[00:00:01] Speaker 01:
In 2007, Dr. Bianco told Globus about his idea for an expandable intervertebral spacer.

[00:00:23] Speaker 01:
He didn't have a prototype, he didn't have a product design that was workable, and he didn't have any other mechanism

[00:00:31] Speaker 01:
to implement his idea into practice.

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He did have a drawing that the district court described as crude, aspirational.

[00:00:39] Speaker 02:
How do we understand what the facts are?

[00:00:42] Speaker 02:
What you're arguing is that an abstract idea can't be a trade secret, that something that's not concrete can't be a trade secret, I guess, relying on the restating unfair competition.

[00:00:55] Speaker 02:
The problem is those words themselves have an abstract quality.

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What kinds of cases in Texas or indeed elsewhere have held that an idea which is valuable, which this one was found to be, and not known before, is too abstract to be entitled to trade secret protection?

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What specific cases, what specific things have been held to be too abstract?

[00:01:27] Speaker 01:
I would point, Your Honor, to the Astro Technology case, because we think that's closest on point.

[00:01:32] Speaker 02:
That's a district court case.

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Which was affirmed by the Fifth Circuit for the reasons stated by the District Court in a per curiam opinion.

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And so the Fifth Circuit has adopted that view of Texas law.

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And in that case, what the plaintiff had was an undeveloped plan

[00:01:49] Speaker 01:
to get data from solid rocket engines using fiber optics.

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He didn't have any... In that case, my recollection is that what the court said was that this was known before, the use of fiber optic cables under those circumstances, not that it was too abstract an idea.

[00:02:07] Speaker 01:
Your Honor, with respect, that wasn't the basis for the grant of summary judgment.

[00:02:10] Speaker 01:
It was that it was ideas under Texas law are not trade secrets.

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That was the basis of his decision, and the district court relied on the Gonzalez case

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from the Texas Court of Appeals.

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So he was on firm ground under Texas law in holding that.

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And again, we think that that case is directly on point with what we have here.

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That case also involved a written volume that described some of the concepts of how this idea would be implemented.

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And the district court still found in that case that was insufficient to suggest a trade secret in that situation.

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And it granted summary judgment.

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Judgment is a matter of law.

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That rule in astro technologies

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and Gonzalez is consistent with the rule in every jurisdiction that applies the common law that's been cited by either party.

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There's no case that involves simply an idea set apart from a product design that would work or a prototype where that idea in and of itself has been held to be a trade secret under the common law.

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And the reason for that is because the common law requires the plaintiff to use the alleged trade secret in his business.

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An idea alone wouldn't be used in business and can't be used in business.

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It doesn't have commercial value for that reason.

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In addition to that, an idea is immediately revealed as soon as it's used.

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And that's the case of the Richter and Hudson Hotel from the Sixth and Second Circuit, which go down that line of rationality.

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The bottom line, though, is

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that there is no case under the common law in which an idea in the abstract form that Dr. Bianco has provided here has been held to be a trade secret.

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It would be unprecedented and it would be new law.

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And I should say, Your Honor, is that this case applies to Texas common law, which is no longer applicable in Texas.

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Texas has since adopted the Uniform Trade Secrets Act, which did away with the use in business requirement.

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Possible it would have been a closer case or even a different result under the Act, but under the common law of trade secrets, this is the result that courts have always applied.

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If Dr. Bianco wanted coverage, wanted protection for his idea, he could have done what doctors typically do in this industry, which is to enter into a contract with Globus that would cover his idea and provide him with reimbursement if the idea was used.

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He presented the contract claim to the jury, and the jury rejected it.

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There was no contract that covered this idea.

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He could also have tried to seek a patent.

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He didn't do that.

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He tried to add himself as an inventor to the patent that Globus filed on its products.

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The inventorship claim was denied.

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He was left with a trade secret claim.

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It was the only claim that he prevailed on.

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And with respect, Your Honors, it was a square peg that he was trying to fit into a round hole.

