[00:00:00] Speaker 00:
Dakota Development and Frantisek Krabel versus Goodyear Tyre and Robert Benedict, 2023, 1880.

[00:00:11] Speaker 00:
Mr. Cloran, when you are ready.

[00:00:17] Speaker 02:
May it please the court.

[00:00:18] Speaker 02:
I'd like to start first with the issue of definiteness.

[00:00:22] Speaker 02:
The existence of a trade secret is a question of fact.

[00:00:25] Speaker 02:
So is misappropriation.

[00:00:27] Speaker 02:
Definiteness is part of that factual inquiry.

[00:00:31] Speaker 02:
Every case that the parties have cited on definiteness is treated it that way.

[00:00:35] Speaker 02:
So those cases all ask, well first they apply a sufficiency of the evidence test, and the question they ask is would a reasonable jury be able to conclude based on the trial evidence that there is the existence of a trade secret.

[00:00:51] Speaker 02:
Controlling opinion on point here from the Sixth Circuit is the Cottle Seed opinion.

[00:00:56] Speaker 02:
And that's exactly what the court did in Cottle Seed.

[00:00:58] Speaker 02:
So the first thing they do is they set out the Rule 50 standard as I've just articulated it.

[00:01:05] Speaker 02:
Then they say the main event here is definiteness.

[00:01:07] Speaker 02:
Then they set out the definiteness standard.

[00:01:10] Speaker 02:
They look at the evidence and ultimately conclude that there was sufficient evidence to support the jury's determination.

[00:01:18] Speaker 04:
So looking at the district court opinion and the record here, it seems to me there's a question of what the definition of the trade secret is and whether they're bound by their interrogatory answers.

[00:01:35] Speaker 04:
The district court said that it was a closed interrogatory answer.

[00:01:40] Speaker 04:
It couldn't be supplemented.

[00:01:41] Speaker 04:
In other words, that the trade secret was to be defined for purposes of trial by that interrogatory answer.

[00:01:48] Speaker 04:
I didn't see on appeal that you challenged that ruling so that we're in a situation where we have a definition of the trade secret, and we have to decide whether that trade secret is defined in the interrogatory answers or trade secrets are not.

[00:02:09] Speaker 04:
Is that fair?

[00:02:11] Speaker 02:
Your Honor, so interrogatory two was a list.

[00:02:14] Speaker 02:
So you're correct.

[00:02:15] Speaker 02:
The court did order a closed list.

[00:02:19] Speaker 02:
The court ordered two things, a closed list, and that's interrogatory two, but also interrogatory one to provide all of the information that was provided to Goodyear at the two meetings.

[00:02:29] Speaker 02:
And so the two interrogatories were together.

[00:02:31] Speaker 04:
OK, but do you agree then in terms of deciding what the trade secret is we go with the interrogatory answers?

[00:02:39] Speaker 04:
And we decide whether it was sufficiently definite, et cetera, et cetera, looking at the interrogatory answer?

[00:02:47] Speaker 04:
No, Your Honor.

[00:02:48] Speaker 02:
Part of it, no, Your Honor.

[00:02:49] Speaker 02:
We would look at the trial evidence.

[00:02:51] Speaker 04:
Well, that's my problem.

[00:02:52] Speaker 04:
Why do we look at the trial evidence when the district court said you have to go with the definition you provided in the interrogatory answer and you can't supplement it?

[00:03:03] Speaker 02:
Well, Your Honor, because there was a trial and none of the evidence was excluded.

[00:03:09] Speaker 02:
So once the evidence comes in, the jury considers that evidence.

[00:03:13] Speaker 04:
I think that's really responsive to my question.

[00:03:16] Speaker 04:
I mean, the judge says, you've got to go with the interrogatory answers.

[00:03:21] Speaker 04:
You can't supplement.

[00:03:22] Speaker 04:
You're not challenging that ruling.

[00:03:24] Speaker 04:
So doesn't that mean that you're stuck with what you said in the interrogatory answers?

[00:03:31] Speaker 02:
We are stuck with what we said.

[00:03:34] Speaker 02:
We're not disputing what we said in the interrogatory.

[00:03:38] Speaker 02:
But the issue of definiteness and whether there's sufficient evidence on the record is also informed by the testimony at trial, by the documents and other evidence at trial.

[00:03:52] Speaker 02:
Which we think is a moment we reject that.

[00:03:54] Speaker 04:
I'm sorry?

[00:03:56] Speaker 04:
Let's assume we reject that, that we say we have to go with the interrogatory answer.

[00:04:02] Speaker 04:
In terms of the interrogatory answer, let's take Trade Secret 24 as an example.

[00:04:13] Speaker 04:
Don't you lose on Trade Secret 24 if we go with the interrogatory answer, since the patent application seemed to disclose what was described in the interrogatory answer?

[00:04:25] Speaker 02:
No, Your Honor.

[00:04:26] Speaker 02:
So I'd like to point the court to page 28 of our brief.

[00:04:32] Speaker 02:
Page 28 of our brief is the Goodyear Invention Disclosure Form.

