[00:00:00] Speaker 02:
that this morning is 23-1229, well-celled global versus Alibi.

[00:00:08] Speaker 00:
Good morning.

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

[00:00:10] Speaker 00:
My name is Jamil Alibi.

[00:00:11] Speaker 00:
I represent the appellants.

[00:00:14] Speaker 00:
The court's injunction below falls into three problematic categories, which require traversal.

[00:00:19] Speaker 02:
Is there any stuff that remains controversial?

[00:00:21] Speaker 02:
We couldn't find the motion for the PI in this case wasn't included in the appendix.

[00:00:27] Speaker 02:
And it's included in the district court docket under seal.

[00:00:31] Speaker 02:
Is there any reason it's under seal anymore?

[00:00:36] Speaker 00:
Not that I'm aware of, but I do know that parts of the record that were designated as confidential were designated by the appellees.

[00:00:46] Speaker 02:
Thank you.

[00:00:46] Speaker 00:
With respect to those three issues, the first is the likelihood of success on the marriage.

[00:00:50] Speaker 00:
With respect to the patent claim, there's no assertion of a particular claim.

[00:00:54] Speaker 00:
There's no discussion of a particular claim.

[00:00:56] Speaker 00:
There's no claim construction.

[00:00:58] Speaker 00:
And with respect to the trade secret, although there's discussion.

[00:01:00] Speaker 02:
Let me talk about that.

[00:01:02] Speaker 02:
The district court relied on, I read her having made an assumption that the license that presented into it

[00:01:11] Speaker 02:
kind of was the be-all and end-all answer to the fact that there was infringement on these specific claims.

[00:01:17] Speaker 02:
And then she thought she therefore thought she didn't have to go any further.

[00:01:20] Speaker 02:
In her analysis, the burden was shifted to you.

[00:01:25] Speaker 02:
You have to show how what you're doing now is different from what you were doing in the license.

[00:01:28] Speaker 02:
So I'm asking you, historically, in this case, at any point, is there a document or anything on this record that would indicate that you had stipulated or that you agreed

[00:01:41] Speaker 02:
that during the license period, you were practicing all the steps of the path.

[00:01:47] Speaker 00:
No.

[00:01:48] Speaker 00:
And if you look at the agreement that is the license, in paragraph two of it,

[00:01:53] Speaker 00:
It goes well beyond the patents.

[00:01:55] Speaker 00:
It just uses the phrase intellectual property, and it uses what I would consider confidential information, neither of which would rise to the level of either a patent or a trade secret.

[00:02:05] Speaker 00:
And thus, in this particular case, the district court does say, let's look at patent infringement for two pages, and let's look at trade secret for three pages.

[00:02:14] Speaker 00:
and also makes clear that this is not an injunction based upon trademark infringement or a breach of the license agreement.

[00:02:21] Speaker 00:
And it does read like that, Your Honor.

[00:02:22] Speaker 00:
Judge Post, you're right that it looks like the judge is saying, well, if you're doing anything that you did before, then I think there's a problem that needs to be enjoined.

[00:02:30] Speaker 00:
But the issue is that the plaintiff sought an injunction based upon patent infringement and trade circumvention appropriation only, and thus had the burden to prove that those two things were happening.

[00:02:41] Speaker 00:
and didn't do so.

[00:02:43] Speaker 04:
One of your concerns is with respect to claim construction.

[00:02:45] Speaker 04:
Did the parties actually propose any terms for construction and provide any proposed construction?

[00:02:51] Speaker 00:
It never got to that point because during the evidentiary part of the hearing the plaintiff never mentioned a particular claim or an accused device and try to map it together or try to say let's show how the 10 limitations of claim one are met, for example.

[00:03:07] Speaker 00:
And so we never got to that issue.

[00:03:10] Speaker 00:
But if you want a specific example, I would say that at one point the court mentions this phrase about data storage and says that might mean a data room.

[00:03:22] Speaker 00:
That's the opinion of Defendix 17.

[00:03:24] Speaker 00:
Well, that's a defined term.

[00:03:26] Speaker 00:
Data storage means computer readable medium in the specification of the patent at 2042.

[00:03:32] Speaker 00:
And so just by not looking into the particular claims with enough specificity, the district court was led into error because it never had a chance to look at a claim versus a product or a service and match those things together.

