[00:00:00] Speaker 02:
997, Cajun Services Unlimited versus Benton Energy Service Company.

[00:00:05] Speaker 02:
Mr. Ricci, whenever you're ready.

[00:00:08] Speaker 02:
Did I mispronounce your name?

[00:00:10] Speaker 00:
That is absolutely correct, Your Honor, and good morning and may it please the Court.

[00:00:14] Speaker 00:
This is Devin Ricci with Keen Miller on behalf of Appellant Benton Energy Services Company, better known as BESCO throughout the briefing.

[00:00:22] Speaker 00:
May I proceed?

[00:00:23] Speaker 00:
Please do.

[00:00:25] Speaker 00:
Your honors, unless there are any specific questions, I would like to highlight four areas of clear factual and legal issues relating to patent, breach of contract, trade secrets, and damages.

[00:00:38] Speaker 00:
Hearing no questions, I'll turn first to the issue of patent.

[00:00:42] Speaker 00:
As your honors have seen from the briefing, the 862 patent requires two sets of rollers in every single claim.

[00:00:49] Speaker 00:
Additionally, these rollers must have specific attributes and configurations.

[00:00:54] Speaker 00:
It is not disputed on the record that BESCO removed its second lower set of rollers before the patent issued.

[00:01:01] Speaker 00:
Instead, BESCO redesigned its elevators, which effectively is like a clamp, Your Honors, to use static padding in the lower region.

[00:01:09] Speaker 00:
It is also further shown in the evidence in the record that within a month, the pads were also removed entirely and the elevators were used with nothing in the lower region.

[00:01:19] Speaker 00:
Therefore, Your Honor, we submit that no reasonable jury could find that the pads were the equivalent of the rollers.

[00:01:26] Speaker 03:
Do I remember correctly that there was not a motion for JMAW on this issue?

[00:01:32] Speaker 00:
That is correct, Your Honor.

[00:01:33] Speaker 00:
We are seeking a new trial on the issue of patents.

[00:01:37] Speaker 03:
So you stated the standard for JMAW.

[00:01:39] Speaker 03:
You said no reasonable jury could find.

[00:01:41] Speaker 03:
But that's not the standard, right?

[00:01:43] Speaker 03:
Isn't the standard under the Fifth Circuit whether there's an absolute absence of evidence

[00:01:50] Speaker 00:
Your Honor is absolutely correct, and I do apologize for misstating the standard.

[00:01:54] Speaker 00:
Regardless, Your Honor, I would still submit that there is an absolute lack of evidence supporting a finding under the doctrine of equivalence here.

[00:02:05] Speaker 03:
Can I ask you about that third design where there's removal of the Teflon pads?

[00:02:12] Speaker 03:
I understand that the jury heard evidence that this

[00:02:20] Speaker 03:
redesign doesn't actually exist.

[00:02:23] Speaker 03:
Aren't we supposed to presume that the jury found all factual issues not in your client's favor when there's a jury verdict?

[00:02:34] Speaker 00:
Your Honor, I think what ended up happening there is a shifting of the burden.

[00:02:38] Speaker 00:
I believe that the only evidence of the record that is present regarding this third accused design

[00:02:46] Speaker 00:
demonstrates that the company, the client for whom BESCO is performing the services, requested that the actual rollers be removed and there's a job log noting that the rollers in fact were removed.

[00:03:00] Speaker 00:
I believe the actual burden at trial would have been on the plaintiff Cajun at all to show that BESCO is continuing to use the rollers, excuse me, to use the pads beyond the one month period of time.

[00:03:14] Speaker 00:
And regardless, Your Honor, I would still submit that the pads, whether they are there or not, still do not perform the same function or work in the same manner as the required roller.

[00:03:24] Speaker 04:
But you don't object to the jury instruction on Doctrine or Equivalence, correct?

[00:03:30] Speaker 00:
That is correct, Your Honor.

[00:03:31] Speaker 00:
We did not object to the jury instructions.