[00:05:05] Speaker 01:
A trade secret

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is not a new product idea.

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The reason that all that Dr. Bianco had was a new product idea is because his entire theory of use in this case depended on it.

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He couldn't show that his drawing itself was used by anybody on the design team at Globus, and he admitted that at trial.

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His drawing was never communicated directly to anybody on that design team.

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All he could show is that the idea itself had been told to Globus, and that idea caused

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the spark, the inspiration, the motivation for Globus to then go back and come up with its own design that was workable, because his design, as his own expert admitted, was not workable.

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On appeal, and also in the district court's post-judgment opinion, Bianco has cited quote-unquote key features involving the drawing.

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There are a few things about the key features.

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We don't know what they are.

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He's never defined them.

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The district court has never defined them.

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Secondly, the ones that he has described in footnote eight of his brief, and there are only three of them, don't take this from an idea to anything that resembles a trade secret.

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There's nothing that's not abstract.

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They're just more words to describe the idea which is depicted in his drawing.

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A trial presented a complete combination of publicly known elements that he said were comprised his trade secret.

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That was an alternative trade secret he suggested.

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Neither the district court nor he have relied on that complete combination of elements after the jury verdict.

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The district court didn't rely on it to uphold it, and he hasn't relied on it in this court.

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What Bianco is trying to do is to pick and choose between the publicly available elements that he said were part of his trade secret.

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And he can't do that.

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There's no evidence that any sub-combination of elements was not also publicly available.

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So that doesn't support the district court's verdict or the jury's verdict.

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I'd like to turn quickly to damages.

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The problem with respect to damages here was that the royalty that was awarded by the jury

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for no relationship to the value of what Dr. Bianco provided.

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Again, what Dr. Bianco provided was an undeveloped, unworkable idea that took globus years and thousands of hours of man time to develop.

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That's where the value was.

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He also acknowledged that in the marketplace there was... That's a question of fact, isn't it?

[00:07:54] Speaker 04:
And this is your reverted.

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Well, yes, Your Honor, but in this case we have

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Several things that make it the overwhelming evidence were against the jury's award.

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First of all, Dr. Bianco's damages expert admitted that some apportionment of the base would be required if there were others involved in the genesis of the idea.

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He admitted that he did no apportionment of the base.

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It's clear that others were involved in the genesis of the idea.

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There's an immediate red flag there.

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that were left with the rate.

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And what Dr. Bianco's expert did with respect to that was also unreliable.

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There was an overwhelming number of royalty agreements that Globus had entered into, where Globus paid between 0.5 and 1 percent to doctors for their work on developing products.

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There were four royalty agreements that had rates of 5 or 6 percent

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And two of those involved purchases of companies.

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One of them involved purchase of a patent.

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And there was only one royalty agreement that was even arguably comparable.

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So the great weight of the evidence, which is the standard that applies to that determination, was in favor of the 0.5% to 1% award that Bianco or that Globus had argued for.

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The district court abused its discretion ignoring that.

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in upholding the verdict.

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Finally, Your Honor, with respect to future damages, there is no authority under Texas law to support an ongoing royalty in a trade secret case that's simply never been done before.

[00:09:39] Speaker 04:
Isn't taste a good enough analogy from this Court?

[00:09:42] Speaker 01:
No, Your Honor, because in the trade secret context

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the value of the trade secret needs to be determined at the time of misappropriation, and the Texas law that we cited in this section is clear.

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Dr. Bianco came to trial with a theory of future damages, and he couldn't prove that theory because it was unreliable, and the district court held so in the Daubert hearing just before trial.

[00:10:06] Speaker 01:
Having done that, having failed to meet his burden of proof, the district court then gave him a second bite of the apple.

[00:10:13] Speaker 01:
That prejudice

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and was an error of law.

[00:10:18] Speaker 04:
Couldn't the district court have reasonably determined that the damages were foreseeable for a period of 15 years from the time of the alleged misappropriation?