[00:04:38] Speaker 02:
This is the Invention Disclosure Form from Dr. Benedict that he came up with at Goodyear about two weeks after meeting with COTA.

[00:04:47] Speaker 02:
COTA's claim has always been that what is identified on the Invention Disclosure is the new tube.

[00:04:55] Speaker 02:
That is what's close to and above the rim, as described in Trade Secret 24.

[00:05:00] Speaker 02:
What is not is the prior art, which is in between the tire and the rim.

[00:05:04] Speaker 02:
And Mr. Proble testified consistently throughout the trial that Trade Secret 24 is close to and above the rim.

[00:05:13] Speaker 01:
What part of Trade Secret 24 is not disclosed by the 2007 PCT application?

[00:05:20] Speaker 02:
The part about being above the rim.

[00:05:21] Speaker 02:
So that's the key part.

[00:05:23] Speaker 02:
Well, two parts.

[00:05:24] Speaker 02:
One, in the sidewall and above the rim.

[00:05:27] Speaker 02:
And so the 2007 PCT, what it shows, it shows a pump tube.

[00:05:34] Speaker 02:
And this is on, this is shown on page, you can look at it, page 24 of our brief.

[00:05:42] Speaker 02:
And so this is direct from the 2007 PCT.

[00:05:46] Speaker 02:
Figure 2A shows a normal sidewall.

[00:05:49] Speaker 02:
And you can see there's space in between the tire sidewall and the rim.

[00:05:53] Speaker 02:
Figure 2B shows Mr. Proble's

[00:05:57] Speaker 02:
prior art invention which he called a flat tube and it's a tube that's inserted between the sidewall and the rim and the tube is open like this and when it goes in between the rim and the tire it's sealed and then there's a chamber that's left open and that's what becomes the peristaltic pump.

[00:06:14] Speaker 00:
Counsel, I'd like to ask about damages.

[00:06:17] Speaker 00:
Is it correct that Goodyear made made no product encompassing whatever you claim to be a trade secret?

[00:06:26] Speaker 00:
and made no sales and no profit?

[00:06:30] Speaker 00:
And if so, how could there be damages for whatever occurred with what you claim to be a trade secret?

[00:06:38] Speaker 02:
So, Your Honor, you're correct.

[00:06:40] Speaker 02:
Goodyear did not, well, partially correct.

[00:06:44] Speaker 02:
So Goodyear made thousands of tires and put them on the road and drove them millions of miles across the United States.

[00:06:51] Speaker 02:
And the Department of Energy said, you're good, you're golden, this product works, you can launch it.

[00:06:56] Speaker 02:
Good, you didn't launch it.

[00:06:57] Speaker 00:
But not with your trade secrets, or what you claim to be a trade secret.

[00:07:02] Speaker 02:
No, they did.

[00:07:03] Speaker 02:
So Goodyear's self-inflating tire, Goodyear's self-inflating tire that has the optimal location for Mr. Crabble, that tire was made, it was put on, they made thousands of them, and they did fleet testing on trucking fleets for years to prove out the tire.

[00:07:21] Speaker 02:
And the Department of Energy gave that a green light.

[00:07:24] Speaker 01:
I thought what Judge Laurie was saying is more accurate than what you're stating.

[00:07:28] Speaker 01:
I thought in at least the materials that I read,

[00:07:31] Speaker 01:
it indicated that nothing was actually commercialized in terms of that.

[00:07:36] Speaker 02:
So it wasn't commercialized.

[00:07:37] Speaker 02:
So this was testing that a tire has to go through before it goes into full commercial production.

[00:07:43] Speaker 02:
And Goodyear ultimately canceled the program.

[00:07:46] Speaker 02:
So it is correct that Goodyear didn't make any significant amount of actual commercial sales.

[00:07:53] Speaker 02:
There were a few, but there was no significant.

[00:07:54] Speaker 00:
What deprived you of commercial sales?

[00:07:58] Speaker 02:
Correct.

[00:08:00] Speaker 02:
What Goodyear did deprive COTA of is licensing revenue.

[00:08:03] Speaker 02:
So COTA is a small startup company.

[00:08:05] Speaker 02:
It sells technology.

[00:08:07] Speaker 02:
And so what COTA got deprived of was licensing revenue.

[00:08:11] Speaker 01:
Importantly... COTA did not have a commercial product either, right?

[00:08:17] Speaker 02:
Well, that's correct.

[00:08:19] Speaker 02:
Koda did not have a commercial product.

[00:08:21] Speaker 02:
Koda was marketing what it called its FlapTube, which is a device that can be added to a tire.

[00:08:27] Speaker 02:
And so a lot of self-inflating tires on the road today, you can add a device on top of a normal tire.

[00:08:32] Speaker 02:
But I want to make one important point about trade secret law and royalty, how that works.

[00:08:38] Speaker 02:
So the trade secret statute says, in lieu of actual damages, the jury can award a royalty.

[00:08:43] Speaker 02:
And what MidMichigan case, the Avery-Denison case, and the University Computing case all say is that it doesn't matter whether or not there's commercial success.