[00:03:33] Speaker 04:
So the jury was properly charged.

[00:03:36] Speaker 04:
The jury had all this evidence before it.

[00:03:38] Speaker 04:
And the jury just simply disagreed with you, isn't that right?

[00:03:43] Speaker 00:
Your Honor, I think that's exactly why we're here on appeal, is that all of the evidence certainly shows that a static pad, a static pad that was used simply to prevent metal to metal contact, cannot be found to perform in the same way as a mechanical roller.

[00:04:00] Speaker 04:
But the judge went through and pointed out evidence.

[00:04:04] Speaker 04:
He said, you know, there was evidence on both sides, but that's not the role, that's not the

[00:04:11] Speaker 04:
trial judge's role and it's not our role, it's the jury's role to decide what that conflicting evidence really shows.

[00:04:20] Speaker 00:
Your Honor, you also note in the briefing, however, that there was an objection to the substantial part of the testimony from the plaintiff dealing with the doctrine of equivalent.

[00:04:31] Speaker 00:
Over Besco's objection, the judge qualified Bryce Randall as a lay expert witness

[00:04:39] Speaker 00:
and instructed Mr. Randall to only provide testimony on matters within his personal knowledge.

[00:04:47] Speaker 00:
Nevertheless, and again, over Besco's continued objections, Mr. Randall actually provided testimony as to the ultimate conclusion here, despite the fact that he admitted he had never seen the Besco tool before trial and never saw it in operation.

[00:05:02] Speaker 00:
I think the issue here is that this conclusory testimony

[00:05:07] Speaker 00:
by a lay expert witness who was unqualified to provide it, not a 702 expert, was ultimately prejudicial to Besco's position.

[00:05:18] Speaker 02:
Well let me ask, this is Judge Prost, on that question of prejudicial, I couldn't see, I don't recall in the blue brief, and you were supposed to show that it was prejudicial, right?

[00:05:30] Speaker 02:
That's your burden.

[00:05:32] Speaker 02:
And I don't recall that argument being developed or made in half in the blue brief.

[00:05:40] Speaker 02:
So can you point me to anything I'm missing?

[00:05:46] Speaker 00:
Your Honor, I admit I am having a slight trouble bringing up the blue brief right now.

[00:05:52] Speaker 00:
I do know that we certainly cited it extensively in the gray brief in the reply.

[00:05:59] Speaker 02:
Yeah, but if that's all you have is the gray brief, you can give it to us.

[00:06:05] Speaker 02:
But I'm a little more interested in the blue brief because that's where it probably should have been.

[00:06:16] Speaker 00:
Your Honor, I would also submit that this was the only testimony provided in support of the doctrine of equivalence.

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And Your Honor, if I may, and not to jump on the issue, if I can come back on rebuttal, I would be happy to.

[00:06:36] Speaker 02:
That would be great.

[00:06:37] Speaker 02:
That would be fine.

[00:06:40] Speaker 00:
Your Honor, at that point, I would also like to switch gears to the brief of contract.

[00:06:45] Speaker 00:
Again here, and Your Honor, the gray is page 42 of the brief.

[00:06:54] Speaker 00:
Regarding breach of contract, I think we've also shown that the district court committed an abuse of discretion in finding that appellee properly relied upon the doctrine of alleged apparent authority under Louisiana law.

[00:07:07] Speaker 00:
As we argue in our brief, Louisiana law, as mandated by the Louisiana Supreme Court in Bullos versus Morrison, expressly holds that a third party seeking to benefit from this doctrine of apparent authority may not blindly rely upon the assertions of an agent.

[00:07:22] Speaker 00:
Rather he has a duty to inquire into the nature and extent of the agent's power.

[00:07:27] Speaker 04:
But what about the parent authority?

[00:07:30] Speaker 04:
I mean, didn't the court make specific findings that the jury reasonably could have found a parent authority?

[00:07:38] Speaker 00:
Your Honor, that's exactly the issue here.

