[00:00:00] Speaker 03:
2146, Massimo Corporation versus True Wearables.

[00:00:05] Speaker 03:
Ms.

[00:00:05] Speaker 03:
Scobie, please proceed.

[00:00:08] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:11] Speaker 04:
In deciding the injunction motion that is the subject of this present appeal, the District Court adopted a belief that it could not consider evidence of the alleged trade secrets publication in what it held to be a non-obscure and what it acknowledged was a widely cited

[00:00:29] Speaker 04:
IEEE article in connection with the court's determination of whether the alleged trade secret is generally known under the California Uniform Trade Secret Act.

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As a matter of law, this understanding that the district court applied is wrong, and the application of this incorrect legal conclusion undermined and infected the district court's analysis of likelihood of success on the merits.

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We believe that for this reason alone, the district court's preliminary injunction

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on at issue on this appeal must be reversed.

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In responding.

[00:01:03] Speaker 05:
This is Judge Bryson.

[00:01:05] Speaker 05:
I think I understood you to say that the district judge concluded that he could not consider the publication if I'm

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quoting you correctly.

[00:01:18] Speaker 05:
I thought that as I read the opinion, the judge considered the prior publication, but determined that that was not enough to render it generally known.

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Isn't that a more accurate characterization of what the district judge did?

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Respectfully, Your Honor, I disagree.

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And I can point you directly to the portion of the opinion that I think disputes that.

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In the original order on the preliminary injunction motion, the judge referenced two articles.

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Only one of them is relating.

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So what page in the record would I find what you're referring to?

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Your Honor, you can refer to APPX 12.

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And the district court said, referring to two articles that had been discussed in the Declaration of Defendants Expert, quote,

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While both of these articles are published as conference papers, meaning that they are not obscure, this does not mean that the particular techniques described in them were generally known to people who could obtain economic value from developing non-invasive blood content detectors.

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But he then says, quote, at best, the articles could be a basis for determining that the TSS was readily ascertainable.

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And if you look at the district judge's decision on the motion for reconsideration, he makes it even more plain that he is applying a legal understanding that does not allow him to analyze what is disclosed in the articles as part of the determination on generally known.

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And this, your honor, is at APPX 42 to 43, where the judge says, quote, defendants do not account for the cut says legislative comment that information is readily ascertainable.

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if it is available in trade journals, reference books, or published materials.

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He then goes on to say, quote, since the California legislature intended for information contained in publications like those produced by IEEE to be readily ascertainable, the sentence argument fails.

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And if you look at the judge's decisions in both, the original decision and on reconsideration,

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The absence of any discussion of those articles or, frankly, of Dr. Goldstein's extensive discussion of the article in his declaration demonstrates that the district court in this case took the legislative comment to the CUTSA, which references the relevance of publications to the readily ascertainable defense, and determined that publication-related evidence therefore belongs

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exclusively in that category and cannot be considered.

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Are you suggesting that you read the district court's opinion as indicating that if the trade secret had been published in the San Francisco Chronicle, that it would still not be deemed generally known?

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That is my reading of the opinion, Your Honor, and I think it's a fair reading given the treatment of the publication-related evidence

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by the district court.

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There was significant information provided by defendants to discussing the relevance of the articles to the generally known category here.

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The district court did not analyze or discuss any of that evidence.

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In fact, the district court stated at APPX 12

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Defendants fail to argue the TSS was generally known by people who could obtain economic value from its use.

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And that's just plainly contrary to the arguments that were made by defendants.

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At defendant's brief on the initial opposition to the preliminary injunction motion at APPX 3086, the defendants argued that the TSS was generally known

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to those who can obtain economic value from its use.

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And in response to the court's provisional order when defendants requested oral argument on the preliminary injunction motion, that argument was repeated again starting at APPX 5128.

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Dr. Goldstein in his declaration also went into detail about the generally known state of the trade secret.

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He talked about its publication not only in the article that we've discussed

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in our briefing, but also in other articles and in textbooks and how not only was he, as a person of skill in the art, aware of these articles, frankly, even at the time that this alleged trade secret came into existence at Massimo, but he was able to identify articles that he was able to identify today to corroborate his testimony

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that these were generally known.

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He was able to identify articles that reflected the trade secrets exactly.

