[00:00:00] Speaker 01:
Our next case for argument is 24-1140, Versata Software versus Ford Motor Company.

[00:00:06] Speaker 01:
Mr. Lampkin, please proceed.

[00:00:07] Speaker 03:
Thank you, Your Honor.

[00:00:09] Speaker 03:
May it please the court?

[00:00:11] Speaker 03:
I'd like to begin with the breach of contract damages issue, pure issue of evidentiary sufficiency, not subject to the trade secrets cross appeal.

[00:00:18] Speaker 02:
Can I actually ask you about the unnecessary enrichment stuff?

[00:00:23] Speaker 02:
I know that's not where you want to begin, but it's where I want to begin.

[00:00:29] Speaker 02:
Hypothetically, and here's where I'm struggling with you on this unjust enrichment stuff.

[00:00:35] Speaker 02:
Hypothetically, let's assume I agree with you that the district court erred as a matter of law in excluding unjust enrichment as a possible theory.

[00:00:44] Speaker 02:
But also hypothetically, I agree with the district court's exclusion of your expert witness under Daubert on that issue because his testimony was speculative.

[00:00:59] Speaker 02:
and whatever he said.

[00:01:01] Speaker 02:
So you win on one, you lose on one.

[00:01:04] Speaker 03:
Where does that leave us?

[00:01:07] Speaker 03:
So I think it leaves you with a remand.

[00:01:08] Speaker 03:
And that's because when the district court found similar errors with respect to another reasonable royalty theory, the district court gave us a chance to fix it.

[00:01:16] Speaker 03:
And we should have that same opportunity to fix those

[00:01:20] Speaker 03:
alternative basis the district court gave here.

[00:01:22] Speaker 03:
If you look at 26,975, we should have that chance.

[00:01:25] Speaker 02:
The district court should be allowed the opportunity to consider whether to give you that chance.

[00:01:31] Speaker 02:
We shouldn't order him to give you that chance, though.

[00:01:33] Speaker 02:
I know you want us to, but that would be the first thing.

[00:01:35] Speaker 02:
We would at least like the district court to consider that opportunity.

[00:01:38] Speaker 02:
Yes, I think that's right.

[00:01:39] Speaker 02:
And the reason we didn't... Okay, I understand, because I was a little concerned that

[00:01:46] Speaker 02:
I was struggling with whether, honestly, the error was, if there is error, whether it was harmless or not.

[00:01:51] Speaker 02:
And you're, I mean, I'm sure we're going to hear that from the other side, but your argument is at the very least, the district court might give you an opportunity to supplement that expert report.

[00:02:03] Speaker 02:
I think that's exactly right, Judge.

[00:02:05] Speaker 02:
Correct.

[00:02:06] Speaker 00:
Getting back to the contract question, is it right that none of the issues presented with respect to the trade secret, the exclusion of a particular remedy, deficiencies of expert testimony, etc., none of those have spillover effect to the contract?

[00:02:25] Speaker 03:
And that's correct.

[00:02:26] Speaker 03:
I mean, there is an issue that would be for remand, which is whether it's an election of remedies issue that the district court didn't address and would.

[00:02:34] Speaker 03:
Aside from that, no, this is just purely a question of evidentiary sufficiency.

[00:02:38] Speaker 03:
And on that, there's ample evidence from which the jury could find.

[00:02:41] Speaker 00:
One more tiny preliminary question.

[00:02:44] Speaker 00:
Is it settled in this case or otherwise clear that trade secret misappropriation, unjust enrichment remedy would be for the jury rather than the judge?

[00:02:57] Speaker 03:
So unjust enrichment would be for the jury.

[00:02:59] Speaker 03:
This has come up before.

[00:03:00] Speaker 03:
Yes, it has.

[00:03:00] Speaker 03:
But in this case, because we have two statutes and both of the statutes describe them as unjust enrichment damages or a measure of damages consisting of unjust enrichment, this is something that would go to the jury.

[00:03:11] Speaker 03:
Statutory looks at it.

[00:03:12] Speaker 00:
Is that an agreed on proposition or just that's your position and... It's certainly our position and the statute... There hasn't been a ruling on that here.

[00:03:23] Speaker 03:
Pardon?

[00:03:23] Speaker 03:
There hasn't been a ruling on that here.

[00:03:25] Speaker 03:
There hasn't been a ruling on that.

[00:03:26] Speaker 03:
whether or not it would be presented to the jury or not.

[00:03:28] Speaker 03:
And the district court understood that this would go to the jury, because he said, look, I just don't have discretion to let that go to the jury, and I'm going to exclude it, as opposed to saying, I've decided it.

[00:03:37] Speaker 03:
My discretion.

[00:03:38] Speaker 03:
You can get back to that.

[00:03:39] Speaker 03:
OK.

[00:03:40] Speaker 03:
Thank you.

[00:03:41] Speaker 03:
Look, the district court found only one basis for saying that overturning the $82 million damages verdict and slashing it to $3 in nominal damages.

[00:03:49] Speaker 03:
And that was, although there was ample evidence of the revenues that we lost as a result of the breach,

[00:03:55] Speaker 03:
There wasn't sufficient evidence, supposedly, about what costs we avoided by not having to perform.

[00:04:01] Speaker 03:
But there were at least two different bases that this court really didn't tarry with.

[00:04:05] Speaker 03:
One is that there are two contracts.

[00:04:07] Speaker 03:
One contract at $14.95 million that included support and would have support costs.

[00:04:13] Speaker 03:
But another one for $10.95 million that didn't include support.

[00:04:18] Speaker 03:
And that four million dollar delta the jury could have understood would have been the price, and thus at least cover the cost of any support.

[00:04:26] Speaker 00:
Can you just remind me of the procedural history

[00:04:32] Speaker 00:
I guess I'm thinking in particular, was your expert on this issue excluded?

[00:04:39] Speaker 00:
So there was an expert... Just explain what happened.

[00:04:41] Speaker 03:
Yeah, there was a supplemental report from an expert, Nick Bann, who presented sort of a cost basis, trying to figure out if we're going to try and claim fees for the support, what the delta was, what the cost was, and what the price was, so you could come up with the difference.

[00:04:58] Speaker 03:
But that expert was excluded.

[00:05:00] Speaker 03:
And so we were left to basically say, OK, we're not going to claim the fees.

[00:05:05] Speaker 00:
And what was excluded was proposed testimony on this very measuring the contract damages issue or something different.

[00:05:14] Speaker 03:
It was actually a very different proposition.