[00:07:40] Speaker 00:
The Buyos Court, Louisiana Supreme Court, said that a party has an express duty to inquire as to an agent's authority.

[00:07:50] Speaker 00:
Here, Shane Trish, the principal, testified on Appendix 605, again, I don't know what authority the guy coming to sign the document has.

[00:08:00] Speaker 00:
When pressed further, Trish expressly admitted, we never asked to see who had authority to sign the terms and conditions.

[00:08:08] Speaker 00:
Louisiana court.

[00:08:10] Speaker 02:
Well, I've read to and it seems to me that the duty to inquire isn't a blanket rule.

[00:08:19] Speaker 02:
It depends on the circumstances.

[00:08:20] Speaker 02:
The quote from bulliest is the facts and circumstances should have caused plaintiffs to question the agent's alleged authority in good faith.

[00:08:30] Speaker 02:
And I'm having a hard time here seeing why the jury could not have said why Cajun should have felt the need to inquire about the exact scope of authority of someone who did have the authority to sign for delivery of the equipment.

[00:08:50] Speaker 00:
Sure, Your Honors.

[00:08:52] Speaker 00:
A couple of things.

[00:08:53] Speaker 00:
First and foremost, I was going to talk about this in regards to trade secrets, but I think the actual structure of how the

[00:09:00] Speaker 00:
the terms and conditions came into existence merit discussion here.

[00:09:06] Speaker 00:
First, the initial rental tickets, as you will, that these hot shot drivers, the field hands, were sent to go pick up the rollers did not have any terms and conditions.

[00:09:19] Speaker 00:
For several months, these tickets went back and forth without any terms and conditions.

[00:09:24] Speaker 00:
Then after a few months, a website link was finally introduced to the terms and conditions

[00:09:30] Speaker 00:
but they never inquired as to whether or not these field hands were accessing the computer on site in order to be able to review the terms and conditions.

[00:09:43] Speaker 04:
But the tickets ultimately, counsel, the tickets ultimately did have the terms and conditions on them and there were repeated times in which the equipment was accepted and the rentals were paid.

[00:09:56] Speaker 04:
And at that point, they had the terms and conditions in writing.

[00:10:03] Speaker 00:
Right?

[00:10:03] Speaker 00:
Your Honor, that would have been about a year and a half into this entire process and into the relationship between the parties.

[00:10:11] Speaker 00:
I also note, I believe it's on page 605 of the record, of the appendix, excuse me, Shane Trist testifying, we did not go directly to ESCO or to Jamie or ESCO personally.

[00:10:25] Speaker 00:
and ask them to please read our terms and conditions.

[00:10:28] Speaker 00:
No, we did not.

[00:10:29] Speaker 00:
Under Louisiana law, it's generally only reasonable for the members and member managers of an LLC to bind the company.

[00:10:37] Speaker 00:
Here, the field hands that were sent over to pick up these tools were never part of the members or member managers.

[00:10:45] Speaker 02:
Well, wait a minute.

[00:10:47] Speaker 02:
This is Judge Prost.

[00:10:49] Speaker 02:
You rely on a provision in the delivery ticket stating, quote, no field employee of the company shall be empowered to alter the term.

[00:10:58] Speaker 02:
So I have two questions.

[00:11:00] Speaker 02:
Firstly, does company in this context refer to Cajun or BESCO?

[00:11:05] Speaker 00:
Because I think... Your Honor, under the definition, it is, in fact, referring to Cajun.

[00:11:11] Speaker 00:
However,

[00:11:12] Speaker 00:
to the extent that Cajun is putting others on notice that field hands have no authority, I think it suits their own purposes to know that our field hands would have had no authority as well.

[00:11:24] Speaker 02:
Okay, well that's a potential, but let me ask you the second part of the question.

[00:11:27] Speaker 02:
Regardless of that, how does that show that Best Goes Field employees lacked authority to accept the terms given to them?