[00:03:48] Speaker 00:
And this court's opinion last year in ABC Corp makes it clear that that's required in order to enter an injunction.

[00:03:53] Speaker 05:
So are you saying that when your client was working and running these businesses while under the license, it wasn't practicing the patented invention?

[00:04:06] Speaker 00:
There's no evidence that they were practicing the patented invention.

[00:04:08] Speaker 00:
I think that there was evidence that they were given information about how to do some of the things that this company believes that it does.

[00:04:17] Speaker 05:
The license entitled them to practice the patented invention.

[00:04:21] Speaker 00:
It certainly would have entitled them to do so.

[00:04:23] Speaker 00:
These patent claims are long and have a lot of steps to them.

[00:04:29] Speaker 00:
And whether they're being done or not is not anywhere in this record.

[00:04:33] Speaker 02:
What about the irreparable harm problem?

[00:04:36] Speaker 02:
Are you, as I can ask them, just well so a practice editor of this stuff, or are they just a licensee?

[00:04:44] Speaker 00:
So we've got to divide up the two WellCell entities.

[00:04:46] Speaker 00:
There's WellCell Global, which is supposed to be the IP holding entity.

[00:04:51] Speaker 00:
Then there's WellCell Support, which is the licensor to all these other entities.

[00:04:56] Speaker 00:
The evidence is that there's 140 licensees, and eight are added every other week.

[00:05:04] Speaker 02:
So they don't practice it?

[00:05:05] Speaker 02:
They just license it?

[00:05:06] Speaker 00:
There's some evidence that they might have two facilities that WellCell Support.

[00:05:11] Speaker 02:
When you were the licensee,

[00:05:13] Speaker 02:
first and then post-license when the license terminated, would one of your clients, or I don't know what they're called, would they know, do you have WellSell all over your website or on your equipment or whatever?

[00:05:31] Speaker 02:
I mean, would somebody coming in, and let's assume they objected to your practices or thought you weren't very good,

[00:05:38] Speaker 02:
Would they have any reason to associate what they're doing with what WellCell does?

[00:05:43] Speaker 00:
No, Your Honor.

[00:05:44] Speaker 00:
And in fact, there's testimony in the record that the types of devices that can be used to do this infusion of insulin are made by multiple manufacturers.

[00:05:55] Speaker 00:
And so it's not a WellCell device.

[00:05:57] Speaker 00:
What WellCell is trying to claim is that it somehow optimized the infusion of insulin, but it has nothing to do with a particular device.

[00:06:07] Speaker 01:
What about under training materials?

[00:06:09] Speaker 01:
They argued a lot about how you're using your training stuff, right?

[00:06:13] Speaker 00:
Their training materials, they provided said well-sell, but those were returned pursuant to the court's injunction.

[00:06:20] Speaker 00:
So there's no use of any well-sell materials, and nor is that an issue for either trade secret or patent.

[00:06:26] Speaker 02:
Let me ask you to move on to just

[00:06:32] Speaker 02:
In the interim, my understanding is, has the district court dealt with your 12b6 on the 101 issue?

[00:06:39] Speaker 00:
You're correct that the district court ruled on the motion to dismiss, which raised a 101 issue and declined at that time, finding that it was too premature to do so at the motion to dismiss stage.

[00:06:52] Speaker 02:
So what's anything next?

[00:06:54] Speaker 02:
Are you filing for summary judgment, or are you just on hold?

[00:06:58] Speaker 00:
Actually, the district court also stayed the district court proceeding pending this court's decision after this court stayed the injunction.

[00:07:06] Speaker 00:
So it went further.

[00:07:07] Speaker 00:
It stayed the entire case.

[00:07:10] Speaker 00:
And so the case is state pending Your Honor's decision.

[00:07:13] Speaker 00:
But we believe that that decision with respect to the motion dismissed, and also the failure to consider that invalidity issue at the preliminary injunction stage.

[00:07:23] Speaker 02:
Well, that's another issue.

[00:07:24] Speaker 02:
That's a separate issue before us.

[00:07:26] Speaker 02:
That's correct.

[00:07:27] Speaker 02:
Assuming that we assume, hypothetically, we will reject that.

[00:07:32] Speaker 02:
So then where are you left on the 101?

[00:07:35] Speaker 02:
You'll reject it on the basis that it was not adequately preserved before the district court.