[00:05:16] Speaker 03:
That expert was looking at how much did it cost to provide support.

[00:05:21] Speaker 03:
What we presented at jury was we were not going to claim damages in connection with the price of support.

[00:05:26] Speaker 03:
We're just going to say, we'll go with just the naked license that doesn't provide support.

[00:05:30] Speaker 03:
$10.5 million for the naked license, naked ability to use our software with no extra amount for support.

[00:05:38] Speaker 03:
And you could tell the $4 million was the difference because there was one at $14.95 million and one for 10.9 million.

[00:05:44] Speaker 03:
And Ford's own witness says the 10.95 takes out that 4 million of other types of fees and services and support

[00:05:52] Speaker 03:
and maintenance and so forth.

[00:05:54] Speaker 03:
So there's evidence which the jury could get from 14.95 million to 10.95 million, which was very close to what the jury actually came out with.

[00:06:01] Speaker 00:
Why isn't this what you just described the kind of issue of which there are some but not all such issues fall into this category where a jury needs guidance from an expert and not just from a lawyer?

[00:06:18] Speaker 03:
Well, because this is a very simple exercise, which is

[00:06:22] Speaker 03:
What was the price and were there costs?

[00:06:25] Speaker 03:
If the price is $10.9 million without support and $14.95 million with support, well the $10.95 million and the $4 million delta tells you how much profit we would have had or the maximum amount of profit we could have gotten from by providing support.

[00:06:40] Speaker 02:
How do we know that there weren't any costs associated with the $10.9 million figure?

[00:06:48] Speaker 03:
So no one has ever identified anything that would be a cost associated with that, other than the idea of support.

[00:06:54] Speaker 03:
The district court pointed to error correction, but actually the district court made a mistake on that, and I think that's where I'd like to turn this, because if you look at the contracts themselves, if you look at page 71,630, which is on volume four, and mind you, this is an already implemented set of software sitting on Ford's servers, they've been using it for a decade,

[00:07:16] Speaker 03:
So what's left is... I think we could run our software without an IT department.

[00:07:21] Speaker 03:
But of course, Ford has its own IT department.

[00:07:24] Speaker 03:
It doesn't necessarily need us.

[00:07:26] Speaker 03:
And there's actually... And they had access.

[00:07:28] Speaker 00:
They were under the cone of silence about whatever was secret in the software.

[00:07:33] Speaker 03:
They should have been under the cone of silence, but they did not do that.

[00:07:37] Speaker 03:
But if you look at Exhibit 71-630, this is the original contract from 2003, I believe.

[00:07:43] Speaker 03:
If you look at the bottom, it has a heading for support, and it says Error Corrections, Support Obligations 4.2.

[00:07:49] Speaker 03:
So this is all the support that's provided under the 2003 version.

[00:07:54] Speaker 01:
But if you flip 13 pages later... This is the support under the $14.95 million.

[00:07:58] Speaker 03:
Well, this is the very original contract.

[00:08:02] Speaker 03:
But if you go to this, and then we're going to get to the $10.95, on $71,643.

[00:08:08] Speaker 03:
And it says $11.

[00:08:11] Speaker 03:
halfway down, it says, extended support and enhancement services for unsupported software.

[00:08:15] Speaker 03:
And the first sentence says, Versada shall no longer provide generally available support and enhancements.

[00:08:21] Speaker 03:
So it says, we're no longer providing support.

[00:08:23] Speaker 03:
This contract, this addendum as of 2011, no support.

[00:08:27] Speaker 03:
Instead, look at the next page, support is separately priced out.

[00:08:30] Speaker 03:
Extended support and enhancement services term and payment schedule.

[00:08:34] Speaker 03:
The next page provides all the payment for support.

[00:08:36] Speaker 03:
So the jury had before it $10.95 million for a contract with no support,

[00:08:41] Speaker 03:
And then all these payments, $916,000, $500,000, et cetera, for the support separately.

[00:08:47] Speaker 03:
So the jury could easily determine how much was the contract with no support, nothing provided for the software already on the system, $10.95 million.

[00:08:55] Speaker 03:
How much was the support separate, which we're not going to let the jury, you're going to let us recover because we can't back out costs.

[00:09:01] Speaker 03:
That's the additional here, or the $4 million out of the $14.95 million.

[00:09:05] Speaker 02:
Was there testimony about all this?

[00:09:08] Speaker 02:
Yeah.

[00:09:08] Speaker 02:
Or did you expect the jury to just

[00:09:11] Speaker 02:
dig through the documents and make this determination on their own?

[00:09:15] Speaker 03:
Well, since it's sufficiency of the evidence, the jury isn't allowed to do this.

[00:09:19] Speaker 03:
But we did have argument, and the lawyer said, look, here's the numbers.

[00:09:22] Speaker 03:
And here's what Ford's witness said.

[00:09:24] Speaker 03:
Ford's witness said, hey, if you start at $14.95, $4 million takes out all the fees for support services.

[00:09:32] Speaker 01:
And that's exactly what the rest... So you're saying, wait, let me make sure I understand.

[00:09:35] Speaker 01:
So you're saying, look, there wasn't an expert.

[00:09:38] Speaker 01:
But the documents were provided to the jury and the lawyer walked the jury through what they should glean from the documents.

[00:09:45] Speaker 01:
Is that the idea?

[00:09:46] Speaker 03:
That's correct, but the expert, there were experts on what the value of support was.

[00:09:51] Speaker 01:
The expert, Ford's own expert said... There was no expert that testified as you just walked us through in a much clearer fashion, perhaps had you been at the trial, we wouldn't be here.

[00:10:02] Speaker 03:
but you were and so there was no expert that did what you just did with us but this is in response to what the district court said the district court instead of looking at the sufficient the evidence in june jury could make to the subtraction the jury could do this he's at all it's absolutely clear that there was some support but he went out of my house and we're going to answer it all lawyer even if a an expert to your greening expert didn't do what you just did correct so in terms of contract yet no for a contract

[00:10:30] Speaker 01:
Did a lawyer do that?

[00:10:32] Speaker 01:
Did somebody walk the jury through these documents?

[00:10:36] Speaker 01:
You gave us four volumes.

[00:10:38] Speaker 01:
I can't fathom how many volumes the jury got throughout the course of the trial.

[00:10:42] Speaker 01:
Did all of this stuff just come in a giant pile to the jury and say, have fun with it?

[00:10:47] Speaker 01:
Or did somebody walk through the documents in the wonderfully precise way you just did so that we could feel confident that the jury understood this to be one of the arguments it was deciding?