[00:11:34] Speaker 02:
It only speaks to their power to alter the term.

[00:11:38] Speaker 02:
suggesting that they don't have the power to alter, but they have the authority to implement the terms as they exist.

[00:11:47] Speaker 00:
Sure, Your Honor.

[00:11:47] Speaker 00:
If I may answer in the time allotted, I think the answer there is simply that because the actual field hands never had actual authority under Louisiana law, the only way that this would have been, in quote, reasonable

[00:12:03] Speaker 00:
is for cajun to have actually asked the extent to uh... that fulfill their duty to inquire uh... as to the uh... the authority at court since booyot have continuously held that it a company or an individual that seeks to rely upon a parent authority but failed in a duty to inquire does so at its own peril

[00:12:28] Speaker 02:
All right.

[00:12:30] Speaker 02:
If there are no further questions from the panel, why don't we hear from Mr. Scott?

[00:12:36] Speaker 00:
Thank you, Your Honors.

[00:12:46] Speaker 01:
Hello, Your Honors.

[00:12:47] Speaker 01:
I'm George Scott for the appellees.

[00:12:49] Speaker 01:
Thank you for your time today.

[00:12:51] Speaker 01:
May it please the court?

[00:12:55] Speaker 01:
Please proceed.

[00:12:56] Speaker 01:
Thank you.

[00:12:58] Speaker 01:
I'd like to start with so first and foremost this is really a trade secret fraud and breach of contract case more than it is a patent infringement case.

[00:13:11] Speaker 01:
Certainly there is a patent infringement claim but the focus of the evidence and the focus of the relationship really steers this towards being a trade secret fraud and breach of contract case.

[00:13:25] Speaker 01:
So I'd like to start with those claims

[00:13:27] Speaker 01:
Unless Your Honors have any specific questions about the briefing or Mr. Ricci's argument.

[00:13:33] Speaker 02:
Yeah, I do have, this is Judge Prost.

[00:13:35] Speaker 02:
I do have a question about Mr. Randall's testimony.

[00:13:39] Speaker 02:
Because we do have a case law that talks about in invisibility of lay opinion testimony on technical questions involving facts.

[00:13:50] Speaker 02:
I know the district court, I think, did a pretty good job or a good job in sort of shepherding this along, recognizing the pitfalls.

[00:14:00] Speaker 02:
But why isn't this a problem?

[00:14:03] Speaker 02:
Particularly, your friend said, I guess he was correct, that this was the only testimony on the DOE question.

[00:14:11] Speaker 01:
Well, first and foremost, I would say that it shouldn't be dispositive here because, as we mentioned in the briefing,

[00:14:21] Speaker 01:
the admission from Besco and the testimony of the other witnesses, including Besco's expert and Besco's principal, Esco Benton, actually established that the filler pads did function in the same, you know, did perform the same function way and result as the lower rollers before even considering Mr. Randall's testimony.

[00:14:48] Speaker 01:
But more than that,

[00:14:51] Speaker 01:
It's that Mr. Randall is, and I know one of the cases that Besco is cited to is the oxygen fog case, I believe is what it is.

[00:15:02] Speaker 01:
Yes, oxygen fog.

[00:15:03] Speaker 01:
It's a very different case than what happened there.

[00:15:07] Speaker 01:
Mr. Randall was disclosed.

[00:15:11] Speaker 01:
In the 2682 expert disclosures, as an expert that was going to testify on technical matters including the doctrine of equivalence, he was disclosed in all the witness disclosure as someone who was going to make those disclosures.

[00:15:25] Speaker 01:
And BESCO simply never objected, not even by the deadline, to challenge expert testimony.

[00:15:32] Speaker 01:
And so when Mr. Randall showed up at trial, that was the first time that we ever received a challenge

[00:15:38] Speaker 01:
from Besco to his testimony.

[00:15:40] Speaker 01:
And what Judge Ash, the district court judge, did was he qualified him as a lay opinion expert witness based on having 20 years of experience in the field and having the personal knowledge.

