claim, and Congress obviously made the decision to ask separately about what is... So why don't you get to the factual harmless error? [00:05:21] Speaker 02: Yeah. [00:05:22] Speaker 02: So the final piece that they argue about is harmlessness. [00:05:27] Speaker 02: This is one, first of all, recognize that they abated the burden to show harmlessness here. [00:05:32] Speaker 02: And I think this court has explained in the Carvalho case and in the Blade Room case that these kinds of errors are rarely going to be harmless because who bears the burden of proof is so fundamental to how the jury thinks about things. [00:05:47] Speaker 02: And here, with respect to the facts, they don't dispute [00:05:50] Speaker 02: that we put in evidence that speaks to whether this information was readily ascertainable by proper means. [00:05:56] Speaker 02: There was testimony from our expert about the fact that the core component of trade secret E was something that was in an AE match system. [00:06:06] Speaker 02: I pointed to 741 of the record where he talks through. [00:06:09] Speaker 02: This is the kind of thing you could open up [00:06:11] Speaker 01: And figure out some evidence so but you know is it more likely than what's the standard is more likely not probably than not yeah, so for me what's most material is they put evidence saying that it's not rest It's not readily ascertainable because nothing presented in the evidence show that the whole architecture of of these trade secrets and I haven't seen anything on the on the other side saying that there was and [00:06:37] Speaker 02: So let me be happy to address that. [00:06:39] Speaker 02: So first of all, with respect to sort of what the trade secrets are, there's a lot of vagueness, I think, in the way the plaintiffs, and this is not unusual in a trade secret case in terms of how to characterize a trade secret. [00:06:51] Speaker 02: But it is certainly the case that what was presented to the jury as the core of what trade secret E and D were, respectively, the Forex sensor with respect to trade secret E, and then this brain bug architecture with respect to trade secret D. [00:07:05] Speaker 02: there was definitely evidence that we put in the record that suggested that both of those things could be readily ascertainable, either from looking at the AE match or from looking at publicly available patent information. [00:07:16] Speaker 02: And I think what you have to conclude on this is, you know, their response is essentially that, well, yes, maybe you could, I mean, I don't take them, I think in their brief they come pretty close to saying, yes, it's possible that [00:07:27] Speaker 02: you know, perhaps the components of these trade secrets would have been, you know, readily ascertainable. [00:07:32] Speaker 02: You could have figured out. [00:07:33] Speaker 01: Right. [00:07:34] Speaker 01: That's how I see it. [00:07:34] Speaker 01: You might have put something that the components are out there, but nothing explains how it all works together. [00:07:38] Speaker 01: Right. [00:07:39] Speaker 01: Right. [00:07:39] Speaker 01: And so that is not readily ascertainable. [00:07:42] Speaker 02: Yeah. [00:07:42] Speaker 02: And so I think two things that I would say about that. [00:07:44] Speaker 02: I mean, first of all, right. [00:07:45] Speaker 02: So they basically said, well, maybe the what would have been in a relic, but not the why. [00:07:50] Speaker 02: I don't think there's any way that you can conclude from the record and the jury's verdict that the jury would have reached the same outcome if it had been properly instructed on the burden to prove and concluded that [00:08:01] Speaker 02: Yes, the components are readily ascertainable, but the strategy behind why particular components were chosen. [00:08:08] Speaker 01: OK, do you concede then that your site put no evidence on this architecture strategy or the why? [00:08:14] Speaker 02: Well, we certainly aren't suggesting that by opening up an AEMatch, you could figure out why Comet made the choice. [00:08:20] Speaker 01: So there is a mismatch of evidence. [00:08:22] Speaker 01: So the way I see it, they brought broader evidence of readily ascertainable, and you brought narrower evidence. [00:08:29] Speaker 02: Well, I think what I would say is that the core of the trade secret, and even the way that they packaged the core of the trade secret to the jury, was again, and we talk about this in our reply brief is, it was the components, right? [00:08:39] Speaker 02: They're not saying that, hey, what's the trade secret here is why we chose these components, because ultimately, when you're selling a product, right, what's important is like, how does the product work? [00:08:49] Speaker 02: What does the product do? [00:08:51] Speaker 02: It's not, why did we make that choice or what testing have we done separately with respect to that product? [00:08:56] Speaker 02: whether or not that's valuable to them, the trade secret here is, you know, the proposed trade secret is this architecture and the sensor, the components. [00:09:05] Speaker 02: And that's, I think, there's no question that we put in evidence that goes to that. [00:09:08] Speaker 01: But you would need to know why in order to build that. [00:09:11] Speaker 02: No, no. [00:09:11] Speaker 02: I think the testimony was that basically we would, that first of all, you'd be able to open the box. [00:09:18] Speaker 02: And again, I'd go to 741 for this. [00:09:20] Speaker 02: You could look at the components, understand where they were, and then build your own to match it. [00:09:25] Speaker 02: And we also have tested. [00:09:26] Speaker 02: We talked about this. [00:09:27] Speaker 01: But was there any evidence that that's what happened? [00:09:30] Speaker 01: That they looked at what's readily ascertainable, then figured out the why, the architecture? [00:09:35] Speaker 02: So that wouldn't be. [00:09:37] Speaker 02: So two things. [00:09:38] Speaker 02: First of all, that wouldn't be the relevant legal question. [00:09:40] Speaker 02: It's not about whether we actually did it. [00:09:42] Speaker 02: It simply wouldn't have been readily ascertainable. [00:09:44] Speaker 02: So in other words, you're figuring out is it a trade secret as opposed to. [00:09:49] Speaker 01: So it's not relevant whether or not that's actually how you came up with [00:09:52] Speaker 02: Right. [00:09:53] Speaker 02: That's a separate question because that goes to whether there's misappropriation. [00:09:56] Speaker 02: So in other