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And in Dr. Goldstein's declaration, he explains that the searching that he did to identify articles was not because he didn't know about this trade secret.

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It was because he was looking to find the most equivalent formula in an article where the notations were the most similar.

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And he was able to do that extremely quickly because

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these formulas are generally known.

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This is Judge Moore.

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Dr. Goldstein's testimony on 3101 about how it was in fact generally known seems extremely conclusory to me.

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It just seems to suggest it was generally known because it is in a publication.

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Is there more?

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Did he give something more precise that I'm overlooking?

[00:07:25] Speaker 04:
There is more, Your Honor.

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If you go to APPX 3103, starting at probably paragraph 15,

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He talks specifically about the two trade secret formulas that are alleged trade secret formulas that were identified by plaintiff expert Dr. McNames.

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He explains that these formulas, that they are widely known and the statistic, well, and this is a little difficult to discuss in detail given the protective order and the sealed nature of this material.

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But he goes into detail in paragraph 16 about another name.

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for what the alleged trade secret is and the different variants of that other formula that have been in existence since the 1960s, that it appears widely in textbooks and papers with thousands of citations each.

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He goes on to discuss additional information related to that and explains at,

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Just so I understand about Dr. Goldstein's testimony, and I will be very respectful of, you know, the fact that it's under seal, but in paragraph, so I'm going to speak only in generalities.

[00:08:41] Speaker 03:
In paragraph 16, when he testifies, is he testifying about the actual trade secret and its use in other fields?

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Is that what he's testifying to?

[00:08:59] Speaker 04:
He's talking about the trade secret, the two alleged, the two formulas that were alleged to be trade secrets.

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He's talking about them together and explaining that they are all part of a mathematical concept that is well understood and has long been understood in the mathematics industry.

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And the issue here is in terms of defining what is the particular field

[00:09:29] Speaker 04:
that we're talking about.

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And I think if you look at plaintiff's opening brief on the preliminary injunction motion, what they say that their trade secret relates to is, quote, advanced signal processing techniques.

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And the district court said the same.

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It said this is advanced signal processing technique.

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And any suggestion that the discussion by Dr. Goldstein is somehow different, I think, is belied by the fact that

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The article we're talking about here is from an IEEE signal processing conference.

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All of these papers relate to signal processing.

[00:10:06] Speaker 04:
Now, as the plaintiff suggests in their opening brief on their preliminary injunction motion, they used this particular signal processing technique in connection with developing devices, algorithms for devices that measure SPHB or blood hemoglobin.

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However,

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That's not what true wearables is alleged to be using it for.

[00:10:29] Speaker 04:
The 158 patent application, which is the only portion of the injunction that is at issue on this appeal, is alleged to disclose the formula, the mathematical formula.

[00:10:42] Speaker 04:
But it's not using it for SPHB measurements.

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It's using it for different kinds of measurements, like SPO2, which is oxygen saturation, or pulse rate, or other types of measurements

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And as Dr. Goldstein explained, there is relevance to all of these formulas to this field of signal processing.

[00:11:02] Speaker 04:
That is the field of the blood.

[00:11:03] Speaker 05:
But it's still, in both cases, we're dealing with measuring indirectly some condition of the blood, correct?

[00:11:12] Speaker 04:
Correct.

[00:11:13] Speaker 04:
But that is also the thing.

[00:11:15] Speaker 05:
There seems to be a fairly narrow definition of a field.

[00:11:21] Speaker 05:
as opposed to any use that could be made in any setting of the kind of information that's involved with the trade secret?

[00:11:31] Speaker 04:
Your Honor, it can be used in any setting, though, and that's what the article that we have discussed on appeal discussed.

[00:11:37] Speaker 04:
That's also what the 158 patent application itself explains.

[00:11:40] Speaker 04:
It provides an example of using it for

[00:11:43] Speaker 04:
for pulse rate or for blood oxygen, but it also gives a number of other fields.

[00:11:49] Speaker 04:
It's also relevant to medical imaging fields.

[00:11:53] Speaker 04:
As we noted in our brief, Dr. Goldstein was employed by Phillips from 2010 to 2012, which is during the time period shortly after the publication of this article, and at the time when the mathematical formula was developed

[00:12:11] Speaker 04:
by Dr. Lomigo at Massimo.

