limited issuers as your authors know you asked us to d address we've raised a number of issues on appeal both both sides some of us some in conjunction and some separately but your honour's have asked us to address one issue today's argument and that question is simply whether or not the pennsylvania uniform trade secrets act requires one to own a trade secret before one can sue or state a claim of damages against one's former employee the subsequent vendor who was actually given permission to reporting what is your position if you are representing both parties and i'm functionally is there a difference i don't believe there is functionally a difference believe it's a question of whether or not one particular claim that i don't believe it's jurisdictional import because the jurisdiction of diversity court was based on diversity of citizenship and what is the position of standing well our position was is that basically this point it was not the right point if it did not have the ability to sue for this particular claim because it didn't have any rights under the statute to in fact soup or it it gave up all its contractual rights when it in fact sold the trade secrets to virginia space which would readily admitted the case you know when the case was filed a f s stated great in its complaint in paragraph thirty nine we don't own the legal rights to this these trade secrets that's the reason why the motions to dismiss were filed because they readily admitted at beginning in two thousand and nine they had sold all the rights to these trade secrets to bridge into space not only do they sell all the rights but they stated that virginia space was the exclusive owner of all those rights to the moreover did they have the right to possess them and to use them that's what the that the district court said well under the trade secrets act all we have to look to see is whether they have whether they are quote lawful possessors of the trade secrets rate and you will get that down my question is as a matter of fact isn't it the case that they did was lawful possession and that they were titled to have and use the street secrets i would argue that they did not have lawful possession because they signed a contract in two thousand and nine which they gave exclusive right and they assigned all rights to the trade secrets to prevent a space will they offered no evidence ron or didn't for genius speech have to give them the right to possess and use them otherwise the couldn't affect the contract because service the contract they could give them virginia space was the ultimate owner of the product out and there was no this was not a situation where there was quote joint ownership and there was no other life in singling out ownership and not possession that's what that's what the possess this even if we accepted your assertion that they didn't own is it nevertheless the case that they lawfully possess them but your i don't know how one can lawfully possess a trade secret when they have contractually sold it in a signed all rights to another party pretty easy all you has to happen is the person who's got cool title unquote to it says ok listen you're under a confidentiality agreement you already know about these things because you develop them now you use them and operate them to my benefit in other words you can think of it is a license you can think of it is in a shared position but there's possession even if there's not quote ownership unquote that's isn't that i you denying that that's what happened here in fact that didn't happen here there was but he didn't possess them there was supposed to be a confidentiality agreement and where those parameters were to to be put in place and i am passed and virginia's base never signed that there the case law provides that when you have an express contract you can't use an implied contract in the gate what the express contract says expects contract here sad as in a if i submitted from the beginning they were not the exclusive owners of this property deposition was not lawful that's the position correct or art because virginia space have the ultimate control over the trade secrets and that's why they also gave permission to my clients to take a look at it as well as to mr huber to to use them and so that's the issue in this case here and i think as this court recognized recently in their case i may be mispronouncing that that name and i apologize to the medical center for missed pronouncing it but in her a if this court recognized and i think where the district court w was the district court said well look i'm looking at the uniform trade secrets act and i can find nothing in the trade secrets act which expressly says that you have to quote own the trade secret in order to pursue a claim of the trade secrets act right and yet we disagree thief doesn't have it it says nothing about whether the person from whom it was stolen had does it our position was a bit of another especially when you look at the comment particularly underneath that under fifty three dollars or two where it says proper means includes discovery of a license from the owner of the trade secret that that implied ownership but even if you're right roger that that that of another doesn't necessarily mean that then you don't do with it just recorded the district court said simply ok well if the statute doesn't say it i don't look at what common law says the district was quite clear on that the district court said i hear you livingston and haven i hear you mr huber i know of all these pennsylvania cases out there that were part of common law but that's all common law but we now have a new status talk about her is from how does the fact that pennsylvania's adopted this property view on trade secrets bear on standing what goes to the issue of whether or not this particular point i have had the ability to sue for misappropriation so does the focus on the secrecy of the material itself rather than the confidential relationship between the parties and in which the basis of the claim for  trade this publication is isn't the suggestion that a person knows of the sequel material standing because the damage is done by disclosure no the question is whether or not the trade secret is in fact owned by that particular person keep in mind it with regard to pennsylvania's property view even this court recognized more that pennsylvania's view on property law with regard to trade secrets is much more narrow and is very limited