[00:07:40] Speaker 02:
That's just a hypothetical.

[00:07:41] Speaker 00:
Sure.

[00:07:42] Speaker 00:
And it was presented in a supplemental brief the day before the hearing started.

[00:07:46] Speaker 00:
But the 101 issue, we believe, is on the face of this patent.

[00:07:53] Speaker 00:
I mean, I think that whether it's relating to a natural law issue, that this court decided in a chromadex when you found that the NF was in milk, here we're talking about infusing it.

[00:08:03] Speaker 02:
So why don't you make more of it?

[00:08:05] Speaker 02:
Now, on the waiver issue that's before us, not only did you not raise it in that day at the hearing, the oral hearing with the district court judge, which is a problem for you, I think.

[00:08:16] Speaker 02:
But when you look back at the papers, you didn't make a very fulsome 101 argument in the papers that were before here with respect to the injunction.

[00:08:24] Speaker 00:
It was a two-page argument in a supplemental brief, but there was a four-page section of the motion to dismiss, which was incorporated into the supplemental brief that raised this 101 assumption.

[00:08:35] Speaker 02:
So the motion to dismiss was incorporated in the supplemental brief.

[00:08:40] Speaker 02:
Responding to the P.I.?

[00:08:42] Speaker 00:
That's correct.

[00:08:43] Speaker 00:
At appendix 547, it incorporated the motion to dismiss, and pages 178 to 184 address the section 101 challenge.

[00:08:51] Speaker 00:
And so there was no need to brief it again.

[00:08:52] Speaker 00:
It had already been briefed and was still pending.

[00:08:54] Speaker 00:
And we thought the motion to dismiss was important to be decided first, because it even raised it.

[00:08:58] Speaker 05:
What section was it incorporated in of that paper?

[00:09:02] Speaker 05:
Was it incorporated in the argument section?

[00:09:05] Speaker 00:
It was incorporated at the beginning of the brief.

[00:09:07] Speaker 05:
Right, which was really more just an update at the current proceedings section.

[00:09:13] Speaker 00:
Correct, at the beginning of the motion.

[00:09:15] Speaker 05:
So it wasn't in the argument section, which is, hey, also we think there's a 101 problem.

[00:09:20] Speaker 05:
Incorporated by reference is our...

[00:09:22] Speaker 05:
now pending motion.

[00:09:23] Speaker 00:
There's a separate 101 section, I agree, that's in the brief.

[00:09:27] Speaker 00:
It doesn't incorporate in that spot.

[00:09:29] Speaker 00:
I don't think federal rules, so procedure 10 requires that.

[00:09:31] Speaker 05:
Well, I guess what I'm trying to figure out is, is that a sufficient signal to the district court that you're really putting 101 in play or you're injecting the entire motion to dismiss into this paper if it's only

[00:09:44] Speaker 05:
up in the earlier section of the brief, which was just talking about the current status of the proceedings within the court.

[00:09:52] Speaker 00:
Two reasons that I say it would be.

[00:09:54] Speaker 00:
Number one is that on the second day of the hearing, this was a two-day hearing.

[00:09:57] Speaker 00:
I understand the statement was made on the first day of the hearing by trial counsel.

[00:10:00] Speaker 00:
But on the second day, he asked that he said, the only thing I'd ask is we submitted some supplemental briefings filed last Friday.

[00:10:08] Speaker 00:
As long as the court will consider that, we don't have a need for further arguments.

[00:10:11] Speaker 00:
And so the court said, very good.

[00:10:13] Speaker 00:
And so the hearing ended.

[00:10:15] Speaker 02:
But what was the play between that and the motion to dismiss?

[00:10:17] Speaker 02:
I thought you started to say that you were contemplating or hoping that the motion to dismiss would be disposed of before the piad was disposed of.

[00:10:24] Speaker 00:
My point was that the motion dismissed was important because it raised an issue of personal jurisdiction.

[00:10:30] Speaker 00:
And the district court should have addressed that first.

[00:10:32] Speaker 00:
In fact, the district court entered an injunction against two individuals and then, on the motion dismissed, decided that she did not have personal jurisdiction over those individuals and dismissed them from the case.

[00:10:43] Speaker 00:
We believe that should have been addressed before.

[00:10:44] Speaker 00:
So those types of issues that were raised in the motion dismissed were also relevant to the pending injunction proceeding.