[00:10:58] Speaker 03:
Yes.

[00:10:59] Speaker 03:
We can be confident the jury understood that we talked about two contracts, one for $14.95 million, which included support.

[00:11:07] Speaker 03:
and one for 10.95 million that didn't include support and thus wouldn't have costs.

[00:11:11] Speaker 03:
And in closing, we made exactly that argument to the jury.

[00:11:15] Speaker 03:
And their own expert said that 10.95 takes out 4 million other types of fees.

[00:11:19] Speaker 03:
Their expert again says software license fees are different from additional fees charged for things like consulting services or support.

[00:11:26] Speaker 03:
These are things that the jury

[00:11:28] Speaker 02:
in under the Supreme Court in Coleman even though your expert was included their expert provided testimony that distinguished between the licenses and the cost.

[00:11:38] Speaker 03:
Yeah and the only testimony that was excluded from our expert was an effort to try and go through and say here's how many hours you put in here were your costs etc.

[00:11:45] Speaker 01:
There was nothing that said... Are there any non-support costs?

[00:11:47] Speaker 01:
Pardon?

[00:11:47] Speaker 01:
So you've now distinguished between support

[00:11:50] Speaker 01:
and the two contracts, are there any non-support costs?

[00:11:54] Speaker 03:
No one has ever identified any cost other than things like error correction support that were not included in that contract.

[00:12:00] Speaker 03:
If I can turn very briefly then to the Chase Secrets question, I wanted to focus on non-unjust enrichment, although that is a concern for us, but the second and third

[00:12:13] Speaker 03:
scenarios of reasonable royalties, the district court excluded.

[00:12:16] Speaker 01:
Well, if we think there's something wrong with unjust enrichment, they were predicated on that, so they have to come back in.

[00:12:21] Speaker 01:
So is that what you want to focus on?

[00:12:23] Speaker 01:
Because if so, we're done.

[00:12:24] Speaker 03:
What else?

[00:12:25] Speaker 03:
Well, if the court believes that there was the same mistake, yes, but it's a double error, because the district court said you just plain can't count Ford's benefit.

[00:12:32] Speaker 03:
But one of the core things and parties that are negotiating a license.

[00:12:36] Speaker 01:
But we don't have to reach this issue.

[00:12:37] Speaker 01:
If we, unless I'm mistaken, if we agree with you, there's a problem with unjust enrichment.

[00:12:41] Speaker 01:
It's clear that unjust enrichment pervaded the two of the three.

[00:12:45] Speaker 01:
Yes.

[00:12:46] Speaker 03:
If you agree with us, I think it falls a fortiori.

[00:12:48] Speaker 03:
It becomes doubly error.

[00:12:50] Speaker 03:
In that case, I'd like to reserve any of the remaining time for rebuttal.

[00:12:53] Speaker 03:
Thank you.

[00:12:53] Speaker 03:
Ms.

[00:12:56] Speaker 01:
Ellsworth.

[00:13:03] Speaker 04:
Good morning, your honors, and may it please the court, Jessica Ellsworth for Ford Motor Company.

[00:13:09] Speaker 04:
I'd like to spend 12 minutes on our appeal and cross-appeal and reserve three minutes for rebuttal.

[00:13:15] Speaker 04:
On Versada's appeal, first, the district court acted within its discretion to exclude Versada's unjust enrichment damages model, which the court found fell short under Daubert and Rule 702 on both relevance grounds and separately for reliability reasons.

[00:13:31] Speaker 02:
But if we read the district court's opinion as doing both that and saying, as a matter of law, unjust enrichment is inappropriate when there is licensing, if we read it that way, I know you don't want us to read it that way, but if you read it that way, that's wrong as a matter of law, isn't it?

[00:13:52] Speaker 02:
That you can't have an unjust enrichment theory in a licensing scenario?

[00:13:58] Speaker 04:
So, Your Honor, I think that

[00:14:00] Speaker 04:
I want to make sure to answer your question.

[00:14:01] Speaker 04:
I think the district court said this unjust enrichment model... No, no, no.

[00:14:05] Speaker 02:
I understand what you want to argue.

[00:14:06] Speaker 02:
My question is, and you can treat it as hypothetical if you want.

[00:14:09] Speaker 02:
I'm not making you concede anything.

[00:14:11] Speaker 02:
If the district court found that as a matter of law, you cannot have an unjust enrichment theory if there's a history of licensing between the parties and that you can only use a reasonable royalty theory, that's wrong as a matter of law, right?

[00:14:25] Speaker 04:
If you find that that is wrong as a matter of law.

[00:14:28] Speaker 02:
No, I'm asking you, is that wrong as a matter of law if that's what he decided?

[00:14:33] Speaker 02:
I understand you think that's not what he decided.

[00:14:35] Speaker 02:
But if that is what he decided, is it wrong?

[00:14:39] Speaker 04:
So I think if it were a blanket statement that you could never have an unjust enrichment model.

[00:14:44] Speaker 02:
That's what I'm asking you.

[00:14:47] Speaker 02:
When there's license.

[00:14:47] Speaker 04:
I think there is no case law that goes either way on that question.

[00:14:52] Speaker 04:
And the issue here,

[00:14:54] Speaker 02:
is that we are in a Dow-Bear and Rule 702 context.

[00:15:12] Speaker 02:
As a matter of law, you can do it, but clearly courts have said you can have an unjust enrichment theory even if there's licensing.

[00:15:20] Speaker 02:
You agree with that, right?

[00:15:21] Speaker 04:
So Your Honor, I think the Russo case... Can you answer my question?

[00:15:24] Speaker 04:
Well, I don't think there is a case that has a history of licensing in which a court has awarded unjust enrichment.

[00:15:32] Speaker 02:
Are you trying to argue that the district court, if that's what the district court said, what I think he said is right, that you can never have unjust enrichment if there's licensing?

[00:15:43] Speaker 04:
Your Honor.

[00:15:43] Speaker 02:
Your position?

[00:15:44] Speaker 02:
I know you don't.

[00:15:46] Speaker 04:
I don't think you need to go as far as to do that.

[00:15:48] Speaker 02:
No, but you're here before us to help.

[00:15:50] Speaker 02:
This is an important legal question.

[00:15:52] Speaker 02:
And if we rule in his favor, we're going to have to address that.

[00:15:56] Speaker 02:
You need to take a position on this, I think.

[00:15:59] Speaker 02:
I mean, if you don't want to, you don't have to.