[00:15:56] Speaker 01:
And he was not qualified as a 702 witness, right?

[00:15:59] Speaker 01:
He was not, I'll just say that yes, he was not qualified as a 720 witness.

[00:16:06] Speaker 01:
That's what we asked for, but he was not.

[00:16:10] Speaker 04:
And so he was not a... And the judge specifically told him not to opine on the ultimate issue, isn't that right?

[00:16:17] Speaker 01:
Correct.

[00:16:17] Speaker 01:
And I would submit that he did not opine on the actual ultimate issue of

[00:16:24] Speaker 01:
you know, the filler paths function in the same way or with the same function or the same result.

[00:16:30] Speaker 01:
And instead, what he opined about was things that were within his personal knowledge, which is how Cajun's tool operates, which he was intimately familiar with, and how the function and the way and the result that the lower rollers performed in Cajun's tool.

[00:16:49] Speaker 01:
And then that was, the jury could combine that with,

[00:16:53] Speaker 01:
Bestgo's own material that it selected and the reason it admitted it selected that material for, including the testimony of its expert, that made it very clear to the jury that the material was selected in order to, because of its friction-reducing properties, so that the filler pad would function in the exact same way as the lower rollers in order to reduce function.

[00:17:19] Speaker 02:
This is Judge Prowse.

[00:17:20] Speaker 02:
I assume also that the jury was presented with certain exhibits.

[00:17:24] Speaker 02:
so they could see what you were talking about here?

[00:17:28] Speaker 01:
Yes, Your Honor.

[00:17:29] Speaker 01:
So there was in front of the jury for most of the trial, these tools are, without the rollers in them, are roughly 75 pounds a piece.

[00:17:39] Speaker 01:
And these inserts were on the table in front of them.

[00:17:42] Speaker 01:
So they saw Cajun's insert sitting next to Besco's insert.

[00:17:47] Speaker 01:
They were allowed to see the rollers from both of the companies and the filler pad was also in front of the jury at certain times of the trial.

[00:18:00] Speaker 01:
And I believe, I'll add, I believe at some point in time in the trial, the jury was allowed to actually touch the tools as well.

[00:18:09] Speaker 01:
Not that it was absolutely necessary, given the visual similarities of the tools, but there were no restrictions on the jury's access to the actual tools in question.

[00:18:21] Speaker 02:
Now, this is Judge Prost again.

[00:18:22] Speaker 02:
Could you respond to your friend's arguments reciting Louisiana law?

[00:18:28] Speaker 02:
on the duty to inquire and the appearance authority, et cetera.

[00:18:31] Speaker 02:
He cited the Louisiana case law.

[00:18:34] Speaker 02:
So can you respond to that?

[00:18:37] Speaker 01:
Yes, Your Honor.

[00:18:37] Speaker 01:
And I can't remember exactly who had noted that the Louisiana law requires the duty to inquire under certain circumstances where a reasonable person would actually have some doubts.

[00:18:55] Speaker 01:
And I think Your Honors have it exactly right.

[00:18:57] Speaker 01:
In this situation, there really wasn't any reason for Cajun to doubt whether or not there was authority.

[00:19:07] Speaker 01:
And let me jump back for just a second and say I don't even think that finding of apparent authority is necessary to an affirmative breach of contract.

[00:19:19] Speaker 01:
Because what we have from Besco is an actual request for admission response, an actual factual admission that Besco admits that it specifically sent its employees to Cajun's shop to sign that agreement.

[00:19:36] Speaker 01:
Like, that's an admission they made in the case.

[00:19:39] Speaker 01:
They just simply have this bizarre, I'm sorry, Your Honor, go ahead.

[00:19:43] Speaker 04:
It wasn't Mr. Lovell also aware of the terms and conditions?

[00:19:50] Speaker 01:
Oh, absolutely, Your Honor.