words, if we had put in evidence, hey, we in fact did this, then the jury could have concluded, OK, well, you got it by proper means, and so we're not going to have to deal with it. [00:10:08] Speaker 02: But I would say as to this that there is evidence, and we pointed to this in our reply brief, that it's not just that we said, hey, you could figure out the locations of these components. [00:10:19] Speaker 02: We also said, [00:10:20] Speaker 02: someone who's skilled, a regular engineer, could look at those components and understand why they were where they were, what they were doing, why the information was used. [00:10:28] Speaker 01: Was this issue readily a big issue in closing? [00:10:32] Speaker 02: It was presented in closing. [00:10:34] Speaker 02: I think one place, if I'm not mistaken, was 1064, if I'm not mistaken, where he says something like, [00:10:45] Speaker 02: You heard anyone that buys a product can open it up, do with it whatever they want. [00:10:48] Speaker 02: Therefore, one can open up a match, look at the components. [00:10:52] Speaker 02: So what does that mean? [00:10:53] Speaker 02: It means that Comet's alleged trade secrets are also readily ascertainable. [00:10:56] Speaker 02: So there are other places too, but that's enough to show that this was something that was certainly before the jury. [00:11:02] Speaker 02: So we think on that issue, it's clear that there's an error, and you should reverse. [00:11:08] Speaker 02: And I will point out that just as in the Blade Room case, where they found an instructional error in reverse, [00:11:13] Speaker 02: They thought it was helpful to decide a few other issues that would be helpful for the court on remand. [00:11:18] Speaker 02: And so the one issue I would point you to specifically would also be helpful to provide some guidance to the court is on this evidentiary issue, the second issue that we present in our briefs. [00:11:30] Speaker 02: So as to that, the court deprived us of the ability to put in significant material evidence that showed that the core of what Comet alleged to be the trade secret [00:11:42] Speaker 02: was actually information that was taken from a third party, advanced energy. [00:11:48] Speaker 02: And this was significant evidence. [00:11:50] Speaker 02: This was testimony from the person who was ultimately found to have taken this information from Comet to XP, where he's saying, with respect to the 4X sensor diagram, yeah, this is something that I did at AE. [00:12:07] Speaker 02: It's his resume showing that he worked on Forex sensors at AE. [00:12:12] Speaker 04: So that issue is very well developed in your briefs. [00:12:14] Speaker 04: I wonder if we could ask you about another issue that might need to be addressed or might helpfully be addressed if we need to remand this. [00:12:23] Speaker 04: And that has to do with this question about awarding damages and a permanent injunction. [00:12:29] Speaker 04: Because you seem to think that if the plaintiff gets an injunction, they can't get damages. [00:12:37] Speaker 04: Am I oversimplifying that? [00:12:39] Speaker 02: No, I think in this particular case. [00:12:42] Speaker 04: Okay, what makes it special about this case? [00:12:44] Speaker 02: Yeah. [00:12:45] Speaker 04: Because it starts to sound like a license to use the trade secrets. [00:12:50] Speaker 02: Right. [00:12:51] Speaker 02: No, understand. [00:12:52] Speaker 02: So a couple things to say about it. [00:12:54] Speaker 02: So the injunction, I think the court recognized here, and if you look at ER 11, where the court enters its decision, it says that, you know, what an injunction does in a case like this is it basically puts the [00:13:07] Speaker 02: defendant in the place that they were before entering into the trade secret misappropriation. [00:13:15] Speaker 02: And the reason why that is, is because the injunction is preventing us from using in any way or any of the trade secret information that we were found to have taken from comment. [00:13:27] Speaker 02: Can't use it to develop new products, can't use it in any other ways. [00:13:32] Speaker 02: This is a case where the trade secrets that we were alleged to have taken were supposedly taken for the purpose of developing new products. [00:13:41] Speaker 02: We never actually got to market with a new product. [00:13:44] Speaker 02: So this information was never actually used. [00:13:46] Speaker 04: Is that fact critical to your argument about either damages or an injunction? [00:13:53] Speaker 02: It is, because where the nature of the damage is, is essentially that [00:13:58] Speaker 02: that you have benefited from the fact that you've gotten a head start, where there's essentially, it's agreed, both parties agree, there was no damage to a Comet. [00:14:07] Speaker 02: Comet never suffered any loss, there was no competitive harm, nothing was revealed to the market about its trade secrets. [00:14:14] Speaker 02: So this was purely unjust enrichment damages from the idea that we got the benefit of a head start. [00:14:20] Speaker 04: But once an injunction is entered that prevents us... [00:14:24] Speaker 04: Please help me understand the textual basis for your argument in the Defense of Trade Secrets Act. [00:14:30] Speaker 02: So I don't think there's a dispute that you can't have double recovery under the Trade Secrets Act. [00:14:38] Speaker 04: As a general principle, that's going to be true, but we usually think about that in terms of damages. [00:14:42] Speaker 04: So can you point me to the textual basis for saying that in this case, it's damages or an injunction? [00:14:51] Speaker 02: You're saying the textual basis in the statutory language. [00:14:56] Speaker 02: I guess the best thing that I could point you to is that in the Uniform Trade Secrets Act, which is what the Defend Trade Secrets Act is based on, there is language, and I doubt this is in the statute itself, it might be in the comments from the drafters, but that says [00:15:11] Speaker 02: you know, basically where you have an injunction and damages for the same period, don't mix. [00:15:17] Speaker 04: Not for the same period, okay. [00:15:20] Speaker 04: But again, I'm looking for federal statutory language that we're applying here that would support your, frankly, kind of improbable proposition. [00:15:33] Speaker 02: I don't think it's improbable at all. [00:15:34] Speaker 02: This is exactly what the Second Circuit held in the Centel case, and it's not so much an issue of [00:15:39] Speaker 02: the statutory