[00:11:01] Speaker 02:
Are you seeking a reversal or just a remit?

[00:11:07] Speaker 00:
We think that the injunction should be reversed and vacated because we think that the problems with respect to a failure to show a substantial likelihood of success on the patent claim was an obligation that the plaintiff had and didn't meet that obligation.

[00:11:21] Speaker 00:
It didn't address a question of invalidity that had been raised.

[00:11:24] Speaker 00:
And with respect to the trade secrets, didn't identify the trade secret, all six factors that the Fifth Circuit requires.

[00:11:31] Speaker 02:
Well, so I was asking you, is it a reversal or a vacate?

[00:11:34] Speaker 02:
And you said it's a reversal and a vacate.

[00:11:37] Speaker 00:
Well, to vacate is what I would say, because it should not be remanded for further proceedings, because the plaintiff had the opportunity to meet its burden and didn't do so.

[00:11:48] Speaker 00:
It should be vacated.

[00:11:50] Speaker 05:
That would require us to go delve into the briefing and examine for ourselves whether there was a total failure proof in the presentation in the briefing.

[00:12:02] Speaker 05:
That's a different exercise than just looking at the face of the district court opinion and saying, uh-oh, the district court opinion has a bunch of holes in it, and so for that reason, the district court needs to do it over again.

[00:12:17] Speaker 00:
I agree with you, except that here... Do we have all the briefing?

[00:12:20] Speaker 00:
You don't have all the briefing.

[00:12:22] Speaker 05:
So then we can't make that assessment, can we, that there was a total failure of proof by the plaintiff that would therefore

[00:12:31] Speaker 05:
result in an outright reversal, as opposed to a vacate remand do-over by the district court.

[00:12:37] Speaker 00:
I believe you can, because there's only two pieces, two sets of evidence, the Hepford testimony and the Calder testimony.

[00:12:44] Speaker 00:
So based on the evidence, you can make that determination.

[00:12:46] Speaker 00:
I would also point out that on the face of this injunction, based on this court's decisions in ABC and Selgard, that you can make the determination that this does not meet the rules.

[00:12:57] Speaker 05:
Is there anything stopping the parties from

[00:13:00] Speaker 05:
giving this court the full briefing on the beyond?

[00:13:04] Speaker 05:
Absolutely not.

[00:13:07] Speaker 04:
Just briefly, can we talk about the trade secret aspect?

[00:13:10] Speaker 04:
And to the extent you can speak about it in open court, what can you tell me is where I can look for a good identification of the trade secret?

[00:13:20] Speaker 00:
You're not going to find it.

[00:13:21] Speaker 00:
You're going to find that in appendix 20, there's a discussion of know-how and show-how.

[00:13:25] Speaker 00:
and that the district court relies on, which is the testimony of the CEO of the plaintiff, and that there is never an analysis of the six factors that the Fifth Circuit talks about in the Heil case, applying those to a particular trade secret, and then more importantly showing use.

[00:13:41] Speaker 00:
Back to Judge Pro's point, everything was based upon the fact that there might have been access prior to the time that the license was terminated.

[00:13:48] Speaker 00:
There's no showing of use after the license was terminated.

[00:14:03] Speaker 03:
Good morning, Your Honors.

[00:14:04] Speaker 03:
My name is Lama Barazi, and I'm here on behalf of the Apple Ease, WellCell Global, and WellCell Support.

[00:14:12] Speaker 04:
Did you identify any assert claims as part of the P.I.

[00:14:15] Speaker 04:
motion?

[00:14:17] Speaker 04:
Were claims brought to the table?

[00:14:19] Speaker 03:
We asserted all of the claims in the 990 patent and the 595 patent.

[00:14:24] Speaker 05:
Which patent claim was the judge focusing on when it concluded there was a likelihood of success of infringement of the patent?

[00:14:33] Speaker 03:
I believe the judge was focused on claim 1 of the 990 patent.

[00:14:37] Speaker 05:
So where in claim 1 is there something that relates to, I don't know, a data encryption room or something like that?

[00:14:47] Speaker 05:
She made reference to that.

[00:14:49] Speaker 05:
And I just got lost looking at claim 1, the first claim of this patent, where

[00:14:58] Speaker 05:
Whatever she was thinking about with respect to that term lines up with any claim limitation for claim one.