[00:16:01] Speaker 02:
But you're here to aid us in deciding how we're going to address this important trade secrets damages issue.

[00:16:08] Speaker 02:
And I still am struggling with whether you think

[00:16:11] Speaker 02:
that as a matter of law, you can or cannot have unjust enrichment damages if there's a history of licensing.

[00:16:19] Speaker 04:
Your Honor, the reason I'm struggling with the answer to your question, and I don't want to question you.

[00:16:26] Speaker 02:
I think we have to answer that question.

[00:16:27] Speaker 02:
I don't think you do.

[00:16:29] Speaker 02:
Yeah, well, I think we do.

[00:16:31] Speaker 02:
OK.

[00:16:32] Speaker 02:
So if I think we do, we may not ultimately.

[00:16:35] Speaker 02:
But if I think we do, do you have an answer to help us, or are you just going to advocate?

[00:16:39] Speaker 04:
So I do not think that a plaintiff who says, I want to seek unjust enrichment damages, automatically gets to do so.

[00:16:49] Speaker 04:
There is a gatekeeping rule.

[00:16:50] Speaker 02:
Are they automatically excluded from doing so?

[00:16:53] Speaker 04:
They're not automatically excluded, no.

[00:16:55] Speaker 04:
They are not automatically excluded.

[00:16:57] Speaker 04:
That's where Daubert and Rule 702 come into play.

[00:17:00] Speaker 04:
And the Russo case that Versado wants you to focus on,

[00:17:04] Speaker 04:
does point out that the statute authorizes different sorts of damages, but nothing in Brousseau or any other case says that the statutes override a district court's gatekeeping function to look at the facts and circumstances in a particular case and determine if an expert's model is a good fit.

[00:17:24] Speaker 04:
And that is what the district court did here.

[00:17:27] Speaker 00:
So a perhaps more, I don't think this changes the analysis.

[00:17:35] Speaker 00:
you know, Daubert type reliability assessments.

[00:17:39] Speaker 00:
But there was also the piece where the district court either said, because you've repeatedly licensed, you can't seek to get as damages what would otherwise be disgorgement of gain from the defendant.

[00:17:54] Speaker 00:
And there's a slightly more modest version, which is that that would not be unjust enrichment.

[00:18:04] Speaker 00:
So that sounds like a legal proposition.

[00:18:10] Speaker 04:
I think you are exactly right that the court said in the facts and circumstances of this case, applying my Daubert gatekeeping function to look at whether this use of an unjust enrichment model fits the case.

[00:18:25] Speaker 04:
It doesn't.

[00:18:26] Speaker 04:
Because we have 10 plus years of licensing this software.

[00:18:30] Speaker 04:
And Versata built its whole case around the idea that Ford should have

[00:18:35] Speaker 04:
continued to license the software until it had achieved independently its own version of it.

[00:18:41] Speaker 04:
So this whole case was built around the fact Ford could have done this, it just would have taken them longer.

[00:18:46] Speaker 00:
And that's because what they charged, two things, this is on the royalty side, what they charged in the license was for a serious cone of silence, let's call it that, and not use it to develop your, which would not be independent, but also that

[00:19:04] Speaker 00:
just as a matter of law, the statutory federal and state, that the statute says one of the options for the plaintiff is to get whatever the gain was that the defendant had, even if we were willing to live with, over the years, a lower payment.

[00:19:31] Speaker 00:
because it's really bad conduct.

[00:19:33] Speaker 00:
That's the idea of this.

[00:19:34] Speaker 00:
That's why you build in this unjust enrichment.

[00:19:38] Speaker 00:
So even with the unjust label that the district court used, I'm not sure that changes the fundamental proposition.

[00:19:45] Speaker 04:
So again, this is all about the relevance concern that the district court had with this theory, but it was that there was nothing unjust about paying the license fee to continue using

[00:19:58] Speaker 04:
the software.

[00:20:01] Speaker 04:
And so that is why the district court said this is a case where unjust enrichment and actually reasonable royalty, those two paths really come together.

[00:20:08] Speaker 04:
Because the way this history of this relationship worked is that the value of using that software, including during the period of time that Ford would have needed to independently develop it, was the license fee.

[00:20:21] Speaker 00:
So can I get you now to shift back to what you've been trying to talk about is the reliability concerns.

[00:20:30] Speaker 00:
I think Mr. Lamkin makes the point that he should have the opportunity

[00:20:37] Speaker 00:
to have his expert correct identified deficiencies.

[00:20:41] Speaker 00:
And one reason that's non-speculative is that something like that second chance was given for kind of related deficiencies.

[00:20:51] Speaker 00:
Can you address that?

[00:20:52] Speaker 04:
I am happy to address that, Your Honor.

[00:20:54] Speaker 04:
So I would start with the fact that the court spent seven pages talking about the reliability problems when it first excluded it.

[00:21:01] Speaker 04:
Those are at APX 30 to 37.

[00:21:03] Speaker 04:
And there were at least three different separate reliability problems.

[00:21:07] Speaker 04:
that the district court identified.

[00:21:09] Speaker 04:
And then Versado did seek reconsideration.

[00:21:12] Speaker 04:
It came back and said, let us have a do-over.

[00:21:14] Speaker 04:
Here's our attempt at a do-over.

[00:21:16] Speaker 04:
And if you look at page APPX 84, which is in the district court's opinion on reconsideration,

[00:21:24] Speaker 04:
the court goes on to say there that it excluded the testimony for reasons beyond Elson's use of unjust enrichment, and it walks through these multiple independent grounds that supported the decision to exclude their testimony.

[00:21:36] Speaker 04:
If Versata had had a way to correct those problems, the time to do it was when it was already seeking reconsideration of the court's ruling.

[00:21:44] Speaker 04:
It's not now, many years later, when they have gone through trial

[00:21:49] Speaker 04:
They have lost on Jamal.

[00:21:51] Speaker 00:
Is Mr. Larkin right that a similar correction opportunity was provided with respect to, you know, related deficiencies in the, I guess, on the royalty side?

[00:22:04] Speaker 04:
So the answer is no.

[00:22:05] Speaker 04:
A similar correction was not made.

[00:22:08] Speaker 04:
And you can see this because the $134 million per year number that Versado wanted to use

[00:22:18] Speaker 04:
The court found was based on projections.

[00:22:20] Speaker 04:
It was not clear that what is ever used in the court's assessment of this information, which was in front of it.

[00:22:26] Speaker 04:
And again, this is all within district court's discretion.