[00:08:54] Speaker 02:
The plaintiff fulfills its burden of proving damages by showing misappropriation in subsequent commercial use.

[00:09:00] Speaker 02:
and introducing evidence by which the jury can value the rights the defendant has obtained.

[00:09:06] Speaker 02:
And so the point of these cases that ultimately culminate in the Ohio standard jury instruction is that... Were the damages theories that were going to be pursued set forth in the pretrial order in this case?

[00:09:21] Speaker 02:
I'm sorry?

[00:09:21] Speaker 01:
Were the damages theories that were going to be pursued set forth in the pretrial order in this case?

[00:09:27] Speaker 02:
I don't think we had a pre-trial order, but the damages theories for royalty were set forth in our interrogatory responses.

[00:09:37] Speaker 02:
In fact, the court denied a motion in Lemonade, so Goodyear moved to Daubert Cotter's actual loss theory.

[00:09:44] Speaker 02:
And the court denied that, and Goodyear at the same time moved for a motion and lemonade against Cota's royalty theory.

[00:09:53] Speaker 02:
And the court denied that.

[00:09:55] Speaker 02:
And so then that was before trial.

[00:09:58] Speaker 01:
And then at the end of... What would you say would be the best thing in the record that would have fit the opposing party on notice that you were seeking?

[00:10:13] Speaker 02:
Three things, Your Honor.

[00:10:16] Speaker 02:
One, the statute itself, which says that in lieu of if you can't prove actual loss, then the jury's allowed to award a reasonable royalty.

[00:10:23] Speaker 01:
I understand the statute says that, but what did you communicate in terms of the damages theory?

[00:10:28] Speaker 01:
You would pursue a trial.

[00:10:29] Speaker 02:
That's what I don't know.

[00:10:30] Speaker 02:
So we had an interrogatory response.

[00:10:33] Speaker 02:
And I could direct the court to Goodyear's motion and eliminate on that issue.

[00:10:39] Speaker 02:
And Coder's response and the court's ruling

[00:10:42] Speaker 02:
that Coda did provide evidence that the court denied the motion in Lemonade that we're not allowed to put on a royalty case.

[00:10:50] Speaker 02:
And so what I would also direct the court to is Coda's expert, Shirley Webster.

[00:10:56] Speaker 02:
Ms.

[00:10:56] Speaker 02:
Webster provided a reasonable royalty analysis, went through the whole Georgia-Pacific factors.

[00:11:03] Speaker 02:
And then what Ms.

[00:11:04] Speaker 01:
Webster said is that, of course, is... The Public Policy Council said that, at least in the briefing I was reviewing,

[00:11:10] Speaker 01:
that she refused, Dr. Webster refused to actually pit forth a reasonable royalty damages theory.

[00:11:16] Speaker 01:
Is that not accurate?

[00:11:18] Speaker 02:
That's not accurate, Your Honor.

[00:11:19] Speaker 02:
If you look back at the actual testimony, what they're citing is something that I said in the arguments on the motion in Lemonade.

[00:11:27] Speaker 02:
And what I said is that Ms.

[00:11:28] Speaker 02:
Webster does, in fact, go through a royalty analysis.

[00:11:32] Speaker 02:
She applies the Georgia-Pacific factors and says,

[00:11:35] Speaker 02:
What would Goodyear have paid in terms of a license?

[00:11:40] Speaker 02:
What would COTA have accepted?

[00:11:41] Speaker 02:
But then she says, because COTA is a licensing company and receives licensing revenue as profits, that's actual loss.

[00:11:49] Speaker 02:
And so the difference here is very important.

[00:11:51] Speaker 02:
in actual loss and royalty because there are two different standards.

[00:11:56] Speaker 02:
So for actual loss, COTA has to prove with a reasonable certainty that sales would have been made in the future but for misappropriation, and that's very hard to do.

[00:12:06] Speaker 02:
And so for reasonable royalty, what it specifically says is that it doesn't matter.

[00:12:11] Speaker 02:
You don't look at the ultimate commercial success of the venture.

[00:12:15] Speaker 02:
So the cases are very clear about that.

[00:12:17] Speaker 02:
The standard jury instruction says that, which is based on the controlling Six Circuit cases, it says, a royalty is a license to use the trade secret and measure the value of the trade secret to the defendant at the time of misappropriation, regardless of the commercial success of the enterprise.

[00:12:35] Speaker 00:
Counsel, you're well into your referral time.

[00:12:37] Speaker 00:
You can continue or save it.

[00:12:40] Speaker 02:
I think I'll just make one last point, Your Honor.

[00:12:43] Speaker 02:
Fine.

[00:12:43] Speaker 02:
This is what Mr. Hrabel called a flat tube.

[00:12:45] Speaker 02:
It's in figure 2B.

[00:12:46] Speaker 02:
Then the same thing is the lug boss in figure 2C.

[00:12:52] Speaker 02:
And so when Mr. Hrabel says, when he's talking about what's disclosed in his patent, and he says, well, the lug boss is on the rim.