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And Dr. Goldstein is someone who was in a position to know that these formulas were generally known and understood by people in that industry and that he was such a person.

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And I just want to briefly refer the court to additionally for Dr. Goldstein's testimony to APPX 3107 to 3108, the heading

[00:12:37] Speaker 04:
of section five, just preceding paragraph 26 on that page, is important, as well as the discussion in all of those paragraphs, which make it clear that the familiarity with this by Dr. Goldstein, who himself is someone who could have made economic value from the use of this formula, that these are things that were known and familiar to him for many years.

[00:13:01] Speaker 04:
And it took him only a couple of hours to identify papers that had

[00:13:06] Speaker 04:
significant notational similarity.

[00:13:09] Speaker 04:
But, of course, all of this discussion and all of the analysis of the facts of the relevance of those articles is missing from the district court's opinion.

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And the reason that all of that is missing is because the district court didn't believe that those articles could be part of the analysis of generally known and that they were exclusively relevant to the issue

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of readily ascertainable and therefore did not dig into this analysis that is happening in the conversation that we're having today.

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And if there's no further questions, I would reserve the rest of my time for rebuttal.

[00:13:43] Speaker 03:
Thank you, Ms.

[00:13:44] Speaker 03:
Scobie.

[00:13:44] Speaker 03:
Mr. Ray, please proceed.

[00:13:47] Speaker 00:
Thank you, Chief Judge Moore.

[00:13:48] Speaker 00:
Good morning.

[00:13:50] Speaker 00:
Judge Bryson is absolutely correct.

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The district court's analysis was premised on its statement that the defendants failed to argue

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that the trade secret was generally known by people who could obtain economic value from its use.

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Rather, the court said, rather, defendants argued that the trade secret was publicly available in two publications.

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The court later explains that, or earlier, in the paragraph earlier, that the defendants made their argument without reference to the law.

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What the defendants did below is they argued this like a patent case.

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They basically said, oh, we can find the mathematical technique in an article.

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Therefore, it's in the public domain.

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Therefore, it's not protectable.

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That was the argument they made below.

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That is not the correct argument, and the district court correctly recognized so.

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So when the district court said, at best,

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That was because they did not make an argument that the article shows that it was generally known to people who could obtain economic value from developing non-invasive blood content detectors.

[00:15:10] Speaker 00:
And that's basically the field.

[00:15:12] Speaker 00:
And yes, Judge Bryson, that would include detecting all sorts of blood constituents, whether it's hemoglobin or oxygen, or it does not matter.

[00:15:21] Speaker 00:
And that's the way the district court defined the field.

[00:15:23] Speaker 00:
And that is clearly not erroneous or not clearly erroneous, I should say.

[00:15:29] Speaker 00:
Wait, wait, wait.

[00:15:30] Speaker 01:
This is Judge Teich.

[00:15:31] Speaker 01:
But that seems to be an awfully narrow view of what's publicly known.

[00:15:35] Speaker 01:
If something is broadly known as a technique for doing something, the fact that in a particular subset, it hasn't been used before

[00:15:51] Speaker 01:
or wasn't known to be used in that particular area would seem not to be too cramped a view of the public.

[00:15:58] Speaker 01:
No.

[00:15:59] Speaker 01:
If it's a general principle that's known in the field, why isn't that sufficient?

[00:16:06] Speaker 00:
Because it was not generally known in the field.

[00:16:09] Speaker 00:
And in fact, the testimony from Dr. Goldstein was that, in his view, it was known by those in the statistics community, is what he rephrased it as.

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or as those who would ordinarily use IRLS.

[00:16:25] Speaker 00:
But that is not the test.

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What the district court is trying to determine is whether or not Massimo is likely to succeed a trial in showing that the trade secret has independent economic value.

[00:16:39] Speaker 00:
And that's a finding of fact that requires the court to look at all the evidence

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all the evidence, and there was much evidence showing that it does have independent economic value.

[00:16:52] Speaker 00:
And in particular, one of the factors that the Altavian court looked at, the Altavian case is cited twice in my brief, is when the defendant himself tries to patent the trade secret.

[00:17:06] Speaker 00:
And that's what we have here, where what the injunction is going for is trying to prevent a patent application from publishing and issuing.