[00:22:30] Speaker 00:
The 134, that's the unjust enrichment value.

[00:22:36] Speaker 04:
It could not correct the problems with that unreliability problem because it didn't have

[00:22:42] Speaker 04:
a way to make that number be a reliable projection of cost savings starting in 2015.

[00:22:49] Speaker 04:
That is what the court said.

[00:22:50] Speaker 04:
So there were some apportionment problems, the failure to apportion that 134 million.

[00:22:55] Speaker 00:
And why was a different deficiency for which correction, the district court did allow correction different from that?

[00:23:05] Speaker 04:
So even today, Your Honor, I don't understand Versada to have any argument for what it could have done to correct

[00:23:12] Speaker 04:
the use of this $134 million number that had no actual basis in any actual computation of cost savings that was attributable to the trade secrets.

[00:23:23] Speaker 04:
There's nothing they could do about that.

[00:23:25] Speaker 04:
And that is one of the reliability problems that the court identified.

[00:23:29] Speaker 04:
That alone is a reason that this damages model was excluded, was properly excluded, and any of the other arguments really do amount to harmless error, judge use, because there is no way around that

[00:23:41] Speaker 02:
reliability problem at all, and it was certainly within the district court's discretion when looking at those documents, many of which... What about the error with regard to the two reasonable royalty theories that were excluded, if we conclude that there's error?

[00:24:01] Speaker 04:
So there were problems with those other two reasonable royalties.

[00:24:04] Speaker 04:
I think there are at least three problems.

[00:24:06] Speaker 04:
One is that... Are these problems that the district court found expressly?

[00:24:10] Speaker 04:
Yes, Your Honor.

[00:24:11] Speaker 04:
Let me be clear.

[00:24:12] Speaker 01:
Yes.

[00:24:12] Speaker 01:
And tell me what page so I can reference it.

[00:24:15] Speaker 04:
I do not have the page number, but if I may use part of my rebuttal time, I will give you the page number.

[00:24:21] Speaker 04:
The district court found that there was no trade secret by trade secret allocation of the, in scenario two and three of this reasonable royalty model.

[00:24:32] Speaker 04:
Versado was trying to do two things.

[00:24:35] Speaker 04:
It was trying to claim 8.3 years, the duration, to build software independently.

[00:24:41] Speaker 04:
And then it was trying to say, but Ford, you saved development costs because you built it in three and a half years.

[00:24:47] Speaker 04:
So we want to get that long period of time and we want to get all the development costs that it took to build PDO.

[00:24:54] Speaker 04:
Well, there was a mismatch there between the time periods.

[00:24:58] Speaker 04:
They couldn't get 8.3 years if what they were really talking about was the saved development costs.

[00:25:03] Speaker 04:
But the development costs did not relate to the trade secrets.

[00:25:06] Speaker 04:
The development costs were for the entirety of the PDO software.

[00:25:10] Speaker 01:
You're now in your rebuttal time and that's fine.

[00:25:13] Speaker 01:
It's your time to use, but you didn't really meaningfully address his arguments on the contract damages.

[00:25:19] Speaker 01:
Do you want to at least spend a minute doing that?

[00:25:22] Speaker 01:
Because I feel like that was where all his time was spent.

[00:25:25] Speaker 04:
Yes, Your Honor.

[00:25:25] Speaker 04:
I would be very happy to spend a minute of time on that.

[00:25:28] Speaker 04:
I think that the contract damages, the district court was exactly right when it found there was no expert who testified about contract damages.

[00:25:37] Speaker 04:
There was no witness who talked about contract damages.

[00:25:41] Speaker 04:
There was no document that calculated contract damages.

[00:25:44] Speaker 04:
There is one passing line in the closing statement where Versada's lawyer said, as an alternative, maybe you could use this $10.5 million number, but you shouldn't do it.

[00:25:58] Speaker 04:
That's it.

[00:25:59] Speaker 04:
That is the only reference to that in connection with the contract damages.

[00:26:03] Speaker 01:
And I would note that... So, you heard me ask Mr. Lamkin a lot of questions about, you know, well, maybe if you had been at the trial court and walked the jury through what you just walked us through, is that sort of where you stake your flag?

[00:26:19] Speaker 01:
That's exactly right, Your Honor.

[00:26:21] Speaker 01:
They

[00:26:22] Speaker 01:
absolutely did not present this issue to the jury this way.

[00:26:25] Speaker 04:
Is that what you're... They absolutely did not present the issue to the jury this way.

[00:26:29] Speaker 04:
And Judge Moore, they didn't present it this way for a reason, which is that the court excluded them from seeking lost profit damages in advance of trial.

[00:26:38] Speaker 04:
They then moved to clarify that they could try to get that testimony in through a fact witness.

[00:26:45] Speaker 04:
Ford objected and said, for all the same reasons, we didn't do discovery on lost profits.

[00:26:49] Speaker 04:
You cannot bring this in now.

[00:26:50] Speaker 04:
And they withdrew their objection.

[00:26:52] Speaker 04:
So they made zero effort at trial to do what the jury ultimately was instructed it had to find, which was not put Versada in a better place than it would have been with full performance.

[00:27:04] Speaker 04:
So the district court was exactly right that they didn't give the jury the evidence through an expert, through a witness, through a document.

[00:27:12] Speaker 04:
Well, the documents were there.

[00:27:13] Speaker 04:
The two contracts were there.

[00:27:15] Speaker 04:
And one of them laid out costs for support.

[00:27:18] Speaker 04:
So your honor, one of them laid out costs for enhanced support and that enhanced support costs replaced the support that was in the original contract.

[00:27:27] Speaker 04:
But if what they want to do now, the argument I heard from Mr. Lampkin is we want to go back to that original contract.

[00:27:32] Speaker 04:
That original contract had built in support for it.

[00:27:35] Speaker 04:
And Ms.

[00:27:35] Speaker 04:
McMahon, the expert who was excluded, attributed over a million dollars to support costs in that contract.

[00:27:42] Speaker 04:
It was excluded because we said, we think the number is much higher.

[00:27:45] Speaker 04:
We didn't get a chance to do discovery in this.

[00:27:47] Speaker 04:
It wasn't disclosed at the correct time.

[00:27:50] Speaker 04:
The district court agreed with us.

[00:27:52] Speaker 04:
The only other reference to profit margins in the case was from a witness during a deposition who gave a much lower number for the profit margin.