language. [00:15:40] Speaker 02: I mean, everybody agrees that both injunctions and avoided cost damages are available under the DTSA. [00:15:46] Speaker 02: The issue is that, you know, I think it's pretty well established that you can't have a double recovery. [00:15:51] Speaker 02: And the point, I think, is that if you have an injunction that – and by the way, we – I'm taking your answer to be no, there is no such statutory language. [00:16:00] Speaker 04: Yeah, no, I certainly – Yes, no, which? [00:16:04] Speaker 02: You just said, yeah, no. [00:16:06] Speaker 02: Which is the answer? [00:16:07] Speaker 02: Again, we're not relying on any language in the statute. [00:16:11] Speaker 02: Thank you. [00:16:11] Speaker 02: Yeah. [00:16:12] Speaker 02: We're relying on the fact that double recovery is something that is generally impermissible. [00:16:16] Speaker 02: And here, this isn't some trap that we put them into. [00:16:22] Speaker 02: They got damages in this case. [00:16:25] Speaker 02: They then sought an injunction. [00:16:26] Speaker 02: And we said, look, if you award an injunction here that takes away the benefit that was the foundation of our unjust enrichment award, [00:16:34] Speaker 02: then you will be in a situation where there's double recovery. [00:16:37] Speaker 02: And again, this is what the Second Circuit found in this Intel case. [00:16:41] Speaker 02: And at this point, they've had the benefit of that injunction at this point. [00:16:45] Speaker 02: We had to spend significant amounts of money. [00:16:48] Speaker 04: What does that mean? [00:16:49] Speaker 04: significant amounts of money. [00:16:51] Speaker 04: I mean, I can't point to a dollar amount in the record, but... Since you're comparing it to damages, it would be useful if there were something more specific than significant. [00:17:00] Speaker 02: Yeah. [00:17:01] Speaker 02: I mean, let me be clear, Your Honor. [00:17:03] Speaker 02: I'm not suggesting that the amount of money that we spent in complying with the injunction is greater than the amount of money that's at issue that they received in terms of compensatory damages. [00:17:15] Speaker 02: All I'm saying is that [00:17:16] Speaker 02: At this point, they've had the benefit of the injunction. [00:17:19] Speaker 02: We've been prevented from doing anything with these materials. [00:17:24] Speaker 04: allow for a damage award and just vacate the injunction going forward. [00:17:28] Speaker 02: I think the problem at this point is that at this point that wouldn't take away the problem of double recovery because they would have already had the benefit of three years from the injunction and we can't get back those. [00:17:39] Speaker 04: It's an extraordinary theory for the wrongdoer but let me ask you one other thing I wanted to make sure. [00:17:47] Speaker 04: You're not seeking at this point to revive the unclean hands defense are you? [00:17:52] Speaker 04: No we're not. [00:17:53] Speaker 02: And I'm just recognizing my time, so I'm going to reserve the remainder of my time, if I may. [00:17:57] Speaker 02: Thank you. [00:17:57] Speaker 02: Okay, thank you. [00:18:20] Speaker 00: Mr. Wilcox. [00:18:21] Speaker 00: Thank you, Judge Nelson, and may it please the court, Jason Wilcox on behalf of Comet. [00:18:26] Speaker 00: I agree this is an unfortunate situation that we find ourselves in because of the jury instruction, but it's a situation that's entirely of XP's own making. [00:18:34] Speaker 00: And in the version of events that you just heard from XP's counsel, they left off the end of the story, which I think is critical here, which is after they made their written objection, there was then the critical moment just before instructing the jury [00:18:48] Speaker 00: where the district court came in and held the actual charge conference and said, I want to give you a chance to make sure I don't make any errors before we instruct the jury. [00:18:56] Speaker 00: That's at 979 of the record excerpts. [00:19:00] Speaker 00: Comet then stood up and objected again to this instruction and to it being on the verdict form that was broken out separately. [00:19:06] Speaker 00: They would have readily ascertainability as a question for the jury because we viewed it as being subsumed within the independent economic value. [00:19:14] Speaker 00: The district court then turned to XP and said to XP, [00:19:18] Speaker 00: I don't want to make your argument for you, but I understand that you've argued in favor of readily ascertainable as a defense in this case. [00:19:26] Speaker 00: And I'm turning to you and I want to make sure you want this instruction and you want the jury to be asked about it. [00:19:30] Speaker 00: And they said, yes, and it's appropriate under the DTSA. [00:19:35] Speaker 00: I think that makes this case indistinguishable. [00:19:37] Speaker 04: It does not, because the choice the court was giving the defense was between a bad instruction and no instruction, not a correct instruction. [00:19:49] Speaker 04: And I, for one, am wondering how you could make your invited error argument without noting the change in position that you all made with respect to the California claim versus the federal claim. [00:20:04] Speaker 04: I didn't see that in your argument about invited error. [00:20:07] Speaker 04: Did I miss it? [00:20:07] Speaker 00: So it was definitely in the background section of the brief where we pointed out that that is the evolution of events and what happened. [00:20:13] Speaker 00: And we pointed out in our argument section that, yes, there was the California and the federal claim that were together in the case. [00:20:19] Speaker 00: And then when we decided to drop that at the urging of the district court and of XP to streamline the case for the jury, there was then the objection that they made. [00:20:29] Speaker 00: But then there was this colloquy that happened with the district court. [00:20:31] Speaker 00: And I don't think the district court was putting them in a bad situation. [00:20:33] Speaker 00: Again, I think this is like Lorienti, where this court rejected that argument and said they weren't put to that choice. [00:20:39] Speaker 00: They could have proposed to the district court, I understand, [00:20:43] Speaker 00: that you're making this instruction, we think that you need to make an important correction to the instruction because it gets the burden of proof wrong. [00:20:48] Speaker 00: But if you're not going to do that, then we don't need to run the instruction. [00:20:50] Speaker 04: They had already counseled. [00:20:51] Speaker 04: They had already made that argument an objection, correct? [00:20:54] Speaker 00: Yes, and that's correct. [00:20:55] Speaker 04: And it had been repeated. [00:20:56] Speaker 04: And it had been overruled by the court, correct? [00:20:59] Speaker 04: Correct. [00:21:00] Speaker 04: Were they required to repeat it to avoid invited error at that point? [00:21:05] Speaker 00: Lori Yente says yes. [00:21:06] Speaker 00: That's exactly what happened in Lori Yente. [00:21:08] Speaker 00: That's at 6-11, or sorry, [00:21:10] Speaker 00: Lorienti is, yeah, 611 F3rd 544, where what had happened is there had been a written objection, and then the instruction came up again at the charge conference, and a party sat silently by and didn't raise that, hey, we still think this instruction is wrong, and this court said it was invited air to do that. [00:21:27] Speaker 00: And it also said they weren't put to the Hobson's choice of accepting a bad instruction. [00:21:30] Speaker 03: That doesn't seem to be exactly what happened here, because they still did object, but then he asked them, [00:21:36] Speaker 03: Again, I guess your point is when they didn't re-raise the objection after he asked for clarification, that was invited error. [00:21:45] Speaker 00: Yes, exactly. [00:21:46] Speaker 00: It's at that moment that it's invited error. [00:21:48] Speaker 03: What's ironic about this is you'd also raised objections to the jury instruction before. [00:21:54] Speaker 03: I mean, I don't want to be callous here, but sort of this, it's like you're sitting at council table saying, well, we know this is wrong, but we're just going to take a risk that this is invited error. [00:22:08] Speaker 03: And I don't know if that was really going through your heads at the time, but that's a big risk to take. [00:22:14] Speaker 03: I mean, you got to, what are we talking about? [00:22:16] Speaker 03: $60 million, $57 million judgment here. [00:22:23] Speaker 03: that rests on, I mean, in hindsight, would you have done this differently and said, hey, you know what, let's just get this right. [00:22:31] Speaker 03: Let's get the law right on this. [00:22:32] Speaker 00: Because you knew it was wrong. [00:22:33] Speaker 00: We knew it was wrong, which is why from the very first time this instruction came up, we objected. [00:22:38] Speaker 00: I understand. [00:22:39] Speaker 03: But then why didn't you stand up and say, I mean, there are some errors that are just so fundamental. [00:22:45] Speaker 03: It's like it doesn't benefit you to have some technical argument at the end of the day. [00:22:52] Speaker 03: Get it right if you want to maintain a $57 million judgment, because you're in here making a very technical argument that you knew could have been prevented yourself. [00:23:04] Speaker 00: And we did try to prevent it, even at the charge conference. [00:23:06] Speaker 00: If you look at pages 979 to 980 of the record excerpts, which is where we are making our charge conference, we stood up again and told the district court, we don't think that this should be broken out on the verdict form. [00:23:16] Speaker 00: We don't think it should be in the instructions. [00:23:18] Speaker 00: because we think it's wrong. [00:23:19] Speaker 00: It's going to risk possibly having inconsistent verdicts if you have the jury get in the same instruction twice between the independent economic value instruction and this instruction. [00:23:28] Speaker 00: So we did stand up again. [00:23:29] Speaker 01: Well, that's a different argument. [00:23:30] Speaker 01: I thought you were objecting to it having the argument at all, not whether or not the burden was on the right side. [00:23:36] Speaker 00: At the charge conference? [00:23:38] Speaker 00: Yes. [00:23:38] Speaker 00: Now, throughout the case, if you look at every objection that we made, every time before the charge conference, we pointed out consistently [00:23:46] Speaker 00: It gets the burden of proof wrong. [00:23:48] Speaker 00: It's not an affirmative defense under the DTSA. [00:23:50] Speaker 00: And every time XP objected and said, no, no, this is the instruction we want. [00:23:55] Speaker 04: Can I ask you? [00:23:56] Speaker 04: You were referring to a case called Lorienti a moment ago. [00:24:00] Speaker 04: Yes. [00:24:00] Speaker 04: Is that cited in your briefs? [00:24:02] Speaker 00: It is. [00:24:02] Speaker 00: I can get you up the page in a second. [00:24:04] Speaker 00: I don't have it handy. [00:24:05] Speaker 00: But it was cited in our briefs. [00:24:07] Speaker 00: The main reason I know that is I wouldn't have found it if I wasn't in our briefs. [00:24:11] Speaker 04: Well, I thought I have these open, and I'm looking [00:24:15] Speaker 04: Well, I'd appreciate it at some point if you'd let us know what that is. [00:24:19] Speaker 00: Yeah, maybe what I can do, and I understand this is a little bit unorthodox, but when they do the rebuttal, maybe I can just stand up, and the only thing I will say after the rebuttal is where we cite it, just to get you that citation. [00:24:30] Speaker 00: That would be helpful. [00:24:30] Speaker 00: Or my colleague will look for it while I'm up here, so maybe we can short-circuit that. [00:24:33] Speaker 00: But turning, it's apparently on, thank you very much, my friend on the other side pointed out it's on page 26 of our brief. [00:24:43] Speaker 03: Okay. [00:24:43] Speaker 03: Thank you. [00:24:44] Speaker 00: And again, the site for that 611 F3rd 544. [00:24:46] Speaker 00: So turning to harmlessness, and in particular, the evidentiary issue. [00:24:52] Speaker 01: Yeah, that's what I'm concerned about. [00:24:53] Speaker 00: Yes. [00:24:54] Speaker 00: So first off, I think that you're, Judge Bumate, getting at exactly the right point, which is the real nub of these trade secrets, there was no evidence from the other side that they were readily ascertainable. [00:25:06] Speaker 00: So for example, if you look at 1468 of the record excerpts, we ask our witness for trade secret E [00:25:14] Speaker 00: What are the components that make up TradeSecretE, the next generation RF matching network? [00:25:19] Speaker 00: And our witness responds, so in this case, we've broken it into four categories. [00:25:23] Speaker 00: There are the input and output sensors, the controls and sensor firmware software, the motion control, and the calibration. [00:25:30] Speaker 00: So let's start with the software. [00:25:32] Speaker 00: Opening up a match and looking