[00:10:33] Speaker 01:
Well, Your Honor, that was the basis, if I understand your question correctly, that was the basis on which the district court

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held that Dr. Becker, who was the damages expert, was unreliable.

[00:10:44] Speaker 01:
He held that there was no basis to determine that you could project 15 years out because Dr. Becker didn't have grounds to determine that.

[00:10:53] Speaker 01:
He ultimately, he being in the district court, ultimately settled on a 15-year royalty based on, again, non-comparable agreements.

[00:11:01] Speaker 01:
He was looking at agreements that had a 0.5 to 1% royalty rate.

[00:11:06] Speaker 01:
Those had a 15-year term.

[00:11:08] Speaker 01:
And then he applied that to, to this situation.

[00:11:11] Speaker 01:
That was an error.

[00:11:13] Speaker 04:
We'll save the rest of your rebuttal.

[00:11:15] Speaker 01:
Thank you very much.

[00:11:17] Speaker 04:
Mr. Shah.

[00:11:23] Speaker 00:
May it please the court, Pratik Shah for Appalee, Dr. Bianco.

[00:11:27] Speaker 02:
Can I follow up on the last question about the continuing 15 year royalty?

[00:11:34] Speaker 02:
It seems to me that one of the predicates for

[00:11:38] Speaker 02:
allowing such a royalty is that the trade secret would not have been discovered by someone else during that 15-year period.

[00:11:49] Speaker 02:
And I don't recall that there was any finding or any evidence to that effect here.

[00:11:54] Speaker 02:
Could you comment on that?

[00:11:56] Speaker 00:
Sure, Your Honor.

[00:11:56] Speaker 00:
Well, the Fifth Circuit in Sykes, I think, addressed this very issue where that argument was made that said, okay, well, in that case, it was a patent that came about and said, well,

[00:12:07] Speaker 00:
This became disclosed upon the issuance of the patent, so we shouldn't extend the royalty.

[00:12:12] Speaker 02:
That doesn't seem to me to be.

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The patents are quite different.

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I thought it was pretty well established in the trade secret context that you wouldn't be compensated for the trade secret beyond the time when it would have been discovered.

[00:12:25] Speaker 02:
So why isn't it necessary to make a finding in connection with the trade secret where there's an ongoing royalty

[00:12:31] Speaker 02:
that the trade secret wouldn't have been discovered before the end of the royalty period.

[00:12:35] Speaker 00:
Your honor, that's not the rule under Texas trade secret law.

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What the rule is is, and Sykes says this is, and that case involved the life of the product royalty, and what the court said is, well, we understand the argument of this head start theory that once it becomes public you can

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cut off damages.

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Some jurisdictions accept that rule.

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What the Fifth Circuit said is, we do not accept that rule.

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And the paradigm it used is, what we're going to look at is, at the time they would have done a hypothetical negotiation for the- This is a trade secret case?

[00:13:05] Speaker 00:
This is a trade secret case.

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This is the Fifth Circuit's decision in Sykes, which is cited throughout the brief.

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And what the court said is, what we would do is we would look at a hypothetical negotiation, and certainly it would have been the case

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that at the time they negotiated this thing, they would have.

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negotiated it for the life of the product and therefore, even though it would have become public sooner than that, we're going to award the royalty as if it had been based on a hypothetical negotiation.

[00:13:33] Speaker 00:
That's the Sykes case.

[00:13:34] Speaker 00:
It says that explicitly and we cite that in our brief.

[00:13:38] Speaker 00:
I think that's the best authority under Texas law as construed by the Fifth Circuit to allow for a royalty that extends beyond this head start period that would go for the life of the product.

[00:13:50] Speaker 00:
And I think if you look at other Fifth Circuit precedent, for example, university computing, it creates a broad, equitable authority for Texas courts to be issuing fashioning remedies, not only generally as is the case in courts,

[00:14:06] Speaker 00:
inequitable remedies, but in particular in trade secret cases.