[00:17:14] Speaker 00:
And so we have the defendant trying to claim it for himself.

[00:17:18] Speaker 00:
And at the same time, telling this court that this court has to find that it's publicly known, which is obviously inconsistent.

[00:17:27] Speaker 00:
The district court made several findings.

[00:17:30] Speaker 01:
But this isn't a situation in which the patent application is limited to the trade secret.

[00:17:35] Speaker 01:
It's much more complicated than that, right?

[00:17:38] Speaker 01:
It's not just a patent on the trade secret.

[00:17:42] Speaker 00:
It's use of the trade secret in these kinds of devices

[00:17:47] Speaker 00:
So as you look at the McName's declaration, he goes through the patent application, and I don't even believe this is even subject of the argument.

[00:17:56] Speaker 00:
There was no such argument below on many of these matters, including the one we're now having.

[00:18:00] Speaker 00:
Ms.

[00:18:01] Speaker 00:
Scobie is making arguments that really were not made below.

[00:18:04] Speaker 00:
They did not recognize the need to even

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deal with all the facts that go to the issue of whether or not a trade secret has independent economic value.

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And those findings by the district court are not even debated here.

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They're not even disputed.

[00:18:22] Speaker 00:
In fact, they have no declaration.

[00:18:25] Speaker 03:
Mr. Wright, this is Judge Moore.

[00:18:27] Speaker 03:
I have a question.

[00:18:28] Speaker 03:
Under California law, it says it has to be known

[00:18:34] Speaker 03:
or generally known or readily obtainable to people who could obtain economic value from its use.

[00:18:43] Speaker 03:
Is California law further limited to people who could obtain economic value from its use in a particular field?

[00:18:51] Speaker 03:
Is it the case under California law that it has to be known to people in this blood hemoglobin testing field?

[00:18:57] Speaker 03:
Or what if it was known to people in the medical field generally, but not specifically to the blood hemoglobin detection field?

[00:19:07] Speaker 03:
What California law says it has to be generally known to people in a narrow field?

[00:19:14] Speaker 00:
Well, first of all, readily ascertainable is not in the California statute.

[00:19:21] Speaker 00:
Okay, that's first.

[00:19:23] Speaker 00:
What's in the statute is whether or not it has independent economic value actual or potential from not being generally known to either the public, and nobody's arguing the public knew about this,

[00:19:36] Speaker 00:
or to other persons who can obtain economic value from its disclosure.

[00:19:42] Speaker 03:
Yes, but that's not, but Council, that's, okay, first off, that's the statute.

[00:19:46] Speaker 03:
Yes.

[00:19:47] Speaker 03:
It's a readily attainable language.

[00:19:49] Speaker 03:
And third, it would be, again, the statute focuses on people who can achieve economic value.

[00:19:58] Speaker 03:
It doesn't have to be limited to people in a particular technological field.

[00:20:04] Speaker 00:
Well, the case law, and particularly a case cited by the plaintiffs, the people who tain economic value, it's normally competitors, people taking the value away from the plaintiff.

[00:20:18] Speaker 00:
So by competitors being the focus,

[00:20:21] Speaker 00:
it is by almost assumed or defined that the field are those who take value away from the plaintiff.

[00:20:29] Speaker 03:
So if, for example, the trade secret was being used in a complete... Okay, counsel, what case do you have under California law that suggests it has to be generally known to people in the same field as opposed to generally known to people who can obtain economic value from it?

[00:20:50] Speaker 00:
I remember in the case, one case that I knew the plaintiff had cited, it specifically referred to competitors.

[00:21:06] Speaker 00:
And I can't, yes, the Sagenta case, they even cite on page 34, it says right after their citation to the legislative comments, they even cite, see also Sagenta.

[00:21:19] Speaker 00:
explaining that CUSA test is whether the information is generally known, quote, by business competitors or others to whom the information would have some economic value.

[00:21:32] Speaker 02:
Business competitors or others?

[00:21:34] Speaker 02:
I mean, you seem to be ignoring the or others part.

[00:21:38] Speaker 00:
Yes, but Your Honor.

[00:21:40] Speaker 02:
Yes, you're ignoring it?

[00:21:42] Speaker 00:
No, I'm not ignoring it.