[00:28:01] Speaker 04:
But again, this wasn't explored in discovery because of how Versada disclosed

[00:28:06] Speaker 04:
what damages it was going to seek in response to, I think that the district court pointed to 10 different times that Ford had asked for how it was going to calculate contract damages.

[00:28:16] Speaker 04:
I'd like to save the tiny remainder of my time.

[00:28:18] Speaker 04:
Thank you, your honor.

[00:28:33] Speaker 03:
So beginning with contract,

[00:28:34] Speaker 03:
The Supreme Court was clear and was common that when you're looking at sufficient of the evidence for Jamal, it's not a fine parsed effort.

[00:28:42] Speaker 02:
Sure, but I think our struggle is you walked us through a very reasonable way to get there.

[00:28:49] Speaker 02:
And if you had said that even as attorney argument to the jury, I know you weren't there, bad for Versada, that makes sense.

[00:28:59] Speaker 02:
But what in the record can you support

[00:29:04] Speaker 02:
Or can you point to that shows not just the documents that are there that you now have put together, but that the jury was told this is a way you could do it?

[00:29:15] Speaker 02:
Are they right?

[00:29:16] Speaker 02:
It's one stray sentence in the closing?

[00:29:19] Speaker 03:
In the closing, the closing says flat out that if you take out or strip out support and main services.

[00:29:26] Speaker 03:
Page number?

[00:29:27] Speaker 03:
Oh, I'm sorry.

[00:29:27] Speaker 03:
57,000, zero, zero, eight.

[00:29:30] Speaker 01:
I'm sorry, say it again.

[00:29:30] Speaker 03:
57,000, zero, zero, eight.

[00:29:33] Speaker 03:
And this is page 126, starting on line 21.

[00:29:38] Speaker 03:
This is volume.

[00:29:45] Speaker 03:
And it says, if you take out or strip out.

[00:29:47] Speaker 03:
Sorry, can you just say it one more time?

[00:29:49] Speaker 03:
57,000, zero, zero, eight.

[00:29:50] Speaker 01:
I'm going to give you a little extra time, so breathe.

[00:29:53] Speaker 03:
You got me.

[00:29:55] Speaker 03:
57,000, zero, zero, eight.

[00:29:57] Speaker 03:
okay and it's page since it's on a mini-script there's four pages per page you have to go to page one twenty-six which is your upper left-hand corner you read it it's line twenty one two if you take out basically what are called support and maintenance payments the number could come down to ten ninety-five for twenty fourteen so if you strip out

[00:30:25] Speaker 03:
That's not really realistic because it's going to use our software, but they want ours.

[00:30:29] Speaker 03:
They're going to want our software and support that they would, that they paid for every year.

[00:30:32] Speaker 03:
So he says, hey, if you strip that out, you're down to 10.95.

[00:30:36] Speaker 03:
And when we look at juries, juries sit in the room, 12 of them, going through the testimony.

[00:30:41] Speaker 03:
They're recollecting the testimony, going through the documents they have.

[00:30:44] Speaker 03:
And they had Elson, excuse me, they had Ford's own witness say, flat out, that it's 10.95 without the services.

[00:30:54] Speaker 03:
They had our witness saying, 10 points.

[00:30:56] Speaker 01:
So Davis says- We're going to make you walk through every piece of evidence.

[00:31:02] Speaker 01:
I just want to be quick so you know what's about to happen.

[00:31:04] Speaker 01:
That's great.

[00:31:04] Speaker 01:
So you don't feel like you're rushed.

[00:31:06] Speaker 03:
Oh no, it's fine.

[00:31:07] Speaker 03:
So first with Ford's expert Davis, you go to page 56,805, page 96.

[00:31:13] Speaker 03:
So page 96 is in your upper right-hand corner there.

[00:31:26] Speaker 03:
And the expert explains that the 10.95 takes out that four million of other types of fees and services and support and maintenance and so forth.

[00:31:38] Speaker 03:
I guess it's, yeah, 50.05, and it's at 96 to 97.

[00:31:42] Speaker 03:
So it goes four lines into 97 right below.

[00:31:46] Speaker 03:
Because it takes out that four million of other types of fees and services and support and maintenance and so forth.

[00:31:52] Speaker 03:
And then the witness then says, but there's other problems.

[00:31:55] Speaker 03:
But those problems all related to the fact that they thought that Ford could develop the software more quickly, or they didn't like the fact that it was, how it was allocated among trade secrets.

[00:32:04] Speaker 03:
But in terms of what the price was for the naked use of the license, the naked use of the software without support, this is absolutely clear from their own witness that it's $10.95 million.

[00:32:15] Speaker 03:
And then our witness agreed saying,

[00:32:22] Speaker 03:
The base license fee, quote, without any of the support or services or extras.

[00:32:26] Speaker 03:
Page 56,576.

[00:32:28] Speaker 03:
I'm sorry about that.

[00:32:30] Speaker 03:
Page 6,576.

[00:32:32] Speaker 03:
Correct.

[00:32:33] Speaker 03:
And this is page 12, lines 18 to 22.

[00:32:38] Speaker 03:
And this is our expert, McVann, saying the 10.59 million is a base license fee without any of the support or services or extras.

[00:32:45] Speaker 01:
Where?

[00:32:46] Speaker 01:
What line?

[00:32:46] Speaker 01:
I don't see it.

[00:32:47] Speaker 03:
Sorry.

[00:32:47] Speaker 03:
12 to 18, unless I've got me in the wrong page.

[00:32:49] Speaker 01:
Page 12.

[00:32:50] Speaker 03:
56,576.

[00:32:52] Speaker 01:
Yeah, down there.

[00:32:52] Speaker 01:
Now, which of the four pages on that page?

[00:32:56] Speaker 03:
That's going to be page 12.

[00:32:59] Speaker 01:
Okay.

[00:32:59] Speaker 03:
Lines 18 to 22.

[00:33:00] Speaker 01:
18 to 22 is a question, it's not an answer.

[00:33:10] Speaker 03:
I'm sorry.

[00:33:11] Speaker 01:
That's okay.

[00:33:12] Speaker 03:
I'm looking at the wrong thing here.

[00:33:13] Speaker 03:
Let me look again.

[00:33:14] Speaker 03:
It doesn't say anything about that point in time.

[00:33:20] Speaker 03:
18 to 22.

[00:33:21] Speaker 03:
Let's see.

[00:33:26] Speaker 00:
At the bottom of 13, at least the number 10.95 appears.

[00:33:30] Speaker 03:
Yeah.

[00:33:32] Speaker 03:
I'm sorry.

[00:33:33] Speaker 03:
All right.