[00:14:10] Speaker 00:
The language that the Fifth Circuit uses in universities computing is the remedial relief should be, quote, flexible and imaginative.

[00:14:18] Speaker 00:
That's particularly because sometimes in trade secret cases, the amount of the damages can be speculative.

[00:14:25] Speaker 00:
Pardon me, because you have to project it out for a certain number of years.

[00:14:28] Speaker 00:
It says, let's be flexible and imaginative.

[00:14:30] Speaker 00:
And in particular, university computing says, we can look to patent law.

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It's a Fifth Circuit case.

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We looked at patent law for analogies to provide remedies.

[00:14:39] Speaker 00:
And of course, PACE, to answer your honor's question, I think is a very apt reality and remedy here.

[00:14:46] Speaker 02:
Now, there's nothing- Of course, in patent law, you can't get royalties beyond the time of the expiration of the patent.

[00:14:51] Speaker 00:
Well, Your Honor, right.

[00:14:53] Speaker 02:
And here, the royalty- You're going to make an analogy that might seem to be a fairly close one.

[00:14:59] Speaker 00:
Well, Your Honor, I think here the analogy is that royalty would last for the life of the product.

[00:15:03] Speaker 00:
And there isn't a risk of it being too speculative or anything like that, because you're actually going to multiply the sales of the product at any particular year.

[00:15:12] Speaker 00:
And if they happen to peter out before the life of the product, then there isn't any royalties going to be collected.

[00:15:17] Speaker 00:
There is not a single case

[00:15:19] Speaker 00:
in Texas law that carves out an ongoing royalty reward from the broad equitable release that a Texas court can award.

[00:15:28] Speaker 02:
There's two lines of cases that I'd point to that suggest- There aren't any Texas state cases dealing with ongoing royalties, right?

[00:15:35] Speaker 02:
That is true, Your Honor, but I think there's- It's a lot wiser the fact that there's no case suggesting anything.

[00:15:40] Speaker 00:
Well, because I think that you start with the broad principle that university computing the Fifth Circuit is instructed in Texas trade secret cases.

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The award should be flexible and imaginative to make sure that you're compensating the plaintiff for the injury.

[00:15:54] Speaker 00:
There's two particular cases that suggest that the form of relief that the district court awarded here is actually more measured than what trial courts often award in Texas.

[00:16:04] Speaker 00:
in trade secrets case.

[00:16:05] Speaker 00:
The first is Hyde.

[00:16:06] Speaker 00:
What Hyde says, the Texas Supreme Court decision, is often the remedy in these cases is a perpetual, a permanent injunction, even against use of the trade secret, even after, to go to your first question, even after it becomes public.

[00:16:20] Speaker 00:
That is Hyde, a Texas Supreme Court case, which is selected.

[00:16:24] Speaker 00:
If a permanent injunction in a trade secret cases, which Hyde said is routine in Texas trade secret cases is OK, then certainly a more measured memory remedy of an ongoing royalty should be OK.

[00:16:36] Speaker 00:
The second data point I would point to is, again, the Sykes case, which recognizes a life of product royalty.

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This is like that.

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But instead of doing a lump sum, which has the problem of it being too speculative because you have to predict 15 years out what the sale is going to be,

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This is a more measured remedy that says, we're going to do it on an ongoing basis so you don't get more than you're entitled to.

[00:16:56] Speaker 00:
So I think those two hide and spikes together, along with the broad charge of equitable relief in trade secret cases and university computing, provide ample authority that shows that the ongoing royalty awarded here is well within the province of the court.

[00:17:13] Speaker 00:
The third thing I would point to you on that is uniform trade secret acts.

[00:17:17] Speaker 00:
Now clearly this case is not directly controlled by it because the Uniform Trade Secret Act was implemented in Texas after this case happened, but the Uniform Trade Secret Act is informative because as it says, it is incorporating the common law and the Uniform Trade Secret Act

[00:17:35] Speaker 00:
has a specific explicit provision that says an ongoing royalty award, just like the one awarded here, is an acceptable form of relief because it is a lesser included form of the permanent perpetual type of injunction that Texas courts have long recognized.