at it isn't going to tell you how the software works. [00:25:35] Speaker 00: And there was no evidence from the other side on that. [00:25:37] Speaker 00: Same for calibration. [00:25:39] Speaker 00: Opening up a match isn't going to tell you how you calibrate all the components that are in there and tell them how to work. [00:25:44] Speaker 00: Instead, all the evidence from the other side, which came in primarily at two places, it was at 741 and at 769 to 71, was we could open this up and you could see the dimensions and you could see kind of the structure and maybe the name of a component. [00:26:00] Speaker 01: But you wouldn't understand how it all works together. [00:26:02] Speaker 00: Yeah, you couldn't understand how it all works together. [00:26:04] Speaker 00: You certainly couldn't understand how the software works, which is why, as we pointed out at pages 229 and 230 of the record excerpts, which is the trial transcript, [00:26:12] Speaker 00: They had our software, and they were using our software to figure out how this works. [00:26:16] Speaker 00: So everything we were actually arguing were the trade secrets here, were things that you couldn't just figure out by opening it up. [00:26:21] Speaker 00: Instead, you had to actually have this information that's not readily ascertainable. [00:26:26] Speaker 00: There was no argument from the other side that pointed to on those types of core issues, no, here's how you could figure it out from opening it up. [00:26:33] Speaker 00: The other important thing to understand on this argument about opening it up is they're not talking about actually opening up [00:26:39] Speaker 00: comments products and looking at how comments products work, because if you look at appendix 1417 and 318 to 19, the next generation comments sensors and controls weren't on the market, so there was nothing to open up. [00:26:55] Speaker 00: Instead, what they were saying is, well, if you opened up something that came from advanced energy, you'd be able to figure out what components were in the advanced energy product. [00:27:02] Speaker 00: Well, that doesn't tell you about comments trade secrets. [00:27:05] Speaker 00: That'd be like saying, especially given it doesn't give you all these details [00:27:08] Speaker 00: what's in there in the software, that'd be like saying, well, because the Pepsi can lists some ingredients on it, that must mean that Coke doesn't have a trade secret on its formula. [00:27:17] Speaker 01: Do you agree that it's irrelevant whether or not they actually put on evidence that that's how they constructed it, that they looked at the product and opened it up and then figured it all out? [00:27:27] Speaker 01: Is that irrelevant for this question of harmlessness? [00:27:30] Speaker 00: So I agree that ready ascertainability is about whether it's readily ascertainable to a person as a whole. [00:27:36] Speaker 00: It's not that whether they actually did it or not. [00:27:39] Speaker 00: But again, I think the evidence here makes it more likely than not, which is the standard, that it would not have been readily ascertainable to someone. [00:27:47] Speaker 00: How to figure out how the software works, how the calibration works, how the actual firmware inside it works. [00:27:53] Speaker 01: Do you agree that this was a contested issue, though, at trial? [00:27:56] Speaker 00: It was contested whether it was readily ascertainable, although again, [00:28:00] Speaker 00: contested only in the sense that they have two places where their witness talked about it briefly in the response of like two or three Q&A's and if you look at one of those Q&A's which is at 771 their expert actually says not readily ascertainable he says these things were generally known which is of course a different element of the trade secret claim one where it's undisputed we had the burden and one where the jury found for us and [00:28:24] Speaker 00: So I think that, again, is another indication of the harmlessness here, if you look at it that way. [00:28:29] Speaker 00: And then the final thing that I will say on harmlessness, unless the court has other questions about it, is when this case had both the California trade secret claim in it and the federal trade secret claim, XP agrees that the burden of proof is different from those, and that under federal law, they don't have the burden. [00:28:48] Speaker 00: Under California law, they do. [00:28:49] Speaker 00: Yet the proposed instructions that they put forward to the district court and that the district court accepted [00:28:55] Speaker 00: merge those two together and put the burden on them and they were perfectly happy to take that burden on up until the California trade secret dropped out of the case. [00:29:02] Speaker 00: If you actually thought this was gonna be a close case where the burden of proof was gonna make a big difference, you would not propose an instruction that looks like that. [00:29:11] Speaker 00: You would make sure the DTSA instruction puts the burden on you rather than lumping the two instructions together and saying, we're okay having one instruction that puts the burden on us even though that's not actually the right burden under federal law. [00:29:23] Speaker 00: And so I ultimately think that [00:29:25] Speaker 00: Mockler and other cases from this court have said that even on burden of proof issues, it can be harmless. [00:29:30] Speaker 00: And given the overwhelming evidence here that was largely undisputed, that you couldn't just open up the matches and figure out what was going on with these trade secrets, there is no problem here. [00:29:40] Speaker 00: I guess the other part of harmlessness that they point to is some patents. [00:29:44] Speaker 00: I didn't hear it today, but they talked about it in their briefs. [00:29:46] Speaker 00: So just to touch on that briefly, that obviously actually goes to whether it's generally known in the art. [00:29:51] Speaker 00: which was an issue that we had the burden on and the jury found in our favor. [00:29:54] Speaker 00: So I don't think that the fact that you can find some things. [00:29:56] Speaker 04: Does it go only to that issue? [00:29:58] Speaker 00: Well, that was the way that they argued it to the jury. [00:30:01] Speaker 00: I think that was how the jury understood it. [00:30:04] Speaker 00: And also, I think even if you want to go and look at the patents, all the testimony is just, again, you can find out high-level details of these are the typical things that you would put into an RF power