[00:19:51] Speaker 01:
I mean, I know that both, you know, I know that Esco's position is that Mr. Lovell didn't sign the agreements.

[00:20:01] Speaker 01:
Esco Benton did not assign the agreements.

[00:20:04] Speaker 01:
and that there's no proof that Esko Benton or Mr. Lovell actually read their emails in the three to four times that the agreements were sent directly to them.

[00:20:15] Speaker 01:
There's certainly no dispute that Mr. Benton and Mr. Lovell did, in fact, receive that agreement on three to four separate occasions.

[00:20:29] Speaker 01:
And I think the jury was reasonable in rejecting the concept that they never read.

[00:20:34] Speaker 04:
Well, as I understand it, Council, wasn't there testimony?

[00:20:37] Speaker 04:
I'm looking at JA1053.

[00:20:40] Speaker 04:
Isn't there testimony that

[00:20:43] Speaker 04:
Mr. Lovell was actually alerted to the fact that the terms and conditions were listed when he accepted the tickets.

[00:20:53] Speaker 01:
I believe that's actually in reference to Lee LeBlanc.

[00:20:57] Speaker 01:
And like most of the names in this case, I do butcher the pronunciation a little bit.

[00:21:02] Speaker 01:
But that was, I believe, in reference to Lee LeBlanc, who is a offshore supervisor and effectively, you know, the third in command.

[00:21:11] Speaker 04:
Mentioned Mr. Lovell and the fact that he was the operations manager.

[00:21:18] Speaker 01:
I'm turning to that right now.

[00:21:20] Speaker 04:
1052, 1053.

[00:21:42] Speaker 01:
Um, your honor, I would say that Mr. Lovell was certainly aware.

[00:21:47] Speaker 01:
Um, you know, I think the evidence shows that Mr. Lovell was certainly aware that there was a rental agreement and that there were terms on the back.

[00:21:55] Speaker 04:
Um, and, and as I was saying, I'm just talking about what the testimony was and that the jury had the right to consider.

[00:22:02] Speaker 01:
I'm looking for this specific, uh,

[00:22:08] Speaker 04:
I'm sorry, Your Honor, I am not finding... On page 52 of the appendix, there's testimony that says when Mr. Lovell came in the office, I was there, I grabbed it, I grabbed the ticket and told him, you know, I told him the agreement's on the back.

[00:22:23] Speaker 04:
You need to read it and sign the ticket.

[00:22:26] Speaker 01:
Right?

[00:22:28] Speaker 01:
So, Your Honor, I believe if looking at line

[00:22:34] Speaker 01:
three and four of that particular page of testimony, Appendix 1052, I do think as much as I wish it said what you are suggesting and I hope it does, I do believe that that testimony is in regards to Lee LeBlanc.

[00:22:51] Speaker 03:
Okay.

[00:22:56] Speaker 03:
I just want to ask you a question.

[00:22:57] Speaker 03:
I mean, just to make sure I understand this, the jury was also instructed on ratification, right?

[00:23:03] Speaker 03:
And there was occasion to present evidence to the jury that BESCO ratified the contract, right?

[00:23:09] Speaker 03:
And that could be an independent basis for the jury's finding.

[00:23:14] Speaker 03:
Is that correct?

[00:23:16] Speaker 01:
Yes, Your Honor.

[00:23:17] Speaker 01:
I certainly believe that ratification, apparent authority, and express authorization are all three independent bases

[00:23:24] Speaker 01:
for finding that the jury could have found this contract that was agreed to under, based on Esco's own admission.

[00:23:31] Speaker 01:
You know, the fact that it was completely reasonable for Cajun's employees to believe that Esco Benton himself sent his employees there to sign to pick up the tools.

[00:23:42] Speaker 01:
And then, you know, that it's just,

[00:23:44] Speaker 01:
You know, the jury had every right to reject this concept that Mr. Benton never opened his emails and never found out about this rental agreement until this lawsuit was filed in January of 2017.