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Again, Hyde is, I think, the best authority for that.

[00:17:56] Speaker 00:
Now, on the ongoing royalty, the other thing I would point out is that this remedy all along, the first time that Glovis objected to this as a permit, they had other objections as to why you shouldn't do an ongoing royalty, the Head Start theory and other things.

[00:18:11] Speaker 00:
But the first time that they objected that this was beyond the scope of the authority of the court was at the Rule 50B hearing.

[00:18:18] Speaker 00:
And here is what actually the district court said when it was denying the injunction

[00:18:25] Speaker 00:
in favor of an ongoing royalty award.

[00:18:28] Speaker 00:
I'm quoting from page 853 of the addendum from Judge Bryson's opinion.

[00:18:33] Speaker 00:
It says, quote, thus the jury's verdict as to the proper compensation for past injury and evidence on which it was based strongly support

[00:18:41] Speaker 00:
Glovis's argument that monetary relief in the form of an ongoing royalty will provide full compensation for any injury attributable to Glovis's misappropriation.

[00:18:53] Speaker 00:
Glovis argued, and this is captured in Judge Rice's opinion, that no, you shouldn't award the permanent injunction because you could get an ongoing royalty award that would provide sufficient compensation.

[00:19:03] Speaker 00:
So for them to argue that and then make an argument in the Rule 50B motion says, oh, actually, court, you didn't have any authority to do this, would not be fair.

[00:19:13] Speaker 00:
So it's not only consistent with equitable principles here, but I think it would conflict with their arguments to the court as the district court recognized.

[00:19:26] Speaker 00:
Now, if I could shift to the liability issues, Your Honor.

[00:19:29] Speaker 00:
They make one liability argument and it's a sufficiency of the evidence challenge predicated on two assertions.

[00:19:36] Speaker 00:
The first assertion being that Texas law categorically excludes new product ideas from trade secret protection.

[00:19:43] Speaker 00:
And the second being that Dr. Bianco's trade secret here was in fact limited to a mere abstract idea.

[00:19:50] Speaker 00:
Neither assertion is correct.

[00:19:52] Speaker 00:
And I would start with the second one because I think it largely obviates the need to address the first one.

[00:19:57] Speaker 00:
As the district court confirmed, and this is clearest addendum pages 123, 124 of the district court's Rule 50B opinion,

[00:20:05] Speaker 00:
Dr. Bianco has never limited his trade secret to an abstract idea, but all along has presented it as a product idea of an adjustable spinal implant, but combined with key design features.

[00:20:19] Speaker 00:
Really, this has essentially been litigated as a product design case, and that is the

[00:20:25] Speaker 00:
protectable trade secret here.

[00:20:27] Speaker 00:
It's interesting, and let me say that we set out some of the features in footnote eight, but the design features are not limited to those in footnote eight.

[00:20:36] Speaker 00:
Dr. Bianco's expert at trial, and I think this is very important for their argument,

[00:20:40] Speaker 00:
page 7,006 in the appendix to 7,014 and it's reiterated in this expert report which starts at page 3,156 of the appendix, lays out numerous design features beyond the core idea of a continuous

[00:20:55] Speaker 00:
continuously expandable and contractible inner body spacer.

[00:21:00] Speaker 00:
It lays out several significant features, and let me just enumerate some of them for you to be concrete.

[00:21:06] Speaker 00:
Actuation of the implant via a rotating screw mechanism.

[00:21:10] Speaker 00:
Two, an externally triggered locking mechanism so that the implant will lock in place when you remove the instrument.

[00:21:17] Speaker 00:
Three, a dial with markings to show the level of expansion of the implant once it's

[00:21:23] Speaker 00:
inserted, and you can see that on the drawing, and four, even though this isn't on the drawing, there's testimony that it was communicated to Globus, that the spacer implant be made with a center of titanium to provide enough strength.