product. [00:30:14] Speaker 00: None of them got into the actual details of the trade secrets here. [00:30:17] Speaker 00: Like, how do you actually calibrate them? [00:30:19] Speaker 00: How do you actually manufacture them? [00:30:21] Speaker 00: How do you design the software? [00:30:24] Speaker 00: All of those things was just not there. [00:30:27] Speaker 00: And then I understand that there was not a lot of argument on this from the other side, but I do think that the instructions as a whole also get us to the same place. [00:30:35] Speaker 01: Can you move on to the evidentiary question of ownership? [00:30:39] Speaker 01: Sure. [00:30:40] Speaker 01: Because ownership is an element, and there was some evidence that was excluded that dealt with ownership. [00:30:47] Speaker 00: So I'm not sure that I agree that it went to ownership other than them. [00:30:51] Speaker 00: I mean, I understand they nodded in that direction. [00:30:53] Speaker 00: But the district court is the one who's living through the case and seeing how it's developing. [00:30:56] Speaker 00: And I think that he could see that the way that they really wanted to use this evidence was not to go to ownership, but was intent to tell a story that was, well, if we stole something, we think Comet stole something, too. [00:31:07] Speaker 00: And so a pox on both your houses. [00:31:09] Speaker 03: OK, so is that your distinction? [00:31:11] Speaker 03: I mean, if we think that it goes to ownership, did the district court abuse its discretion? [00:31:17] Speaker 00: No, even if you think it goes to ownership, the district court didn't abuse its discretion because the district court is still the one that has, in the words of the Espinoza case, can see the dynamics of trial and how they're actually going to use it and can see that regardless of whether they think it might go to ownership, the way they really want to use this is to tell a pox on both your house's story to the jury. [00:31:34] Speaker 00: And you can tell that even from just looking at where they're arguing to get this evidence in. [00:31:38] Speaker 00: So look at 1446 to 47 of the record excerpts. [00:31:42] Speaker 00: They say one sentence about ownership. [00:31:44] Speaker 00: They say, this goes to ownership. [00:31:46] Speaker 00: They don't explain why. [00:31:46] Speaker 00: And then the rest of their argument for how this comes in is, well, we heard testimony from comments witnesses about how it was wrong that XP stole this material. [00:31:56] Speaker 00: This testimony goes to the court. [00:31:58] Speaker 01: So the district court understood that they might be presenting as ownership, but it was essentially the district court viewed it as a pretext to get this unclean hands argument before the jury. [00:32:09] Speaker 00: Exactly. [00:32:10] Speaker 00: The district court understood that even if they think this is going to ownership, which they never really connected the dots of how this evidence went to ownership, it was a pretext for what they really wanted to do. [00:32:19] Speaker 00: And you can see that again in their own arguments. [00:32:21] Speaker 00: If you look at 1440. [00:32:22] Speaker 01: And then your argument would be that that's within the district court's discretion to do that. [00:32:27] Speaker 01: Yes, certainly. [00:32:28] Speaker 04: But if I recall correctly, didn't the district judge exclude in limiting anything having to do with an unclean hands defense? [00:32:37] Speaker 00: The district court did eliminate, well yes, excluded anything having to do with unclean hands events and struck from their expert report information that they only put in for the purpose of unclean hands. [00:32:48] Speaker 04: Did the jury ever hear the words unclean hands in this trial? [00:32:52] Speaker 00: The jury never heard the words unclean hands, but just because they weren't going to say the words doesn't mean that they weren't going to try and make the argument and give the jury the implication. [00:33:00] Speaker 04: Well, if you guys stole it first, that would mean you don't own it, right? [00:33:06] Speaker 00: If we stole it first, we wouldn't own it. [00:33:09] Speaker 00: Of course, all that they were saying is this person worked on it somewhere else. [00:33:13] Speaker 00: When we got to trial, that's what they were trying to present. [00:33:16] Speaker 04: That sounds to me like an ownership defense. [00:33:20] Speaker 04: The district court seemed to be speaking under Rule 403 in terms of prejudice and confusion. [00:33:29] Speaker 04: I guess I'm having trouble understanding if [00:33:32] Speaker 04: The unclean hands defense was not going to be in front of the jury. [00:33:35] Speaker 04: What would be unfair or prejudicial about putting in evidence that you guys didn't own some of the trade secrets? [00:33:42] Speaker 00: What was going to be unfair and prejudicial about it was that was not how they were going to use it. [00:33:46] Speaker 00: They were going to use it to tell this pretextual story. [00:33:48] Speaker 00: And again, if you look at 1446 to 47, what they said is we need to get this in to tell the corollary story to, well, they think that we stole it. [00:33:57] Speaker 00: We think that they acted poorly too. [00:33:58] Speaker 00: If you look at 1486 to 87, [00:34:01] Speaker 00: This comes up again where they try and get it in again. [00:34:03] Speaker 00: And here's what they say to the district court. [00:34:05] Speaker 00: They say, we opened the door because we had a witness get on the stand and say, when you walk out the door and leave, you say goodbye and thank you. [00:34:13] Speaker 00: You don't steal information with you on the way out the door. [00:34:16] Speaker 00: We need to be able to tell the jury that they did the same thing. [00:34:19] Speaker 00: That's not going to ownership. [00:34:20] Speaker 00: And they didn't say anything about ownership in that colloquy. [00:34:24] Speaker 00: It's going to unclean hands and trying to tell the story of, well, [00:34:28] Speaker 00: They think we did bad things, they did bad things, too. [00:34:31] Speaker 00: That's the story they wanted to tell the jury. [00:34:32] Speaker 00: They wanted to tell an equitable story to the jury. [00:34:34] Speaker 00: And then the other place where they object to the admission of evidence, where their evidence didn't get in at 651, they didn't say a word about ownership in trying to get that evidence in. [00:34:43] Speaker 00: So that can't possibly have been excluded for the wrong reason in going to