[00:23:58] Speaker 01:
And he certainly continued using the tools in early 2016 until he finally, until BESCO finally ceased its relationship with plaintiffs.

[00:24:07] Speaker 01:
And, you know, and the evidence is that

[00:24:11] Speaker 01:
It all happened during the exact time that the trade secret misappropriation was happening.

[00:24:15] Speaker 01:
So we believe it's very, the jury found it was very clear as to exactly why these agreements were signed with a complete disregard as to what was actually in them because frankly, there was never any concern as to what was in them because BESCO really never felt that any of this would become public knowledge or that it would get caught.

[00:24:41] Speaker 01:
If your honors don't have any additional questions on breach of contract, you know, I won't get another chance to go back to trade secret misappropriation.

[00:24:51] Speaker 01:
And I would like to address a few points that are raised in VSCO's gray brief, their reply brief.

[00:24:59] Speaker 01:
You know, during the trial and then again in Besco's opening brief, there was an attempt by Besco to focus on the trade secrets being just simply the fact that there were rollers on the inside of the inserts.

[00:25:13] Speaker 01:
And the reason that they tried to do that, which the jury rejected, is that if the

[00:25:21] Speaker 01:
actual trade secrets that plaintiffs claim, the internal makeup and configuration, or the makeup and configuration of the internal components of the rollers, once that's considered, Besco's arguments tend to fall apart.

[00:25:34] Speaker 01:
And so now in the reply brief at pages 12 to 13, Besco is finally focusing on the trade secrets that plaintiffs actually are claiming, which is the internal... So what is the trade secret?

[00:25:50] Speaker 01:
So the rollers are comprised of internal components.

[00:25:54] Speaker 01:
They're a proprietary configuration of specific types of bearings that have to be placed in there in a particular configuration.

[00:26:03] Speaker 01:
So it's the types of bearings and the way that they're configured in there and

[00:26:08] Speaker 01:
While certainly somebody could build an heiress tool reading just the patent specification and they know, just like anyone knows, that a roller has to have berries inside of it, the reason why Cajun's tool performed so well was the hundreds if not thousands of hours of testing and development that Cajun, in particular Shane and Heath Trish, put into

[00:26:36] Speaker 01:
developing the perfect combination of rollers and bearings based on the various different weights and types and sizes of tubular.

[00:26:46] Speaker 01:
And this, the evidence showed, is specifically what VESCO was disassembling and analyzing in its shop when a third party independent investigator

[00:26:58] Speaker 01:
walk into the shop and notice that something was wrong.

[00:27:02] Speaker 02:
This is separate and distinct then from what the patent has claimed?

[00:27:08] Speaker 01:
Yes, Your Honor.

[00:27:09] Speaker 01:
So the patent claims an elevator roller insert system, but

[00:27:15] Speaker 01:
The plaintiffs have kept as trade secret their proprietary configuration of rollers and bearings that they use inside those rollers.

[00:27:25] Speaker 01:
You can certainly practice the patent without using that proprietary configuration, but

[00:27:33] Speaker 01:
You know, we believe that the evidence showed that not only did BESCO copy the tool itself, but it also used improper means to access that proprietary combination and make up on the inside so that its tool, its knockoff tool would work as well as the tool that it was replacing because that's exactly what its offshore operator client expected to have happen.

[00:28:01] Speaker 01:
Your Honors, if I could have just another minute or two possibly to address the specific arguments against those trade secrets, I'd appreciate it.

[00:28:12] Speaker 01:
But if not, I would rest on the groups.

[00:28:15] Speaker 02:
Well, only if my colleagues have further questions about that.

[00:28:20] Speaker 01:
Thank you, Your Honor.

[00:28:21] Speaker 02:
Hearing none, thank you.

[00:28:23] Speaker 02:
Mr. Ricci?

[00:28:26] Speaker 00:
Hi, Your Honor.

[00:28:27] Speaker 00:
Yes, I would like to also address the trade secret issues as I did not get to them in my case in chief.