[00:21:36] Speaker 00:
So it's not just this mere abstract idea, which they continue to characterize and mischaracterize

[00:21:42] Speaker 00:
the trade secret, but as the district court recognized, it was that idea plus these other design features.

[00:21:50] Speaker 00:
And I think the other illuminating thing about that is in the Rule 50B motion, one of Glovis's primary arguments was this 14 feature combination of a trade secret.

[00:22:00] Speaker 00:
Now their primary argument is it's just a bare abstract idea.

[00:22:04] Speaker 00:
They're providing two extreme characterizations

[00:22:07] Speaker 00:
of the trade secret, of course the truth lies in the middle and at least the jury was well within its province to look at the evidence, to look at that expert testimony and find that there was enough here, there was an idea plus key design features as depicted in the design drawings and otherwise communicated to Globus to support its jury verdict that there was a protectable trade secret here.

[00:22:30] Speaker 00:
It did not have to choose between those all or nothing extremes.

[00:22:34] Speaker 00:
This is not the place to retry the jury case.

[00:22:37] Speaker 00:
Now, as to the first issue, if there is any need, and I don't think there is, to resolve this question of Texas law as to whether Texas trade secret law excludes product ideas, I think the clearest authority is not Astro Technologies, which is a district court decision, which was affirmed in an unpublished

[00:22:57] Speaker 00:
non-precedential one paragraph opinion, but it is in fact Sikes, a published Fifth Circuit decision.

[00:23:04] Speaker 00:
Here is what the published Fifth Circuit decision says in denying rehearing.

[00:23:08] Speaker 00:
It's at 671, F2D at 151, and it's printed in our brief.

[00:23:13] Speaker 00:
Texas law rejects, and I'm quoting, quote, so rigid a distinction between new product ideas and trade secrets.

[00:23:23] Speaker 00:
The party in Sykes cited the exact same authority that the other side is citing, Richter, primarily the Sixth Circuit case, and it rejected Richter, both grounds of Richter on which they now rely that it has to be used in the business and that once it's used, it will become obvious.

[00:23:39] Speaker 00:
The pronouncement could hardly be clear.

[00:23:41] Speaker 00:
It categorically rejects Richter as stating a plausible rule that's followed by some jurisdictions, but not followed by Texas.

[00:23:50] Speaker 00:
In fact, if you look at the restatement provision, which they cite on pages 27 and 28 of their brief, that's the restatement third of unfair competition.

[00:23:59] Speaker 00:
It's section 39, comment H. They cite the first half of that comment, which says most jurisdictions draw a difference between new product ideas and trade secrets.

[00:24:09] Speaker 00:
But the next sentence, which they don't quote, is other jurisdictions, however, disagree.

[00:24:15] Speaker 00:
Then if you look at the reporter's note in that restatement to 39H,

[00:24:19] Speaker 00:
It specifically says, here are the jurisdictions that reject that clear distinction between trade secret and product ideas.

[00:24:28] Speaker 00:
The first case it cites is Sykes, the published Fifth Circuit decision.

[00:24:32] Speaker 00:
I think it's well recognized both within published Fifth Circuit law and within the treatises that describe the general rule that they're describing and describe Texas as falling outside of that general rule.

[00:24:47] Speaker 00:
I'm happy to address any other questions, but otherwise I'll... Thank you, Mr. Shah.

[00:24:52] Speaker 04:
Mr. Palombos has a few minutes for rebuttal if needed.

[00:25:00] Speaker 01:
Thank you, Your Honors.

[00:25:03] Speaker 01:
Your Honors, to start first with liability, I'd like to turn to the Sykes case.

[00:25:09] Speaker 01:
Sykes involved a prototype who was a working, functioning prototype.

[00:25:13] Speaker 01:
The District Court was clear, or I'm sorry, the Fifth Circuit was clear that it compared that and contrasted that to mere paper plans, to call them, that in the panel decision was a key point in why it rejected the idea that the new product idea in that case could not be a trade secret.