ownership, because that wasn't the argument they made to the district court. [00:34:48] Speaker 00: And you view the district court on discretionary rulings based on what were the actual reasons that were given to the district court, not in hindsight what are arguments you could come up with after the fact. [00:34:58] Speaker 00: So I think that this falls well within the district court's broad discretion to understand how this played out, including that ownership wasn't a defense that they really contested until we started trying to get out the unclean hands evidence. [00:35:09] Speaker 04: If you look at their interrogatory responses... So did they ever concede ownership? [00:35:13] Speaker 00: They never conceded ownership, but if you look at their interrogatory responses, [00:35:17] Speaker 00: All they said on it was, we have the burden to prove ownership. [00:35:19] Speaker 00: They otherwise didn't try and elaborate on how there was a failure of ownership. [00:35:22] Speaker 04: Were those interrogatory answers before or after Mason's additional devices were discovered? [00:35:31] Speaker 00: So they were after the Mason devices were turned over by XP because we had to file a motion to compel. [00:35:36] Speaker 00: But if you look at pages 162 to 163 of the supplemental excerpts of record, many of the documents that they say they wanted to get in, they actually had in their possession. [00:35:46] Speaker 00: and now that they have them in their possession, but we had produced them in discovery with metadata showing that they came from Mason. [00:35:53] Speaker 04: So if they wanted to make an argument, if Mason had advanced... So you're saying that they fell down on the job because they didn't get into the metadata to figure out that Mason and company had brought it from a prior employer? [00:36:05] Speaker 04: They should have figured that out first? [00:36:08] Speaker 00: They should have figured it out or they should have tried to develop it, but my real point is this [00:36:12] Speaker 00: Unclean Hands was the argument in how they said they were originally bringing in all of this new Mason information. [00:36:17] Speaker 00: You can see that at page 332 of our supplemental record excerpts. [00:36:23] Speaker 00: And it was only after we then moved to get rid of the Unclean Hands defense and to say you should strike this that they started saying, well, actually, you think maybe it goes to ownership. [00:36:31] Speaker 00: The district court, again, is seeing all of this play out, sees how they want to use it at trial, and it's well within its broad discretion [00:36:36] Speaker 00: to make the judgment call that I don't think this is coming in for a proper purpose. [00:36:40] Speaker 00: This looks like you're trying to bring it in to tell a pox on both your house's story. [00:36:45] Speaker 00: Let me just turn, if I may, to the damages and permanent injunction issue. [00:36:51] Speaker 00: So I think that you're exactly right, Judge Hamilton, which is there's no double recovery happening here. [00:36:55] Speaker 00: What's happening is the unjust enrichment award is covering what happened in the past. [00:37:01] Speaker 00: It's the fact that they saved all of these development costs that they otherwise would have incurred. [00:37:05] Speaker 00: and would have spent to try and have these trade secrets. [00:37:08] Speaker 00: And then when we get to the injunction, it's preventing the forward-looking hardware that continuing to use it. [00:37:13] Speaker 00: So one way to look at it. [00:37:14] Speaker 03: Can you address the, wasn't it the Second Circuit case that counsel says points the other direction? [00:37:23] Speaker 00: Yes, so I think it was the Second Circuit decision in Cintel. [00:37:26] Speaker 00: So Cintel didn't actually deal with this double recovery issue of injunction versus [00:37:31] Speaker 00: versus unjust enrichment, it instead held that you can't get unjust enrichment damages unless you as a trade secret owner suffer compensable harm beyond its lost profit or profit opportunities. [00:37:44] Speaker 00: And that's what it held. [00:37:45] Speaker 00: That's been rejected by five other circuits. [00:37:47] Speaker 00: The most on point case here is the PPG case from the third circuit, which did address this exact issue. [00:37:54] Speaker 00: And it did exactly what the district court did here and said, no, those avoided cost damages. [00:37:59] Speaker 00: Those are going to the past. [00:38:00] Speaker 00: The injunction's going to the future. [00:38:02] Speaker 00: Just like the facts here, the injunction got put in place before a product went to market. [00:38:07] Speaker 00: So this was not a situation where a product was going on the market, and that's why you're cutting it off. [00:38:11] Speaker 00: It wasn't on the market yet. [00:38:13] Speaker 00: What my friend on the other side has said about PPG in the past is that, well, they were already building a production facility to make this stuff, and so there was still the residual value of the production facility. [00:38:23] Speaker 00: Number one, that's not what the PPG court said. [00:38:26] Speaker 00: Number two, [00:38:27] Speaker 00: The production facility was to actually make the trade secret product, so I'm not sure what residual value it would have had. [00:38:34] Speaker 00: And number three, the damages that were rewarded were not the residual value of the production facility, they were the avoided costs from misappropriating the trade secrets rather than engaging in the development work. [00:38:44] Speaker 00: I see my time's up, so I welcome any questions the court may have, but otherwise ask that you affirm. [00:38:48] Speaker 00: Okay, thank you. [00:38:49] Speaker 04: Excuse me, can I just ask you very briefly, are there any claims at this point pending against the individuals involved in this Mason and Company? [00:38:56] Speaker 00: But there are no claims pending against them. [00:38:58] Speaker 00: And I'm sorry, I thought of one other quick thing. [00:39:01] Speaker 04: You dropped those? [00:39:03] Speaker 00: To the extent that they were ever claims against them, they've been dropped. [00:39:05] Speaker 00: Yes, it's only pending against the company. [00:39:07] Speaker 04: They were apparently filed earlier. [00:39:08] Speaker 00: Yes, the only thing. [00:39:09] Speaker 04: What else do you want to tell us? [00:39:11] Speaker 00: Yeah, one second. [00:39:12] Speaker 00: On your statutory point of what's the statutory authority for their argument, what