[00:13:00] Speaker 02:
The flat tube is on the rim, and that's where the peristaltic pump is.

[00:13:03] Speaker 02:
It's on the rim.

[00:13:05] Speaker 02:
It's not above the rim, right?

[00:13:08] Speaker 02:
And the peristaltic pump is up here.

[00:13:10] Speaker 02:
And Goodyear recognized that distinction.

[00:13:13] Speaker 02:
Goodyear told the DOE, Department of Energy, and this is on page 27 of our brief, when they asked for millions of dollars to fund their self-inflating tire development, Goodyear said that we have a new invention.

[00:13:31] Speaker 02:
It's an innovative pump invention.

[00:13:32] Speaker 02:
It doesn't rely on the rim.

[00:13:33] Speaker 02:
It's above the rim.

[00:13:35] Speaker 02:
The prior art out there, coda, he said EG coda, is between the tire and the rim.

[00:13:40] Speaker 02:
That was talking about the 2007 PCT.

[00:13:43] Speaker 02:
That's how Mr. Hrabel explained it.

[00:13:46] Speaker 02:
At trial, the jury was entitled to credit that distinction.

[00:13:51] Speaker 02:
Thank you, Your Honor.

[00:13:52] Speaker 02:
I'd like to reserve the rest for a while.

[00:13:53] Speaker 00:
We will save it for Mr. Kostanis.

[00:14:06] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:14:09] Speaker 03:
I'd like to, I think, start with the questions that Judge Dyke asked my friend.

[00:14:13] Speaker 03:
In this Ohio trade secret case, there's an unusual aspect of this case that my friend didn't point out, and that is that the alleged trade secrets here were conveyed entirely orally.

[00:14:28] Speaker 03:
And that's important here because that was the motivation of the judge for making her pretrial orders requiring the closed list.

[00:14:37] Speaker 03:
The allegation was that at two one to two hour meetings taking place in Europe in 2009, Mr. Frobel, despite his profligate, that's the term we used in our brief, they don't like it, but that's the term that we used, disclosure in patents, in award-winning articles, in PowerPoint presentations, in a website that showed his prototype, he displayed all of his self-inflating tired technology to the world.

[00:15:05] Speaker 03:
Those aren't secrets.

[00:15:07] Speaker 03:
What happened here?

[00:15:10] Speaker 03:
What happened is that he showed Goodyear what he had, which was public, at those meetings.

[00:15:18] Speaker 03:
And then when a patent case did not materialize for him, an investment banker came up with the idea of suing Goodyear for trade secret misappropriation.

[00:15:31] Speaker 03:
It's important to keep in mind also that the facts of this case show that when Goodyear's patent issued,

[00:15:38] Speaker 03:
the one that's the one that brings this court's jurisdiction into play.

[00:15:42] Speaker 03:
Mr. Fraudel didn't say, my God, they've stolen my secrets.

[00:15:46] Speaker 03:
He didn't say that at all.

[00:15:48] Speaker 03:
What he said was, this is my patent.

[00:15:51] Speaker 03:
This is what I've told the world about.

[00:15:53] Speaker 03:
So Judge Leoy quite properly in this case issued orders starting in 2019.

[00:16:01] Speaker 03:
requiring these closed lists, you're not going to get to morph your trade secrets to mold them to what you need.

[00:16:10] Speaker 04:
Okay, but they're saying that even accepting

[00:16:13] Speaker 04:
that the interrogatory answers define the trade secrets, starting with trade secret 24, they say that the patent application and these other public statements didn't disclose a

[00:16:32] Speaker 04:
pump as described as trade secret 24 in the interrogatory.

[00:16:39] Speaker 04:
They say that didn't disclose a pump above the rim.

[00:16:44] Speaker 04:
I think that's their theory.

[00:16:46] Speaker 03:
Well, that is what you heard this morning and that's what Judge Leoy heard.

[00:16:51] Speaker 03:
But they give up the game in their reply brief at page 8 when they say, well, trade secrets aren't like patent claims.

[00:16:59] Speaker 03:
We don't have to be held to the language of the patent claims.

[00:17:01] Speaker 03:
Of course, they do have to be held to the language of the trade secrets that they articulated here.

[00:17:06] Speaker 03:
And take a look at what Mr. Robles said.

[00:17:08] Speaker 04:
So why is it that there was public disclosure of the trade secret?

[00:17:13] Speaker 04:
defined in the interrogatory for Trade Secret 24.

[00:17:16] Speaker 03:
So let's take a look, and I think Judge Dyke, you were exactly right to point out that they have a challenge as an abuse of discretion, the court's pretrial ruling saying you have to have a closed list.

[00:17:28] Speaker 03:
So let's take a look at what that language is of Trade Secret 24.

[00:17:32] Speaker 03:
And if there is any definition here at all, it has to come from the namely, the language after namely.

[00:17:40] Speaker 03:
In the sidewall close to and above,

[00:17:43] Speaker 01:
I'm sorry?