[00:33:34] Speaker 03:
So I've just got a typo.

[00:33:35] Speaker 03:
If you look at page 12, it's lines 18 to 22.

[00:33:39] Speaker 03:
It's the left-hand column on 56576, left-hand side, lines 18.

[00:33:45] Speaker 03:
Question, that's fine.

[00:33:45] Speaker 03:
You said the base license fee in the exhibit.

[00:33:48] Speaker 03:
Not by you mean the base.

[00:33:49] Speaker 03:
The base license fee is without any of the support, services, or extras.

[00:33:53] Speaker 03:
I'll tell you.

[00:33:53] Speaker 03:
I'll put it that way.

[00:33:55] Speaker 03:
Answer, right.

[00:33:58] Speaker 02:
That base license fee that it's referring to is the 10.9 number?

[00:34:02] Speaker 03:
Yes, exactly.

[00:34:03] Speaker 03:
Where you have all the support is separate on the following.

[00:34:06] Speaker 03:
Exactly.

[00:34:08] Speaker 03:
That's ample evidence for the jury.

[00:34:10] Speaker 03:
the district court in trying to come up with some cost that wasn't done, that's the exact opposite of what you do on Rule 50.

[00:34:16] Speaker 03:
You respect the judgment of the jurors.

[00:34:18] Speaker 03:
If the court would indulge me just a tiny bit more, the alternative grounds?

[00:34:23] Speaker 01:
Yeah, go ahead.

[00:34:24] Speaker 02:
I have a question.

[00:34:25] Speaker 02:
I'm going to make you switch again back to, I think, the trade secrets and the reasonable royalty rates.

[00:34:33] Speaker 02:
We talked about the three theories, and only one was allowed and two were not allowed.

[00:34:39] Speaker 02:
Opponent talked about pages 84 and 85 of the appendix of district court's opinion as a basis for why the unjust enrichment error, if we find it, would be harmless for excluding those.

[00:34:55] Speaker 02:
I didn't quite follow it, but I wanted to hear what your response on that was.

[00:34:59] Speaker 03:
Right, and so all those types of issues are things that we got a second chance on on the other theories.

[00:35:06] Speaker 03:
There is one that is not parallel.

[00:35:09] Speaker 03:
Ms.

[00:35:09] Speaker 03:
Ellsworth is absolutely right.

[00:35:10] Speaker 03:
There's one about the data being outdated.

[00:35:12] Speaker 03:
Ms.

[00:35:13] Speaker 00:
Ellsworth spoke, I think, pretty specifically about a claim of $134 million.

[00:35:20] Speaker 00:
What was that about?

[00:35:22] Speaker 03:
This is a distinction between

[00:35:24] Speaker 03:
the two reasonable royalty theories that were excluded and the, um, the unjust.

[00:35:28] Speaker 03:
I thought that was 134 was the unjust enrichment.

[00:35:31] Speaker 00:
Right.

[00:35:31] Speaker 00:
And what was the claim of 134 for that?

[00:35:35] Speaker 00:
Right.

[00:35:35] Speaker 00:
That was what was, what did the 134, um, report to be?

[00:35:39] Speaker 03:
That purported to be, and that was how much Ford saved.

[00:35:43] Speaker 03:
by using our software in terms of avoiding errors, misspels, corrections, and things like that in building its cars.

[00:35:50] Speaker 03:
And so that is the unjust enrichment it had from using our software illicitly or improperly in order to build cars, which it described as its billion-dollar problem.

[00:36:00] Speaker 03:
Our software solved it.

[00:36:02] Speaker 00:
Did the district court say that that was just unavoidably too speculative?

[00:36:08] Speaker 03:
Well, the district court's objection to it was that it was based on old data as opposed to more current data.

[00:36:13] Speaker 03:
But that's the type of thing that can be fixed, or someone can make a correction based on it.

[00:36:17] Speaker 03:
We simply were never given the opportunity to make a correction for that, notwithstanding being given the ability to do a correction with respect to other theories.

[00:36:25] Speaker 03:
We didn't get that opportunity because the district court proceeded on the erroneous premise that when you do unjust enrichment, if there's a licensing history, you are precluded from doing unjust enrichment.

[00:36:34] Speaker 03:
You have to go on the licensing history.

[00:36:36] Speaker 01:
And likewise, you made the same mistake with the... So is it your position that all of these issues that Ms.

[00:36:43] Speaker 01:
Ellsworth pointed to are somehow intertwined with the mistake related to unjust enrichment?

[00:36:49] Speaker 01:
Because I really felt she separated the issues out pretty effectively and demonstrated that some of the concerns articulated by the judge on page 84 and 85 would not be cured in any way by anything related to your supplementation on unjust enrichment.

[00:37:05] Speaker 03:
So those concerns were unrelated to the district court's holding on unjust enrichment.

[00:37:11] Speaker 03:
Correct.

[00:37:12] Speaker 03:
The district court, however, could have given us the ability to correct those concerns in supplemental form, as it did with respect to other things.

[00:37:20] Speaker 02:
So this just comes down to the same thing on the overarching thing, is if we think the district court should look at this again in light of what we think is the legal error

[00:37:32] Speaker 02:
have the district court make the decision over whether to give you an opportunity rather than for us to find it harmless.

[00:37:39] Speaker 03:
I think that's right for unjust enrichment.

[00:37:42] Speaker 03:
For the reasonable royalty, I think the error is absolutely clear that when you do a reasonable royalty, the sole reason given, and this is pages 94 and 95, the sole reason given for excluding our models two and three was you can't get any of Ford's benefit.

[00:37:55] Speaker 03:
But when you have an arms-length negotiation over a license, you consider the benefit to the defendant.

[00:38:01] Speaker 03:
That's settled law.

[00:38:02] Speaker 03:
If the cross has no further questions.

[00:38:03] Speaker 00:
I do actually want to introduce a new topic that I know Ms.

[00:38:06] Speaker 00:
Ellsworth wanted to talk about and ran out of time, but very briefly on the cross appeal.

[00:38:11] Speaker 00:
I'm not interested in the question of whether the filing of a notice of a cross appeal was improper, so don't address that.

[00:38:19] Speaker 00:
On the merits, explain to me what the allegedly evidence-less necessary element is and

[00:38:31] Speaker 00:
why there is sufficient evidence to meet that.

[00:38:35] Speaker 00:
Something having to do with, even though Ford knew all of your secrets, didn't know how you combined them or something?