as to what plaintiffs can sue for misappropriation a that doesn't mean confidentiality is insignificant or has no part to play in fact the case that cited in van products as soon as it makes that assertion is the supreme court seventeen which says goes and it's a very short case but it says quote that whatever they are the facts the defendant knows them through a special confidence that he accepted and it goes on to say the defendant stood in a confidential relation with the plaintiffs or one of them the st thing that he may sure of is that the defendant shall not fragile you abused the trust in other words even in making its comment about where you start the v m products case reference as a direct cite the du pont case that says confidentiality and a confidential a ship are important so if that's the state of the law in products case in bam products the court again recognizing that in van products we are dealing with the issue of whether or not simply because the former employee had used all the trade secrets could the former employer sued be employee vendor for misappropriation and the supreme court said wait a minute you sold the trade secret and publicized it in sold it to the public in didn't engage in any protection very similar to here well no they stop when you say very similar to here stop for just a moment here but was this a circumstance where the where a fs publicised the trade secret to the public sold it in a way and then had nothing to do with it because that's the assertion van products that they were out of it not that they were still it but that they were out of it right and then actually invent products they were still in it in fact were selling it for twenty five years our position here is that it is one step removed from b n in fact even in more favorable and for the defendants in that this particular plaintiff sold all rights to the trade secret to a rd party who gave my clients permission to use it that's one step removed and drawn you were dealing with products you're dealing with a situation where we just sold to the public and as a result of that the supreme court said ok wait a minute you can do reverse engineering anyone can the public has a right to reverse  get it but here we go one step removed we have a plaintiff who has all told to help like is it what does that mean sold to the public in v m products they were concerned with the issue that the trade secret had been released to the public right again and the question is could that plaintive sue those particular defendants because it no longer had the tracy here we have a situation where this particular plane of advanced fluid systems sold it all right exclusive property to the trade secret owner now space virginia space who gave my client permission to take a look at it yet they've come to court saying we're entitled the super misappropriation we don't own the trade secrets i thought they were coming to court saying that mr huber wrongly took the information they are right and that's exactly what they said in van products as well they said in band products our employee used our trade secret information against us if i could be in products we just established that the assertion was this has become public and sold it to the public that that was the central point and then when they got to the question of is there a trade secret at all they mention property rights and but they cite the dupont case it's the single case they cite which emphasizes confidential relationship no actually rather invent products they say quote we feel this is on page seven hundred and eighty dollars we feel that the authorities holding the public disclosures destroyed plainness right to maintain a cause of action to preserve its trade secret as against a competing former employee who has violated a duty of competence are more sound in theory in practice than those continuing to look at the relationship of the parties as the basis for the action we feel that the widespread publication advertising in this case destroys them products rights to maintain a cause of action for breach of duty not to disclose the trade secrets that's about that's about putting it out into the public right bret that if it's if the supreme court pennsylvania really meant to say confidential malm says we are a competent old bukit state we are not a property of your state i recognise pennsylvania has a very limited view on trade secret law that's what the common law was and there's nothing in the uniform trade secrets act which indicates that it when the general assembly adopted it in two thousand and four it was intended to throw all of that out of the door and in fact is this court indicated in her areas that that wasn't the case ok we've got question question is is pennsylvania property of your state or confidentiality review state with regard to its trade secrets is as relevant to the issue was presented to us interests well but i think it's also relevant to the question here because the different chord took the opinion that i have to interpret the uniform trade secrets act by ignoring pennsylvania prior law and instead just read what this statute says and if i can't find any pennsylvania supreme court decision on what this statute says then i look to federal court decisions and her greatest you're your hon indicated that's not the proper approach this body is here to figure out what the supreme court or predict how the supreme court will in fact address this issue and in order to address that issue you don't look at pronouncements about a federal district courts on on the issue but more the it's me it's maryland that's confidentiality and pennsylvania doesn't care about confidentiality it's not it doesn't it doesn't matter that's that's sort of the lynchpin to your argument right that those statements van products that that site do point case that's really irrelevant because the only thing that matters is ownership ownership ownership that's it doesn't comp it doesn't come into it we didn't it the confidentiality of you or is it the property below and this court was addressing the question of whether or not the adoption of the statute negated common law and this court rolled it did not company we look to the commentary to construed pennsylvania's version of the u t s a in three times in the commentary the drafters are stating that more than one person can be entitled to trade secret protection is just damages too then if we're going to follow the commentary