[00:17:45] Speaker 03:
Well you can see it at pages appendix 15 to 19 in the judge's post trial ruling, but this is just the language that they picked for trade secret 24 that I'm reading to you.

[00:17:56] Speaker 03:
Namely, in the sidewalk close to and above the rim where the tire cyclically deforms in response to defamation.

[00:18:07] Speaker 03:
Now Mr. Raubel at trial was asked

[00:18:11] Speaker 03:
And I'm quoting here from Appendix 15757.

[00:18:16] Speaker 03:
This is very important.

[00:18:19] Speaker 03:
He said that locating a peristaltic pump in the tire sidewall near the rim in an area where it cyclically deforms was not a trade secret.

[00:18:33] Speaker 03:
If that's a definite secret, that's the end of the game.

[00:18:38] Speaker 03:
I want to point out, Judge Dyke, in particular in response to your questions, my friend held up parts of his brief, pictures, other things.

[00:18:47] Speaker 03:
He talked about a Department of Energy report.

[00:18:49] Speaker 03:
Those aren't in Trade Secret 24.

[00:18:51] Speaker 03:
This is the game that we played at trial.

[00:18:54] Speaker 03:
Volume 3.

[00:18:55] Speaker 04:
OK, but it would be helpful if you showed us where in the application or where in the article this Trade Secret 24 is described in the interrogatory is disclosed.

[00:19:07] Speaker 04:
Because if I understand what they're saying, they're saying it doesn't disclose the peristaltic pump above the rim.

[00:19:19] Speaker 03:
So you can see this, and I'm going to grab my appendix volume here for a second.

[00:19:34] Speaker 03:
My partner also reminds me that pages 7 to 15 of our brief, we go through all of the disclosures as well as the admissions.

[00:19:44] Speaker 03:
But what the judge cited also contains the summary that we put in front of her in the district court, which is at pages 18.056 to 18.06 up.

[00:20:05] Speaker 03:
you will see, starting at 056, we summarize the PCT publication.

[00:20:14] Speaker 03:
And we point out here that in figure 3H, it shows the circular chamber 1 created in the ancillary structure 6.

[00:20:22] Speaker 03:
And it goes on to say, it is possible, this is the first bullet that's on 18056, it says, it is possible to create the chamber 1 with the extended surfaces 10 in the tire 4 sidewall.

[00:20:34] Speaker 01:
Can you also give us the actual citation to the underlying PCT publication itself so we can compare it to the summary?

[00:20:44] Speaker 03:
Sure.

[00:20:46] Speaker 03:
So the PCT starts at 252.

[00:20:49] Speaker 03:
It's in Volume 1 of the Joint Appendix.

[00:20:53] Speaker 03:
And so what we're looking at there, we were starting by looking at page 17 of the PCT, which is Appendix 270.

[00:21:03] Speaker 03:
Then you go over to page 18, which is appendix 271.

[00:21:06] Speaker 03:
And here's the operative language.

[00:21:10] Speaker 03:
The first paragraph at the top, it carries over.

[00:21:13] Speaker 03:
Although the chamber 1 of the examples is placed mainly to the tire 4 bead, it can also be created while keeping the considerable portion of the design advantages anywhere else in the wall or at the wall of the tire.

[00:21:30] Speaker 03:
Then you go down to the bottom of that page.

[00:21:32] Speaker 03:
In the bottom paragraph that begins at 29-27, the chamber 1 can be created in the ancillary structure 6

[00:21:42] Speaker 03:
or directly in the tire four wall.

[00:21:45] Speaker 03:
Namely, either between the layers of the commonly produced tire four, or if there is not enough space in the tire four wall, it can be created in the lug boss on the tire four wall.

[00:21:56] Speaker 03:
The lug boss, by the way, is sort of an artificial thickening that's needed sometimes if the thickness of the tire is not enough.

[00:22:05] Speaker 03:
So there you're seeing that he's saying to the world in 2007 that

[00:22:11] Speaker 03:
It can be placed anywhere.

[00:22:14] Speaker 03:
On top of that, with regard to the location of the lug boss, he says at trial, it is part of the trial tire sidewall.

[00:22:24] Speaker 03:
Question by my partner, the lug boss is in the tire sidewall?

[00:22:28] Speaker 03:
Answer, the lug boss is part of the tire sidewall.

[00:22:33] Speaker 03:
And I said, he also testified.

[00:22:35] Speaker 04:
Well, how about above the rim?

[00:22:36] Speaker 04:
I mean, looking at your brief, page 8, and for example, looking at their brief, page 24, does this figure with the red circle, is that show above the rim?

[00:22:54] Speaker 04:
Is that the theory?

[00:22:56] Speaker 03:
Yes, because the light gray part, I assume, yeah, you said it's a red circle, so you've got a colorized version.

[00:23:02] Speaker 03:
So the light gray part is the rim, and what you see there in the, what looks sort of like a, I don't even know how to describe that, sort of a slot, a groove, there's some debate at trial whether a slot and a groove are the same thing, but the thing that's circled there in the darker gray is above the rim, because you can see gray in between the light gray and the opening.