[00:38:43] Speaker 03:
Yeah, I think that is, Ford's theory is that they had to know

[00:38:47] Speaker 03:
precisely what the trade secret consisted of.

[00:38:50] Speaker 03:
And if they didn't know that the precise combination of workspace, buildability, and grid consisted of the trade secret, then it gets a get out of jail free card.

[00:38:59] Speaker 01:
So I understand your argument on this to basically boil down to, we told them every single one of the individual things were trade secreted.

[00:39:08] Speaker 01:
How could the combination not be?

[00:39:12] Speaker 03:
I think it may be a little better than that.

[00:39:14] Speaker 03:
I think that's a little better than that, which is that Ford was given and knew that it wasn't allowed to copy our software outright.

[00:39:22] Speaker 03:
It couldn't steal everything.

[00:39:23] Speaker 03:
And what it did was it stole three of the most critical elements.

[00:39:27] Speaker 03:
the buildability of the grid and the workspace.

[00:39:30] Speaker 03:
And you just can't escape knowing that that was absolutely part of our trade secret.

[00:39:34] Speaker 03:
And it's a reason to no standard, even under the common law.

[00:39:37] Speaker 03:
But here, it was given to them under a confidentiality agreement, which gave them every reason to think that they can't copy it unless it's in the public domain.

[00:39:44] Speaker 03:
There's no argument that any of that was in the public domain.

[00:39:46] Speaker 03:
If there are no further questions, thank you so much, John.

[00:39:51] Speaker 01:
OK.

[00:39:51] Speaker 01:
Tell us where.

[00:39:54] Speaker 01:
Please limit yourself, obviously, to cross appeal.

[00:39:58] Speaker 04:
I am happy to limit myself to the cross appeal.

[00:40:04] Speaker 04:
Fair enough.

[00:40:05] Speaker 04:
You find happiness in strange places.

[00:40:08] Speaker 04:
Exactly.

[00:40:09] Speaker 04:
Understood.

[00:40:10] Speaker 04:
I will resist the urge to correct a few other things.

[00:40:14] Speaker 04:
On the conditional cross appeal, I think our argument is very straightforward.

[00:40:18] Speaker 04:
Both of these statutes require knowledge of the trade secret, and when you look at

[00:40:24] Speaker 04:
The district court, I think, correctly pointed to, the district court acknowledged that he didn't see any way that this combination had ever been disclosed as a combination.

[00:40:36] Speaker 00:
When you say this combination, what are you referring to?

[00:40:40] Speaker 00:
And in particular, how does that two-word phrase relate to the buildability, the other two things?

[00:40:47] Speaker 00:
Is each one of those a combination?

[00:40:50] Speaker 04:
This really all came up during

[00:40:54] Speaker 04:
During discovery as a way to avoid their damages expert getting thrown out they came up with these combination theory so build ability your honor there's a user guide section on build ability it only mentions one of the features that they say are the build ability trade secret to find the others.

[00:41:12] Speaker 04:
you have to look on pages 250, 254, 395, and 434 of the user guide.

[00:41:19] Speaker 04:
And you have to somehow know that if you pluck those features, you combine them with one that's in the buildability section, and then you go to a different document.

[00:41:27] Speaker 04:
And you pull one more feature from this other document, somehow when you put those six things together, there is a protected trade secret.

[00:41:34] Speaker 00:
And the district court thought, right, ruled that there was sufficient evidence to avoid JMA on that, right?

[00:41:43] Speaker 04:
So your honor, I think the district court with some concern said that if he had been sitting on the jury, he would have found this wasn't met because all they did was point to this mountain of documents.

[00:41:54] Speaker 04:
And if I could just make two points on that, I think pointing to the mountain of documents was too vague and too inclusive.

[00:42:00] Speaker 04:
And I just want to explain what I mean by that.

[00:42:02] Speaker 04:
It was too vague because the constituent elements of these trade secrets were never identified as somehow going together.

[00:42:09] Speaker 04:
to create a superior product.

[00:42:12] Speaker 04:
And if you think about it, if I gave you a list of a thousand ingredients and buried among that thousand ingredients happen to be the ten ingredients that are in the secret formula for Coca-Cola.

[00:42:23] Speaker 04:
But I don't ever tell you that those ten are the ones that go together.

[00:42:26] Speaker 04:
If you combine those ten and you say, wow, this tastes a lot like Coca-Cola,

[00:42:31] Speaker 04:
Giving you that 1,000 list, that list of 1,000 ingredients did not give you knowledge of the trade secret for Coca-Cola.

[00:42:39] Speaker 01:
What if they said all 1,000 of these are trade secreted?

[00:42:43] Speaker 04:
So they didn't do that.

[00:42:45] Speaker 04:
That is, I think, a big problem with their case.

[00:42:47] Speaker 04:
And it's why I heard Mr. Lang can do it.

[00:42:49] Speaker 04:
He wants to talk about benefits that Ford got from using our software.

[00:42:53] Speaker 04:
But in trade secret misappropriation, they had three combinations that they said were trade secrets.

[00:42:59] Speaker 04:
And those combinations together added up to 5 plus 6 plus 3.

[00:43:04] Speaker 04:
That's 8 plus 5.

[00:43:05] Speaker 04:
13 elements out of hundreds or thousands of elements in this software.

[00:43:10] Speaker 04:
That's it.

[00:43:10] Speaker 04:
It's a teeny tiny fraction of the information.

[00:43:15] Speaker 04:
But they told you the software was trade secretive, right?

[00:43:19] Speaker 04:
No, Your Honor, the software was confidential.

[00:43:22] Speaker 04:
And so that's why I think they had a breach of contract argument that was about confidentiality.

[00:43:27] Speaker 04:
The trade secrets were these very specific elements, just those elements and not others.

[00:43:32] Speaker 04:
So for example, there's one section where local codes fall into a trade secret, but on the very same page, they're just a discussion of global codes.

[00:43:41] Speaker 04:
The global codes aren't a trade secret, just the local codes are.

[00:43:44] Speaker 04:
There is no way that a reasonable person presented with this

[00:43:50] Speaker 04:
2,000 plus pages of material about this software and using the software would know how to pluck these various elements from very disparate places in the description of the software and somehow know that it was a combination trade secret.

[00:44:05] Speaker 04:
So for those reasons, Judge Hughes, you were looking for where there are areas that the law needs to be developed.

[00:44:10] Speaker 04:
I think this question of what knowledge means in the context of a combination trade secret is an extremely important area for development of the law.

[00:44:19] Speaker 01:
Thank you, Your Honors.