I'll say is what the statute does point to is if you're going to accept this double recovery argument, the statute tells you what the remedy is. [00:39:23] Speaker 00: And it's not to get rid of the damages award, it's to give us [00:39:26] Speaker 00: a reasonable royalty going forward, because what the statute says in 1836, I believe it's A3, maybe it's B3, it says, it's 3A, sorry, 1836 3A, what it says is, in the exceptional circumstance where an injunction isn't appropriate for some reason, a reasonable royalty is the appropriate remedy going forward. [00:39:47] Speaker 00: Thank you. [00:39:52] Speaker 02: I'll just make a couple of points first with respect to the evidentiary issue and then I want to address two things going to the instructional and say one last thing. [00:39:59] Speaker 03: On the evidentiary, did you tell the district court you wanted that as ownership evidence? [00:40:07] Speaker 02: Throughout the case and a trial. [00:40:09] Speaker 02: My friend said look to ER 1446 and you'll see that this is going to unclean hands. [00:40:14] Speaker 02: This is what we said at ER 1446. [00:40:16] Speaker 02: Quote, this has nothing to do with unclean hands. [00:40:18] Speaker 02: This testimony has everything to do with ownership. [00:40:20] Speaker 02: which your honor noted was still an issue to be tried in your order denying Comet's MIL-5. [00:40:25] Speaker 02: And that was a case with throughout the case. [00:40:27] Speaker 01: If you look at the... But couldn't the district court just think of it as a pretextual argument to get the unclean hands? [00:40:32] Speaker 02: No, because the two things are going to different... Unclean hands and ownership go to different things. [00:40:36] Speaker 02: Yes, of course there's... Well, let me explain why. [00:40:38] Speaker 02: Unclean hands is going to intent, right? [00:40:40] Speaker 02: It's going to the idea that Comet is a bad actor. [00:40:43] Speaker 02: Right. [00:40:43] Speaker 02: Ownership doesn't assume that they knew that this was coming from AE. [00:40:48] Speaker 02: We don't have to prove that they [00:40:49] Speaker 02: did anything wrong in terms of intentionally trying to take the trade ticket. [00:40:53] Speaker 02: It's just a question of, did this material happen? [00:40:56] Speaker 02: Is this material that you owned or did you not own it because it came to a third party, as Judge Hamilton noted? [00:41:01] Speaker 02: And I think the idea that the jury was going to... But to get to that story, though, you'd have to explain that they stole it from the other... You don't have to say that Comet intentionally stole it. [00:41:14] Speaker 02: You have to say that this is information that came from a third party. [00:41:17] Speaker 02: But surely we can't be prevented from making a probative argument on ownership. [00:41:20] Speaker 02: And again, there was files that we pointed to that specifically, like said, Forex sensor that were taken from a... I want to quickly address two very important points going to the jury instructional error. [00:41:33] Speaker 02: First, I heard my friend say that what you look to define invited error here is that final colloquy on 979 of the record. [00:41:40] Speaker 02: What happened there was the court first said, [00:41:43] Speaker 02: Is there anything else that we need to address that's not already covered by the objections that were given? [00:41:49] Speaker 02: And we said, no, we think we've said everything. [00:41:51] Speaker 02: It's all preserved. [00:41:53] Speaker 02: Then Comet said, as he admitted, they changed their tack from saying, hey, you've got the burden of proof wrong, to saying, hey, there shouldn't be an instruction about readily ascertainable at all. [00:42:04] Speaker 02: And the court then said, well, I'm not making the argument for them, but I think they've said that that should be part of the case. [00:42:09] Speaker 02: And so all we were saying when we said, yes, we think that's correct under the DTSA, [00:42:12] Speaker 02: is that readily ascertainable is part of the case. [00:42:15] Speaker 02: And that's where we were put in that cash 22 of getting an instruction with the wrong burden of proof of having it, not at all. [00:42:20] Speaker 02: And I'm sure if we'd gone the other way, they would be saying, we've done invited error, and that can't be right. [00:42:26] Speaker 02: They talk about harmlessness, and I think there's two important points to make about that. [00:42:30] Speaker 02: I think my friend kind of pivoted a little bit from what's in their brief, going from the why to now saying, well, there's different components out there. [00:42:37] Speaker 02: I think there's two things that are really important to understand. [00:42:40] Speaker 02: In order for them to prove their trade secret case, they obviously didn't have to just show that there was a trade secret, but that we used that trade secret. [00:42:47] Speaker 02: And when they made the argument to the jury about what did we use on trade secret E, the thing that they pointed to, and the only thing that they pointed to at closing arguments, was this Forex sensor. [00:42:57] Speaker 02: That's what they kept pointing to time and time again over the course of the case as what it was that we were using. [00:43:04] Speaker 02: And I'll just point to some examples. [00:43:07] Speaker 02: ER 212, it's that same sensor again. [00:43:09] Speaker 02: ER 226. [00:43:11] Speaker 02: There's the sensor block diagram again, 1021. [00:43:14] Speaker 02: Were the sensor files used? [00:43:15] Speaker 02: Of course they were. [00:43:16] Speaker 02: That's, again, in 1020 to 22 is the closing. [00:43:20] Speaker 02: That's the only thing that they were focused on. [00:43:22] Speaker 02: And I will just point out that to the extent that basically there's an argument that some important components of the trade secret here were readily ascertainable and others weren't, again, I think that that's the kind of murky situation where at minimum [00:43:35] Speaker 02: You can't say that it's harmless. [00:43:37] Speaker 02: This can't be the rare circumstance where you know based on what's in the record that the jury would have come out the other way. [00:43:44] Speaker 02: You just have to have a new trial. [00:43:46] Speaker 02: Thank you very much. [00:43:47] Speaker 03: Thank you. [00:43:47] Speaker 03: Thank you to both counsel for a very well argued case. [00:43:50] Speaker 03: The case is now submitted. [00:43:52] Speaker 03: And that concludes our arguments for the week.