[00:23:30] Speaker 03:
So it is above the rim, but close to exactly the language of trade secret 24.

[00:23:37] Speaker 03:
And I just wanted to add on that point that at page 15795, Mr. Hrabel testified that the lug boss is on the rim, near and above the rim.

[00:23:48] Speaker 04:
So this is- Whose testimony was that?

[00:23:51] Speaker 04:
I'm sorry?

[00:23:51] Speaker 04:
Whose testimony was that?

[00:23:53] Speaker 03:
That was Mr. Hrabel.

[00:23:55] Speaker 03:
And that's cited at page 11 of our brief.

[00:23:58] Speaker 04:
Okay, and who's he?

[00:24:01] Speaker 03:
That's the principal of CODA.

[00:24:04] Speaker 03:
The inventor, one of the plaintiffs.

[00:24:08] Speaker 03:
So, what we have here, as we saw at trial, was a lot of

[00:24:16] Speaker 03:
A lot of morphing, to use the term that Judge Leoy used with my friend on the other side.

[00:24:22] Speaker 03:
A lot of morphing of the trade secret.

[00:24:24] Speaker 03:
A lot of adding things.

[00:24:26] Speaker 03:
Trade secret 24 is, Judge Dyke, I think you recognized, doesn't really have definiteness unless you add the things that they want, which are a conventional sidewall or

[00:24:45] Speaker 03:
avoiding rim crush.

[00:24:47] Speaker 03:
Those are things that weren't in there, but they became important at the Jamal arguments, which by the way take up most of volume three of the appendix here.

[00:24:57] Speaker 03:
Seven and a half hours, by the way, of Rule 50A arguments took place at trial.

[00:25:02] Speaker 03:
This judge did not flippantly grant Rule 50B judgment as a matter of law.

[00:25:08] Speaker 03:
She threw out some of the trade secrets at 50A.

[00:25:12] Speaker 03:
reserved on the definiteness of the rest, let the jury go forward, but ultimately said, I'm going to revisit definiteness after the verdict if I have to.

[00:25:24] Speaker 00:
What about damages?

[00:25:25] Speaker 00:
Your opposing counsel said there was a lot of use of what they claim to be trade secrets.

[00:25:32] Speaker 00:
And they were deprived of licensing revenue.

[00:25:38] Speaker 03:
Well of course the trade secret judgment is a firm we don't get here, but there was some talk about a pre-trial interrogatory disclosing their theory.

[00:25:49] Speaker 03:
This is what they said.

[00:25:51] Speaker 03:
And this is, I don't know if this is in the appendix or not, but it's docket 223-20, page 197.

[00:25:59] Speaker 03:
This is what they said.

[00:26:00] Speaker 03:
The theories upon which these and other damages are based and the amounts of such damages will be calculated, supported, and substantiated by and through CODA's expert witnesses consistent with the court's discovery schedule.

[00:26:13] Speaker 03:
Now, Judge Cunningham, you asked my friend about royalty versus reasonable royalty.

[00:26:17] Speaker 03:
It is true that Ms.

[00:26:19] Speaker 03:
Webster, their damages expert, used a royalty theory.

[00:26:23] Speaker 03:
But she insisted that was not a reasonable royalty or a hypothetical

[00:26:28] Speaker 03:
negotiation that was an actual damages theory.

[00:26:32] Speaker 03:
In fact, my friend expressed some frustration in a pretrial conference that Ms.

[00:26:37] Speaker 03:
Webster would not give him a reasonable royalty testimony.

[00:26:45] Speaker 03:
And just to be clear, Judge Lurie, their actual damages theory was

[00:26:50] Speaker 03:
based on speculation, on top of speculation, on top of speculation.

[00:26:55] Speaker 03:
The first part of that speculation was we would be able to turn these trade secrets into patents.

[00:27:03] Speaker 03:
That was asserted, but it was never proved.

[00:27:06] Speaker 03:
And given the prior art in this case, it's a really doubtful proposition.

[00:27:12] Speaker 03:
And the reason, by the way, that was important is that once

[00:27:17] Speaker 03:
a single tire is manufactured.

[00:27:19] Speaker 03:
It's reverse engineered.

[00:27:20] Speaker 03:
There's no more trade secret.

[00:27:22] Speaker 03:
It has no value.

[00:27:23] Speaker 03:
They then had an actual damages theory that required further speculation, which was that we would pay for an exclusive license.

[00:27:32] Speaker 03:
But then, strangely enough, we would go make more revenue by sub-licensing that exclusive license to competitive tire manufacturers.

[00:27:39] Speaker 00:
Did they file patent applications?

[00:27:41] Speaker 03:
I'm sorry?

[00:27:42] Speaker 00:
Did they file patent applications?

[00:27:44] Speaker 03:
Did they file further patent applications?

[00:27:47] Speaker 03:
No.

[00:27:47] Speaker 03:
He had the 2007-2009, and he had other patent applications, but they never showed that they could get patent applications on these trade secrets.