[00:15:04] Speaker 03:
I believe the data encryption reference is in one of the dependent claims of claim one.

[00:15:14] Speaker 03:
So where can you point out which one?

[00:15:19] Speaker 03:
Not off the top of my head.

[00:15:21] Speaker 04:
Where can you point us to in the

[00:15:23] Speaker 04:
opinion itself so that we would see that the judge was focusing on claim one.

[00:15:27] Speaker 04:
Is there a page you can point us to?

[00:15:31] Speaker 03:
Well, on page 15 of the court's findings of background conclusions of law, the court defines the scope of the 990 patent that it claims protocols used to determine dosing ranges as part of WellSell's patented modality.

[00:15:48] Speaker 03:
And that's in reference to claim one of the 990 patents.

[00:15:55] Speaker 05:
Do you understand how this case, when it comes to preliminary injunction decisions, it stands apart from what we're normally used to looking at, because we're normally used to looking at a claim of the patent being compared to an accused product or an accused method, and then on a limitation by limitation basis,

[00:16:23] Speaker 05:
the district court walks through and explains why he or she is convinced that it is likely that the defendant is performing all of these claim steps or has a product that includes all of these recited elements of the claim.

[00:16:38] Speaker 05:
And we don't have that kind of analysis here.

[00:16:42] Speaker 03:
Yes, Judge, I understand that it's a little bit different.

[00:16:45] Speaker 03:
However, I had the opportunity to depose Sean Calvert for a full day.

[00:16:49] Speaker 03:
And I stepped him through.

[00:16:50] Speaker 03:
the entire 990 patent, and I stepped him through it in depth.

[00:16:54] Speaker 03:
And I specifically stepped him through all the limitations of claim one of the 990 patent.

[00:16:58] Speaker 03:
And he admitted that Insulinic practiced all the limitations, even after the termination of the licenses.

[00:17:05] Speaker 05:
Do you have the site for that?

[00:17:08] Speaker 03:
I don't have a specific site off hand, but I can certainly get it to you.

[00:17:11] Speaker 02:
Did the district court refer to that?

[00:17:14] Speaker 03:
Judge, I believe the district court took into consideration Sean Calvert's deposition as well as Scott Hepford's deposition.

[00:17:21] Speaker 03:
And the court, in its findings of fact and conclusions of law, referred to them extensively.

[00:17:26] Speaker 02:
Does she ever say that I conclude that during the period of the license, Calvert was infringing and practicing every step of the patented claims that are at issue?

[00:17:43] Speaker 03:
I don't believe it said in that kind of clarity.

[00:17:47] Speaker 03:
However, the court did find that Sean Talbot was unable to distinguish between the insulin infusion modality that he was using, that insulinic was using, as opposed to well cells modality.

[00:18:02] Speaker 02:
Yeah, but I know.

[00:18:03] Speaker 02:
But you understand the problem we're having.

[00:18:05] Speaker 02:
This goes, the burdens here were completely shifted.

[00:18:09] Speaker 02:
from what is generally done in a PI.

[00:18:12] Speaker 02:
She put the burden on the other side.

[00:18:14] Speaker 02:
That's not the way it works.

[00:18:16] Speaker 02:
My understanding of why one would do that or how one could get away with doing that, perhaps, is if it was uncontroverted, that for 10 years, they had been practicing every step of the patent.

[00:18:30] Speaker 02:
And they stipulated to that.

[00:18:32] Speaker 02:
And then she says, well, OK, if that's true, then you've got to tell me how you've changed.

[00:18:37] Speaker 02:
But I don't see any of that in her opinion or in the record in terms of a conclusion that for 10 years under the license they were practicing every step of the claim.

[00:18:48] Speaker 03:
Judge if I may.

[00:18:50] Speaker 03:
In Sean's deposition testimony he admitted during the entire time that the law that

[00:18:56] Speaker 03:
Insulinic Hialeah and Insulinic Lafayette had a license with WellCell.

[00:19:01] Speaker 03:
They were practicing the WellCell modality and practicing all the limitations of claim one of the 990 patent.

[00:19:08] Speaker 03:
He admitted to all that.

[00:19:09] Speaker 04:
Does that end the actual district court's order?

[00:19:13] Speaker 03:
I do not believe it is, but I believe the court was relying on the deposition and drew from that deposition in order to make this analysis.