[00:21:43] Speaker 00:
But there's no

[00:21:45] Speaker 00:
The court had many pieces of evidence to suggest it was not known, particularly by the defendant himself.

[00:21:53] Speaker 00:
The defendant didn't even contend it was known.

[00:21:56] Speaker 00:
The defendant in 2010, in 2013, in 2017, and in 2020,

[00:22:03] Speaker 00:
Always maintained that it was a trade secret those findings of fact are not even disputed The defendant himself didn't even submit a declaration and the defendant himself Called it a trade secret and even wrote repeatedly in each of these time periods that it is not available in the literature

[00:22:24] Speaker 03:
So is it your view Mr. Ray that I should stop him then from this argument to the contrary or rather that all of that evidence is the evidence upon which the court based its conclusion and therefore I can't conclude it's clearly erroneous.

[00:22:39] Speaker 03:
What would you like me to use that evidence for?

[00:22:42] Speaker 00:
The evidence shows that the district court was free to find

[00:22:47] Speaker 00:
for the plaintiff that the plaintiff is likely to succeed at trial in showing that this trade secret is not generally known.

[00:22:55] Speaker 00:
It's not clearly erroneous.

[00:22:57] Speaker 00:
There's many findings on pages 11 and 12, for example, where the court found that the plaintiff is the only one to have this type of product, that this product dependent on the trade secret

[00:23:09] Speaker 00:
that the defendants, the court wrote on page 14, that the defendants do not even deny that the trade secret does have economic value to the plaintiffs today.

[00:23:19] Speaker 00:
And that's on appendix page 14.

[00:23:21] Speaker 03:
I'm confused, though.

[00:23:22] Speaker 03:
How is any of that relevant to whether or not the two formulas in combination were generally known?

[00:23:27] Speaker 03:
How is the fact that the plaintiff has the only detection technology out there or is the only supplier, how is that?

[00:23:36] Speaker 03:
I don't understand.

[00:23:37] Speaker 03:
I don't understand how that evidence

[00:23:39] Speaker 03:
is relevant to whether or not two formulas are generally known by people who can obtain economic value from it if the economic value is not limited to people in the same field.

[00:23:51] Speaker 00:
Your Honor, this was among many findings of fact.

[00:23:54] Speaker 00:
All the facts and circumstances have to be taken into account by the district court in making this determination.

[00:24:00] Speaker 00:
And we did not even have an argument by the defendant that it was known

[00:24:05] Speaker 00:
to those in the field.

[00:24:06] Speaker 00:
They simply said they didn't even make an argument about the field at all.

[00:24:10] Speaker 00:
And in fact, this panel, I believe, was being misled by Ms.

[00:24:15] Speaker 00:
Scobie's statement that they made the argument below by pointing to the notice of oral argument.

[00:24:20] Speaker 00:
What was left out in that explanation of the facts and what is not mentioned in the reply brief is that three or four days earlier, the court already issued its tentative order

[00:24:32] Speaker 00:
explaining that they failed to argue it, and that is exactly what's in the final order.

[00:24:37] Speaker 00:
So on April 23rd, 2021, and I regret this is not in the joint appendix, and I'd be more than happy to submit it, the district court already wrote its opinion, issued it to the parties, told the defendant they failed to argue it, that it was known to those

[00:24:54] Speaker 00:
in the field, and only then did they argue for the very first time that it might have been known to people that could take economic advantage of it in the field.

[00:25:06] Speaker 00:
And so that really is not making the argument when the court issued its tentative order three, four days earlier before the defendants write their notice of oral argument where they give the argument for the very first time.

[00:25:21] Speaker 00:
But they have no declarations refuting any of the declarations that we submitted from Mr. Kiani, from Mr. Chen, Mr. McNames, and Mr. Chen, he explained that it wasn't known, and he cites LaMago's own statements

[00:25:37] Speaker 00:
Lamego's own workshop, Lamego's own efforts to keep it a trade secret by preventing those at the plaintiffs from writing a doctoral dissertation containing some aspects of the trade secret.

[00:25:53] Speaker 00:
So all of this evidence has to be taken into account and certainly the district court's finding is not clearly erroneous and the district court did consider the article and Judge Bryson is correct in his reading of the opinion that the defendant failed to argue

[00:26:13] Speaker 00:
that it was known by those who could take economic advantage of it in any way that it would any way impede the plaintiff's value.