[00:25:32] Speaker 01:
Here all we have is an abstract idea.

[00:25:36] Speaker 01:
There's nothing that's workable in the device.

[00:25:38] Speaker 01:
There's no design.

[00:25:39] Speaker 01:
There's no prototype.

[00:25:40] Speaker 01:
All of that value was created by Globus

[00:25:43] Speaker 01:
in, as what Dr. Bianco calls, in response to and motivated by the idea that was submitted by Dr. Bianco.

[00:25:51] Speaker 01:
Now, Mr. Shah mentioned the elements, the key features again.

[00:25:56] Speaker 01:
What he's reciting from the record are portions of the 14 element combination that Dr. Bianco relied on at trial.

[00:26:06] Speaker 01:
And it's critical to know that it was the entire combination

[00:26:10] Speaker 01:
that was described as the trade secret.

[00:26:12] Speaker 01:
Very explicitly, I'd point you to A7016 of the record where his expert, Dr. McMillan, is asked, is it the individual parts of the trade secret or something else?

[00:26:23] Speaker 01:
No, it's the combination of them.

[00:26:24] Speaker 01:
The next page, 7017 into 18.

[00:26:28] Speaker 01:
I mean, it's the combination of putting them all together to make the spacer.

[00:26:32] Speaker 01:
That's the important thing.

[00:26:33] Speaker 01:
So it's not any one single feature?

[00:26:35] Speaker 01:
No, it's how they all come together.

[00:26:37] Speaker 01:
The reason that he had to rely on the complete combination of elements is because they were all publicly available.

[00:26:44] Speaker 01:
He couldn't rely on any sub-combination, and there was no evidence that any sub-combination wasn't publicly available.

[00:26:51] Speaker 01:
It was a complete combination that was one potential trade secret.

[00:26:55] Speaker 01:
The other problem with that complete combination is that, as Dr. Bianco admitted, there was no evidence that it was used

[00:27:02] Speaker 01:
by the design team at Globus to create the device.

[00:27:06] Speaker 01:
The only evidence of use, taking the light most favorable to Dr. Bianco, was that the idea itself spurred development, and it spurred Globus to develop a workable device.

[00:27:18] Speaker 01:
So the idea is what the trade secret has to be based on his theory of use in this case.

[00:27:25] Speaker 01:
Now turning to the ongoing royalty, and Judge Dyke, you asked

[00:27:28] Speaker 01:
questions about the propriety of that in this situation.

[00:27:31] Speaker 01:
We argued and put evidence before the district court that the royalty should be limited to a head start period.

[00:27:38] Speaker 01:
We think that you're exactly right in that questioning.

[00:27:42] Speaker 01:
The evidence supported a more limited royalty period beyond the trial date than 15 years.

[00:27:49] Speaker 01:
In addition, Your Honors, the ongoing royalty applies to any

[00:27:54] Speaker 01:
products that are not colorably different from caliber and rise.

[00:27:59] Speaker 01:
What Dr. Bianco has done is to essentially preempt all development by Globus into any expandable spacers.

[00:28:06] Speaker 01:
And he's done it based on a two-page design that the district court described as aspirational, crude, and unworkable.

[00:28:13] Speaker 01:
That is not the law of Texas trade secrets.

[00:28:17] Speaker 01:
If the court were to uphold this jury verdict and uphold the judgment, it would be the first time that a mere idea

[00:28:24] Speaker 01:
has been held to be a trade secret under Texas law and the first time that an ongoing royalty has been applied in this situation.

[00:28:30] Speaker 01:
We ask the court reverse.

[00:28:31] Speaker 04:
Thank you.

[00:28:55] Speaker 05:
On the court, Mr. Jordan.

[00:29:07] Speaker 03:
This is all morning at 10 a.m.

[00:29:08] Speaker ?:
Yeah, yeah, they were.

[00:29:36] Speaker 03:
Thank you.

[00:30:06] Speaker 03:
uh... uh...