[00:19:21] Speaker 04:
How do we know that?

[00:19:22] Speaker 04:
How would we know that?

[00:19:26] Speaker 04:
I mean, what's the basis for your belief that you're saying that?

[00:19:34] Speaker 03:
Well, the court refers several times to Sean Calvin's deposition.

[00:19:41] Speaker 03:
It refers several times to its inability to give him any credibility.

[00:19:46] Speaker 03:
So that's how we know that the court did take into consideration.

[00:19:49] Speaker 02:
Well, look at page appendix 18, because here,

[00:19:53] Speaker 02:
I got the right document.

[00:19:54] Speaker 02:
I think she's talking about Calvin's testimony.

[00:19:57] Speaker 02:
So if she was going to say that, I think it would be on that page.

[00:20:01] Speaker 03:
Yes.

[00:20:03] Speaker 02:
So there's that paragraph.

[00:20:07] Speaker 03:
Are you referring to the trade secrets, Judge?

[00:20:12] Speaker 02:
No.

[00:20:12] Speaker 02:
I think I am.

[00:20:14] Speaker 03:
Because throughout the order, she refers to Sean Calvin's deposition testimony in different sections.

[00:20:19] Speaker 02:
OK, well, I think we'll get 18, because I think here she's talking about the 990 patent.

[00:20:25] Speaker 02:
Calvert testified that the therapy the defendants now perform is similar in that we are still putting into some of these amounts.

[00:20:36] Speaker 02:
Calvert's just indicated that defendants use.

[00:20:40] Speaker 02:
And that's the analysis, right?

[00:20:43] Speaker 02:
I mean, that's the extent of her analysis on what they were doing before and what they're doing now, right?

[00:20:49] Speaker 03:
Well, I believe the court found that Sean Calvert wasn't able to materially differentiate between the modality that he was practicing, that Insulinik was practicing, as opposed to Wellsell's modality.

[00:21:05] Speaker 03:
And there was testimony on the record during his deposition that they were utilizing and practicing every limitation of the 990 patent post-termination of the licenses.

[00:21:19] Speaker 04:
Were you ever worried about this order?

[00:21:21] Speaker 04:
Did you ever say court?

[00:21:24] Speaker 04:
Could you do some additional findings and point out these things you're talking about with the testimony or anything like that?

[00:21:29] Speaker 04:
Was there any additional communication asking for a little bit more specificity?

[00:21:34] Speaker 03:
We did not do that, Judge.

[00:21:37] Speaker 05:
It would be really handy to get the site for the deposition testimony where CalVet reportedly conceded that the defendants are performing every limitation of any of the 990 patent claims post termination of the license.

[00:21:56] Speaker 03:
Certainly good.

[00:21:58] Speaker 03:
I can certainly provide that post hearing.

[00:22:01] Speaker 02:
What about trade secrets?

[00:22:03] Speaker 02:
There's no specificity either on trade secrets based on the opinion

[00:22:07] Speaker 02:
We have no idea what the analysis was or what the trade secrets even were.

[00:22:13] Speaker 03:
Judge, during the two-day evidentiary hearing, Scott Hepford testified as to Wellsell's trade secrets.

[00:22:20] Speaker 05:
How many trade secrets are we talking about?

[00:22:22] Speaker 03:
There are multiple.

[00:22:24] Speaker 03:
The trade secrets include the exact dosaging protocols for the insulin infusion.

[00:22:30] Speaker 03:
It includes hundreds of hours of training that were provided to insulinic defendants.

[00:22:37] Speaker 03:
It includes tables, algorithms.

[00:22:40] Speaker 03:
It includes handbooks, training materials.

[00:22:44] Speaker 04:
Where can we look in the appendix to find all these trade secrets you're identifying?

[00:22:59] Speaker 03:
The findings of fact and conclusions of law outlines the three secrets.

[00:23:03] Speaker 03:
Judge, give us a page.

[00:23:13] Speaker 03:
And while I look for that, if I may.

[00:23:27] Speaker 03:
Well, when the court, page 15 of the findings of fact and conclusions of law of the district court states that... Is this A15 or is this... Do you know the JA side?

[00:23:41] Speaker 01:
No.

[00:23:41] Speaker 01:
Okay.

[00:23:45] Speaker 05:
No, it's not.