[00:26:23] Speaker 00:
And that's really the perspective that should be used.

[00:26:25] Speaker 00:
That is how the plaintiff was hurt in any way.

[00:26:31] Speaker 00:
But it all goes into the facts and circumstances.

[00:26:33] Speaker 00:
It's all a finding of fact.

[00:26:35] Speaker 00:
It's all reviewed for clear error.

[00:26:38] Speaker 01:
Where's the finding of fact that this was not generally known?

[00:26:43] Speaker 01:
in the statistical feed.

[00:26:48] Speaker 01:
All I see is the finding, perhaps, that it wasn't known in blood analysis.

[00:26:57] Speaker 00:
Correct.

[00:26:57] Speaker 00:
What I said earlier, Judge Dyke, is that the Goldstein Declaration only said that, in his view, that it was widely used in the statistics community.

[00:27:12] Speaker 00:
The district court didn't disagree with that, right?

[00:27:16] Speaker 00:
Well, they never even made the argument to the district court about the community.

[00:27:22] Speaker 01:
We don't have a finding by the district court that it wasn't widely known in the statistics community, right?

[00:27:30] Speaker 00:
He did not make such a finding because no such argument was ever presented to him.

[00:27:38] Speaker 00:
and you will not see any argument by the defendant that it was known in any sort of community.

[00:27:46] Speaker 00:
They didn't make that type of argument.

[00:27:50] Speaker 00:
They made the argument like this was a patent case and that if it's in, and by the way, they didn't argue the trade secret as actually in the article.

[00:28:01] Speaker 00:
They argued that there was a mathematical formula that they believed was faster.

[00:28:05] Speaker 00:
So I'm not even conceding that the trade secret is disclosed.

[00:28:10] Speaker 00:
We never even got to that level of argument.

[00:28:13] Speaker 00:
The main point is that they never even argued to whom it would be known to the district court.

[00:28:20] Speaker 00:
They did not make any argument with reference to the law.

[00:28:24] Speaker 00:
That was the finding of the district court on page 12.

[00:28:26] Speaker 00:
And that's how this discussion begins.

[00:28:29] Speaker 00:
Because they thought if it was in a publication, it's like patent law.

[00:28:34] Speaker 00:
But that's not true.

[00:28:36] Speaker 00:
All the facts and circumstances must be looked at.

[00:28:38] Speaker 00:
And you can, in California particularly, you can have trade secrets on something that could have been published somewhere if it's not generally known.

[00:28:50] Speaker 00:
And generally known makes this much different than a statute like 102B where you would just find a single article that's in the prior art and you're done.

[00:28:58] Speaker 00:
That's not true in trade secret law.

[00:29:00] Speaker 00:
I see my time is up.

[00:29:02] Speaker 00:
If there are no further questions, I have nothing further.

[00:29:07] Speaker 03:
Okay.

[00:29:08] Speaker 03:
Ms.

[00:29:09] Speaker 03:
Scobie, you have some rebuttal time.

[00:29:10] Speaker 03:
Please proceed.

[00:29:11] Speaker 04:
Thank you, Your Honor.

[00:29:13] Speaker 04:
I want to start by putting this dispute, framing it the way that it began.

[00:29:17] Speaker 04:
Plaintiffs moved for a preliminary injunction on the two trade secret claims that they had asserted in this case.

[00:29:24] Speaker 04:
One was under the Defend Trade Secrets Act, which does include expressly in the statutory language the reference to readily ascertainable.

[00:29:31] Speaker 04:
The other was under the CUTSA, which some California state court decisions say includes readily ascertainable and others say does not.

[00:29:40] Speaker 04:
The support that was given by plaintiffs for why this was not generally known or readily ascertainable was a statement in the declaration of Mr. Chen, who said that he was unaware of it having been published.

[00:29:53] Speaker 04:
That was the posture of the motion when the response was filed by the defendant.

[00:29:58] Speaker 04:
The repeated statement that defendants did not argue that the alleged trade secrets were generally known is false.

[00:30:06] Speaker 04:
APPX 3086 is the original response brief filed by defendants eight days after, because this was an extremely expedited proceeding in California, eight days after the preliminary injunction motion.