[00:27:57] Speaker 03:
That's the point of all of this.

[00:27:59] Speaker 03:
And one other thing with regard to this argument about the in lieu of language of the statute, that they told the court repeatedly

[00:28:10] Speaker 03:
that their royalty theory, I can give you a citation for this, Appendix 18958, was that their theory was that their actual damages theory and their reasonable royalty theory were the same.

[00:28:26] Speaker 03:
So I don't understand what the

[00:28:30] Speaker 03:
prejudices here for not allowing an instruction on a theory that their expert said she wasn't pursuing, given that they said pre-trial, but they were the same theory.

[00:28:43] Speaker 03:
Once the court has further questions, I'm happy to rest on our brief.

[00:28:48] Speaker 00:
Thank you, counsel.

[00:28:50] Speaker 00:
Mr. Kahn has about a minute and a half.

[00:28:58] Speaker 02:
I'd like to direct the court to Appendix 16802.

[00:29:01] Speaker 02:
This is a brief that Goodyear filed on 50A.

[00:29:07] Speaker 02:
It says, the most straightforward and fundamental reason JMAW should be granted here is COTA has not put on an actual lost case.

[00:29:14] Speaker 02:
Instead, it has presented a royalty theory.

[00:29:17] Speaker 02:
So Goodyear itself argued that we presented a royalty theory.

[00:29:20] Speaker 01:
But opposing counsel just seemed to be distinguishing between a royalty theory and a reasonable royalty theory.

[00:29:26] Speaker 01:
That was the distinction I heard drawn.

[00:29:28] Speaker 01:
How do you respond to that?

[00:29:32] Speaker 02:
There's no difference.

[00:29:33] Speaker 02:
It is a reasonable royalty.

[00:29:34] Speaker 02:
It was a Georgia-Pacific factor analysis that we presented.

[00:29:39] Speaker 02:
And so on this issue of the 2007 PCT, I think there was discussion of page 8.

[00:29:50] Speaker 02:
Mr. Harbaugh testified about this repeatedly.

[00:29:52] Speaker 02:
He said, this is on the rim.

[00:29:55] Speaker 02:
And he explained, just like we just looked at,

[00:29:58] Speaker 02:
This is his invention to make a new tire that has additional rubber here and on the rim.

[00:30:05] Speaker 02:
And so that it's, when the tire deforms, that's closed by the rim.

[00:30:09] Speaker 02:
His trade secret is above the rim.

[00:30:11] Speaker 02:
It's up here.

[00:30:11] Speaker 02:
That is testified about repeatedly.

[00:30:16] Speaker 04:
But doesn't that figure show that the pump is above the rim?

[00:30:24] Speaker 02:
I mean, on page eight of the red brief.

[00:30:26] Speaker 02:
uh... you know your honor what what this this problem repeatedly said that the the pump goes in between the tire in the room and it sits on the real and then after saying that maybe seven or eight times in a row uh... what mister problems that is ok anything that sits on something is actually about i'm trying i'm trying to work for a moment i've been i'm trying to work from the definition of the trade secret that you provided interrogatory

[00:30:50] Speaker 04:
There's lots of evidence that there was public disclosure of that alleged trade secret.

[00:30:59] Speaker 04:
What is it you're saying wasn't publicly disclosed?

[00:31:04] Speaker 02:
So what is not publicly disclosed is the optimal location for a tire producer for a pump that is close to but above the rim and in the sidewall.

[00:31:17] Speaker 02:
And Mr. Hrabel differed his 2007 PCT because that's a pump that goes in between the sidewall and the tire.

[00:31:26] Speaker 02:
And when he said, can it be part of the sidewall?

[00:31:29] Speaker 02:
He says, yes, but only in the sense

[00:31:31] Speaker 01:
Are you just responding with respect to what was not disclosed with respect to the 2007 PCT application or are you also responding in terms of the other public disclosures that opposing counsel points to in terms of articles and the like?

[00:31:49] Speaker 02:
All of them.

[00:31:50] Speaker 02:
So the tire tech article was just an article discussing the invention of the 2007 BCT.

[00:31:56] Speaker 04:
But what's missing?

[00:31:58] Speaker 04:
I'm not understanding.

[00:31:59] Speaker 04:
What is it that's a trade secret that wasn't publicly disclosed in the application or the article?

[00:32:06] Speaker 04:
What feature was missing?

[00:32:08] Speaker 02:
So this is the tire in the sidewall and this is the rim.

[00:32:13] Speaker 02:
Here is where the code of trade secret is.

[00:32:17] Speaker 02:
It goes in the sidewall above the rim.

[00:32:19] Speaker 02:
The 2007 PCT said, make this additional piece, put it in between the tire and the rim, and put the tube there.

[00:32:27] Speaker 02:
That's what Mr. Harrable testified.

[00:32:28] Speaker 01:
Are you saying the code of trade secret is what is in the red circle on page 8 of the red brief?

[00:32:35] Speaker 02:
No, Your Honor.

[00:32:36] Speaker 02:
What's in the red circle on page 8?