[00:23:46] Speaker 05:
That's a different order.

[00:23:54] Speaker 03:
The court noted in the order

[00:23:57] Speaker 03:
that while the 990, you claim one of the 990 patents gives the basic overall modality for the WellSelf physiological insulin resistance protocol, it doesn't specify like the exact therapeutic ranges.

[00:24:15] Speaker 03:
Those are trade secrets.

[00:24:17] Speaker 03:
It doesn't specify the exact dosaging protocols.

[00:24:21] Speaker 03:
Those are all trade secrets that are kept in this encrypted data room.

[00:24:25] Speaker 04:
Would appendix page two be a summary of the trade secrets in paragraph four?

[00:24:30] Speaker 04:
Appendix page two paragraph four, is that a summary of the trade secrets?

[00:24:50] Speaker 03:
Do you have access to the appendix?

[00:24:52] Speaker 03:
I'm trying to look through it.

[00:24:53] Speaker 03:
There are several different volumes.

[00:24:58] Speaker 04:
Well, I think we're appendix page two, so I'm assuming that's going to be volume one.

[00:25:07] Speaker 03:
Yes, Judge.

[00:25:11] Speaker 03:
I'm there.

[00:25:14] Speaker 03:
Page two, I have as the preliminary injunction order.

[00:25:20] Speaker 04:
It's paragraph four, a summary of what you're continuing to treat.

[00:25:25] Speaker 03:
That is a summary.

[00:25:28] Speaker 05:
I guess the struggle I'm having is these are topics.

[00:25:35] Speaker 05:
These aren't the actual trade secrets themselves.

[00:25:38] Speaker 05:
So it's hard to know and be convinced that trade secrets even exist just by listing off the topics in which there are legitimate trade secrets.

[00:25:49] Speaker 05:
Saying specialized medical training is your trade secret.

[00:25:53] Speaker 05:
is not enough to tell me whether in fact there is a trade secret.

[00:25:58] Speaker 05:
Saying specialized medical training, I mean, for lack of a better word, is an abstract idea.

[00:26:04] Speaker 03:
Yes, Judge.

[00:26:05] Speaker 03:
And I think for purposes of this order, which is public, the judge wasn't going to go into depth about what the trade secrets are.

[00:26:14] Speaker 03:
But during the testimony by Scott Heffer, he went into depth about the algorithms, the dosage protocols, and

[00:26:23] Speaker 03:
the therapeutic ranges for which to administer the insulin infusion.

[00:26:30] Speaker 03:
So that was discussed at length at the hearing.

[00:26:33] Speaker 02:
Yeah, the problem for us is we generally, we're reviewing her decision.

[00:26:37] Speaker 02:
I mean, we obviously go through the entire record, but it's kind of hard to even know what she relied on immediately.

[00:26:44] Speaker 02:
Before your time runs out, I just want to ask you about irreparable harm.

[00:26:47] Speaker 02:
Because here, too, her analysis seems pretty truncated.

[00:26:52] Speaker 02:
And I guess it seems that she's relying on what Mr. Hepford said that seems quite speculative in terms of what the risk is here.

[00:27:06] Speaker 02:
I mean, the irreparable harm is usually to competing people, or if they're using well cells' name and they're doing the product.

[00:27:14] Speaker 02:
Here, I thought most of the problems here were related to the fact that they allegedly were misfilling their patients, which is not a reflection on well cells, as far as I can tell.

[00:27:26] Speaker 02:
So I'm not clear on what the basis for this irreparable harm is.

[00:27:31] Speaker 03:
The irreparable harm is that insulinic was a licensee.

[00:27:35] Speaker 03:
And it's using the well cell modality.

[00:27:39] Speaker 03:
And so any kind of misstep that is like would perform would reflect poorly on well cell and it would damage its reputation and its goodwill.

[00:27:50] Speaker 05:
What's the likelihood that they would be performing the infringing method improperly?

[00:27:55] Speaker 03:
There's a high likelihood, Judge.

[00:27:57] Speaker 05:
How do we know that?

[00:27:59] Speaker 03:
Scott Hepford testified at the evidentiary hearing about the

[00:28:05] Speaker 03:
potential for harm and not performing the modality in the proper way.

[00:28:11] Speaker 05:
That's true for licensees as well, as well as let's just say they're infringing.