[00:28:33] Speaker 00:
One thing that the jury was also shown, and by the way, the reasonableness of secrecy here is a de novo review as there was a judgment of a matter of law.

[00:28:43] Speaker 00:
The jury was presented with weeks and months of emails and correspondence, well predating any kind of rental agreement or ticket

[00:28:53] Speaker 00:
from Cajun to Besco, disclosing specific schematics and drawings of all of the components of the alleged heiress system.

[00:29:03] Speaker 00:
And I'll quote one of them from page 788 of the appendix, and this is Shane Trish sending an email, here's a couple of 3D images of the roller dies.

[00:29:15] Speaker 00:
One of them is transparent so you can see all of the components.

[00:29:19] Speaker 00:
Now, at this point in time, none of these drawings had ever been marked as confidential.

[00:29:25] Speaker 00:
There was no non-disclosure agreement in place.

[00:29:28] Speaker 00:
There was simply a free flow of technology transfer and discussion about these products.

[00:29:36] Speaker 00:
Now, we challenged the sufficiency of the reasonableness on the basis that Cajun, excuse me, Appellee's

[00:29:45] Speaker 00:
had effectively disclosed the technology to numerous third parties and never did anything to evidence that they were actually treating this information as trade secret.

[00:29:55] Speaker 00:
You know, in denying our motion, the court first pointed to the appellees applying for patent protection prior to testing the unit.

[00:30:03] Speaker 03:
Counsel, I have a quick question for you.

[00:30:05] Speaker 03:
This is Judge Stoll.

[00:30:06] Speaker 03:
Quick question.

[00:30:07] Speaker 03:
You had said at the beginning of this, you said that

[00:30:11] Speaker 03:
You know, because you moved for Jamal, it was a legal question here on whether Cajun took reasonable measures to maintain the secrecy of its trade secrets.

[00:30:20] Speaker 03:
Now, just to clarify, that's a fact issue for the jury, right?

[00:30:24] Speaker 03:
And on Jamal, we review it for substantial evidence, right?

[00:30:28] Speaker 00:
That is correct, Your Honor.

[00:30:31] Speaker 00:
And here, I think what the district court and the jury ended up doing is substituting the standard

[00:30:37] Speaker 00:
by equating some measures to reasonable measures.

[00:30:41] Speaker 00:
And here the evidence of record shows that the appellee shared its alleged proprietary information with numerous third parties, Besco, CRO, testing companies.

[00:30:50] Speaker 04:
Counsel, don't we have to assume that the jury followed the jury instructions that they were given with respect to what needed to be shown?

[00:31:00] Speaker 00:
You can assume that to some extent, Your Honor, but I believe the jury would have abused its discretion in ignoring the numerous times

[00:31:07] Speaker 00:
that this technology was disclosed without any kind of confidentiality.

[00:31:12] Speaker 00:
If I may continue, Your Honor, I appreciate the opportunity to finish the answer.

[00:31:20] Speaker 02:
Yes, just make it quick, please.

[00:31:24] Speaker 00:
Absolutely.

[00:31:26] Speaker 00:
I think, Your Honor, what we have here is a patent that teaches persons having ordinary skill in the art how to make and use the error system.

[00:31:35] Speaker 00:
We have a complete disclosure of detailed schematics before any kind of rental term agreement ever came into place and before there was any kind of restriction.

[00:31:44] Speaker 00:
We have rental agreements that have no confidentiality obligations and in fact, BESCO was encouraged to show the heiress to companies like Anandarco and the contractors on board.

[00:31:56] Speaker 00:
We have a complete lack of confidentiality throughout

[00:32:01] Speaker 00:
And this was even before the first rental ticket came into place.

[00:32:06] Speaker 00:
While the jury was provided with all of this evidence, it seems as though they got carried away and ended up ignoring the unrefutable evidence.

[00:32:14] Speaker 02:
Thank you.

[00:32:15] Speaker 02:
We thank both sides and the case is submitted.