[00:32:39] Speaker 02:
That is Mr. Krabbel's 2007 PCT invention.

[00:32:43] Speaker 02:
You'll notice there's a triangle there in between.

[00:32:45] Speaker 04:
So why doesn't that satisfy the interrogatory, the red circle in that figure?

[00:32:53] Speaker 02:
Because that is not in the side wall above the rim.

[00:32:59] Speaker 02:
That sort of corner, this corner, that is something that Mr. Krabbel's 2007 PCT adds

[00:33:09] Speaker 02:
to a normal tire sidewall.

[00:33:12] Speaker 02:
And so it's not in the sidewall.

[00:33:15] Speaker 02:
And look.

[00:33:17] Speaker 01:
Well, I appreciate that you are drawing a figure for us here live on the fly.

[00:33:22] Speaker 01:
But what would be helpful to us so that we can actually have it to take back with us is if you could point to somewhere in the record to show us that.

[00:33:30] Speaker 02:
Yes, Your Honor.

[00:33:33] Speaker 02:
So Mr. Hrabel testified and explained this distinction

[00:33:39] Speaker 04:
Where does he testify that the figure on page 8 doesn't disclose his trade secret?

[00:33:46] Speaker 02:
He testifies at 15496 through 15498.

[00:33:54] Speaker 04:
Okay, that's a pretty big span.

[00:33:57] Speaker 02:
Where exactly does he testify to this?

[00:34:01] Speaker 02:
I'm sorry, 15493 through 94.

[00:34:03] Speaker 02:
He explains how his flap solution is different.

[00:34:06] Speaker 04:
1593?

[00:34:07] Speaker 02:
Yes, Your Honor.

[00:34:08] Speaker 02:
1593 through 1594.

[00:34:09] Speaker 01:
I thought you said 15493.

[00:34:13] Speaker 01:
How many?

[00:34:14] Speaker 02:
I'm sorry.

[00:34:16] Speaker 02:
I'm sorry.

[00:34:17] Speaker 02:
15493 through 15494.

[00:34:24] Speaker 04:
15498.

[00:34:26] Speaker 02:
And also, Your Honor, I think on 15493.

[00:34:28] Speaker 04:
No, no, no, no, no.

[00:34:31] Speaker 04:
Don't just throw numbers at it.

[00:34:33] Speaker 04:
Show us where he testifies that this figure on page 8 of the red brief doesn't disclose his trade secret.

[00:34:47] Speaker 02:
So at 15498, Mr. Harlow testifies.

[00:34:50] Speaker 04:
OK, wait a second.

[00:34:51] Speaker 04:
15498.

[00:34:52] Speaker 04:
OK.

[00:34:59] Speaker 02:
Okay.

[00:35:01] Speaker 02:
He testifies.

[00:35:02] Speaker 02:
The 2007 PCT doesn't want to disclose trade secret 24.

[00:35:28] Speaker 04:
I don't see him on 15-498 giving a testimony that you seem to think he gave.

[00:35:34] Speaker 02:
So, at line 7, the question is, Mr. Hrabel, does your 2007 PCT

[00:35:41] Speaker 02:
Disclosed the tube-in-the-groove trade secret in the location that is close to and above the rim that you've been describing.

[00:35:48] Speaker 02:
So that refers to his earlier testimony.

[00:35:49] Speaker 02:
He says no, it doesn't.

[00:35:51] Speaker 04:
That's not what's shown on page eight of the Red Book.

[00:35:57] Speaker 04:
It's talking about the entire technology article.

[00:36:00] Speaker 04:
Where does he say that doesn't disclose the trade secret?

[00:36:03] Speaker 02:
Your Honor, what is in the Tire Technology article is the exact same disclosure in the 2007 PCT.

[00:36:12] Speaker 02:
The Tire Technology article is about the flat tube invention and the lug boss.

[00:36:17] Speaker 02:
Those are the same things that are in the 2007 PCT.

[00:36:21] Speaker 02:
They're identical.

[00:36:22] Speaker 01:
Do you have any testimony to point us to to equate the 2007 PCT application to the Tire Technology article?

[00:36:44] Speaker 00:
Counsel, your time is well expired if you don't have a ready answer to the Judge Coneyham's question.

[00:36:52] Speaker 02:
So, Your Honor, I would point the court to, and I know I'm out of time, so I'll just give you one last range.

[00:37:02] Speaker 02:
After the cross, we came back on redirect, and at 15949,

[00:37:08] Speaker 02:
through 959.

[00:37:09] Speaker 02:
I recognize that's 10 pages, but Mr. Hrabel there goes through, and he talks about the lug boss and the flap.

[00:37:18] Speaker 02:
And if you look at the 2007 PCT, that's what is discussed there.

[00:37:22] Speaker 02:
And the tire tech article is also the lug boss and the flap.

[00:37:26] Speaker 02:
If you look on the face of them, they're one and the same.

[00:37:28] Speaker 02:
I'd be happy to find that site and provide a 28-J on the site.

[00:37:34] Speaker 00:
Thank you to both Council Locasus and this.