[00:28:17] Speaker 05:
So they're non-licensed infringers.

[00:28:20] Speaker 05:
If they do it wrong, then there's going to be some harm to the patients.

[00:28:25] Speaker 05:
But we don't know what the likelihood of that harm is.

[00:28:28] Speaker 05:
And we also don't know the likelihood of any improper execution of the patented method by the defendants somehow getting back to getting the blame pinned on the plaintiffs either.

[00:28:44] Speaker 03:
Judge, we have an issue because some of the defendants were licensees, and then there are other defendants who are not licensees and who never received any kind of training from WellCell.

[00:28:55] Speaker 03:
And so that especially poses a significant harm and risk to the public.

[00:29:01] Speaker 03:
Because in order to administer this modality, you have to go through significant training, hundreds of hours of training.

[00:29:08] Speaker 03:
And not doing that.

[00:29:09] Speaker 02:
So why would that point to WellCell?

[00:29:14] Speaker 03:
That would point to WellCell because it would be a reflection of WellCell's technology, WellCell's IP.

[00:29:20] Speaker 05:
OK, we're out of time.

[00:29:22] Speaker 05:
Can we get from the parties a copy of all briefing related to the preliminary injunction below?

[00:29:28] Speaker 03:
Certainly, Judge.

[00:29:28] Speaker 03:
I'll have that to you today.

[00:29:30] Speaker 05:
Thank you.

[00:29:41] Speaker 00:
Four points.

[00:29:42] Speaker 00:
Data storage is in claim 19, not in claim 1 or 2.

[00:29:47] Speaker 00:
The Calvert testimony shows that he did not know about certain limitations.

[00:29:52] Speaker 00:
Appendix 2740, 2776, there are metabolic factor and insulin sensitivity factors.

[00:29:59] Speaker 00:
He didn't know what they were, couldn't testify to them whatsoever.

[00:30:03] Speaker 00:
Then there's the weight management protocol.

[00:30:05] Speaker 02:
So you're saying that he did not acknowledge any of the practices, all the steps

[00:30:09] Speaker 00:
And it's APPX 3028 and 3031 regarding the weight management protocol limitations.

[00:30:16] Speaker 00:
You asked a question about.

[00:30:18] Speaker 00:
what the trade secrets are.

[00:30:20] Speaker 00:
They were told today that they are the dosing protocol.

[00:30:24] Speaker 00:
Mr. Hepford testified at APX 1605 that it's disclosed in the patent, that the range is disclosed in the patent.

[00:30:31] Speaker 00:
Under this court's decision in accident packaging, under the Fifth Circuit's neurologics test, the patent and the trade secret, if they cover the same subject matter, it's not a trade secret.

[00:30:40] Speaker 00:
The second thing that you heard today was that there was an algorithm

[00:30:44] Speaker 00:
Appellee's brief at 35 says it's the algorithm the algorithm is the 595 patent according to the court below and a PPX 16 where she was quoting mr. Hepford who said that at 1607-8 There's no the one thing I want to say though on the patent versus trade secret.

[00:31:01] Speaker 04:
I looked at some of that testimony I guess 1605

[00:31:04] Speaker 04:
And I think they were trying to say, or at least the deponent was trying to say, that there was a difference between what was disclosed in the patent and then there was some more detail that was really the real crux of the trade secret, so to speak.

[00:31:18] Speaker 04:
There was some delta there.

[00:31:19] Speaker 04:
Do you get what I'm saying?

[00:31:20] Speaker 00:
I understand what you're saying, and I can't find any evidence of it in the record.

[00:31:26] Speaker 00:
It's not referenced anywhere by the district court.

[00:31:28] Speaker 00:
And I'll point out to your honor that tabs 27 and 28 of the appendix is where Mr. Hepford testified.

[00:31:35] Speaker 00:
That's not under seal.

[00:31:37] Speaker 00:
So if he was testifying about trade secrets at this injunction hearing, he did it at a public hearing.

[00:31:41] Speaker 00:
And so it's definitely not a trade secret.

[00:31:43] Speaker 00:
And I can't see either where there's identification of a specific

[00:31:48] Speaker 00:
improvements upon that patented technology that's then being used.

[00:31:53] Speaker 00:
And because both of those failures occur, there is no trade secrecy.

[00:31:58] Speaker 02:
Thank you.