[00:30:21] Speaker 04:
And heading number one on that page states, the TSS, and I can't say the rest of it,

[00:30:27] Speaker 04:
are generally known and readily ascertainable.

[00:30:30] Speaker 04:
If you go below, you can see the additional argument in the paragraph below that neither are trade secrets because both were generally known and available in the literature and were readily ascertainable through proper means by those who can obtain economic value from the information.

[00:30:46] Speaker 04:
The repeated statements that that was not argued are untrue.

[00:30:50] Speaker 04:
Your Honor, could I just briefly make one more point?

[00:30:53] Speaker 04:
I know my time is up.

[00:30:54] Speaker 03:
Go ahead.

[00:30:54] Speaker 04:
Thank you.

[00:30:55] Speaker 04:
There was a question about whether it had to be in this particular field, and I'm glad that counsel referenced the Syngenta case, because the Syngenta case specifically said that it does not.

[00:31:06] Speaker 04:
And if you look at the posture of that case, it was information had been disclosed to a purchaser.

[00:31:15] Speaker 04:
You had to disclose price adjustments to purchasers.

[00:31:18] Speaker 04:
And then that was something that was required by regulations.

[00:31:21] Speaker 04:
And the argument that was being made in that case is that the purchasers weren't competitors, and therefore they weren't someone who could obtain economic value from the use.

[00:31:30] Speaker 04:
And the court in the Syngenta case said that's not the requirement, that's not the law, and found against that argument specifically.

[00:31:37] Speaker 04:
Thank you, Your Honor.

[00:31:39] Speaker 04:
If there are no further questions, I have nothing further.

[00:31:41] Speaker 03:
I thank both counsels.

[00:31:43] Speaker 05:
Could I ask just one quick question?

[00:31:47] Speaker 05:
Ms.

[00:31:48] Speaker 05:
Scobie, you referred to the

[00:31:50] Speaker 05:
question of whether the California law requires that readily ascertainable is or is not part of the definition of a trade secret.

[00:32:03] Speaker 05:
Now, as I read the IMAX Corporation case, and I particularly footnote Ken, it seems to adopt the position taken by the ABBA

[00:32:15] Speaker 05:
intermediate appellate court decision.

[00:32:19] Speaker 05:
Aren't we effectively bound by the Ninth Circuit's construction of California law in that regard?

[00:32:26] Speaker 04:
Thank you, Your Honor.

[00:32:27] Speaker 04:
That footnote in IMAX is clearly dicta the court had already decided to reverse the decision prior to reaching that issue.

[00:32:37] Speaker 05:
But you would agree that that footnote is contrary to your position, right?

[00:32:41] Speaker 04:
It is, Your Honor.

[00:32:42] Speaker 04:
I would refer you, though, to the California State Appellate Court cases of Altavion, which incorporates a readily ascertainable American paper, which incorporates readily ascertainable Syngenta v. Heliker, the retirement group versus Galante, and then also a Southern District of California decision, Massimo v. Sotera, which also talks about the not readily ascertainable.

[00:33:03] Speaker 04:
So the issue, as we said in our brief, the issue is disputed as among the various appellate courts of the state of California.

[00:33:10] Speaker 04:
it has not been directly taken on by the supreme court of the state of california however the judicial conference of california which of course includes supreme court members on it specifically does say that readily ascertainable is a affirmative defense to uh... a trade secret misappropriation uh... claim regardless of whether or not the defendant uh... got the alleged misappropriation or misappropriated used from

[00:33:40] Speaker 04:
that readily ascertainable source.

[00:33:43] Speaker 04:
So this is a subject of current dispute.

[00:33:46] Speaker 04:
The reason we did not primarily focus on this issue in our briefing is because we believe that the decision of the district court is so clearly flawed in its legal understanding of the relevance of the publications and the testimony related there to as to the generally known standards that we don't even need to reach the readily ascertainable issue.

[00:34:05] Speaker 01:
Just to be clear, the Ninth Circuit decision is not contrary to your position on publicly available.

[00:34:12] Speaker 04:
It is not.

[00:34:13] Speaker 04:
No, it doesn't speak to that issue at all.

[00:34:17] Speaker 03:
Okay.

[00:34:18] Speaker 03:
Hearing no further questions, I thank both counsels.

[00:34:20] Speaker 03:
This case is taken under submission.