it doesn't that and the inquiry actually there are there the commentary doesn't indicate i mean we disagreed with the district court on its interpretation of the commentary as well those comments just simply recognize what this court recognized the noble which is you could have more than one owner of a trade secret you know if it bridging your space i mean if if the contract was originally written between a f s and virginia space where they would cohen the trade secrets then from the district court that that there was an understanding of confidentiality and that if as closely safeguarded as proprietary information  ailed it's engineering documents no more than necessary to support design installation the nuance and operation of the system the evidence simply doesn't substantiate defend its claim that if this is materials were shared so freely as to with their competitive value we bound by those findings yes but those findings don't go to the issue of what would you really need to look at is was there an understanding by orbital that they didn't have explicit control over this product and they were the ones  decide who is going to see them or not there is no testimony from or go or anybody that orbital and virginia space understood that they no longer had the right to make that decision instead that asked had that right remember is this court indicated in no for giving us the opportunity to give you our views on this interesting issue let me start with a statement that my colleague made about maryland trade secret and the and that of course the with the law that the deed can research ones with constraint let me let me ask you about possession if we assume for the sake of discussion that bit there was making your briefing that well let me actually quoted to you say quote on a this is on page forty seven of your brief a f s had the right to prevent virginia space you use an acronym for from assigning contractual rights to anyone else without f s s express  ownership state it does not look like an older xabi now i apologize if you gave that impression i was just pointing out i mean we did repaint certain rights under the contract they were they were pointing to the one paragraph that they and i want to say well there are other parts of the contractor is a non assignment provision i don't think it's particularly strong or germane in this context i think that what's really jerk what's really the focus of our argument is they say that would tell you maybe something but not much because the background merely common law is different than the background as a vehicle while they both have a car as i just read they both take a proper the same property interest in a trade secret and i think that the issue here is what does what does the uniform aps say i think the uniform act expanded on the different than just title legal partial ownership means is de t m research sad knowledge secret knowledge that you're maintaining secret knowledge and that's why n ownership interest in the sense that the person for whom it was stolen actually owns it it's owned by the corporation not owned by the individuals is it are they a lawful pla i don't know i mean and they might be well i think it would depend on which you rule right because well you're the rule you're prescious to take is if you've got possession any kind of lawful possession matter how you came into it you're off a plane if you have l possession i mean there are three requirement you have to have lawful possession of something that qualifies as a trade secret my hypothetical assumes that right and it has to be taken from you by improper means that's the nd statute that's  and you and you have to suffer actual loss from that misappropriation so i don't know you know we could i don't know the exact contours of your of your shareholder but yes i think if the shareholder suffered have lawful possession of this he is in the corporation he has lawful possession by virtue of his status within the corporation it's stolen from him and he has suffered actual loss from the misappropriation then i think those are the three requirements under puts and i would argue yes he would have standing he would have he would have an ability to assert a claim now you can you know run out other hypotheticals that get you to the absurd one i thought was well suppose you know martina's and target made that big strong back structure of it that helps push the rocket up on the launch pad they have the rights to our our drawings  because they're that the two an interface to our hydraulic cylinder and that strong back structure well suppose they have you know our drawings and their shed over night and hooper stole it from their shad as opposed to taking it from asa i mean that you know you can get sort of what i would call not so hypotheticals but you know it was technically taken from martinez and turk but there are drawings i think what you would look to is who has suffered the actual loss who is the target that's the end of the misappropriation might that's the limiting principle yes i think it has while it's which one of the requirements of puts up as a general matter pennsylvania has adopted the view of the restatement of misappropriation rule applies to improper means in procuring the secret not only from the owner but also from any party holding the secret under a duty to the owner not just close it to others of the amendments to the uniform trade secret act and this was what was adopted and sent out to all of this all of the states for consideration on page fourteen of that document they deal with what you believe the split between the states on the steps limitation issue the question that you are addressing and ask them but here's what they say on page two and i think this is interesting you say the uniform act codified the basic principles of common law secret protection preserving its essential distinction from patent law under both the act and the common law principles for example more than one person can be entitled to trade secret protection with respect to the same information so this was a fundamental structure of the uniform act what became codified in the in the in the formal comment that think that's the correct interpretation but you know i'm good patent law it's very clear the patentee have the right to sue the patent here or legal successors have a right to sue and that's the same thing when the other federal registration acts the copyright act it's the legal and beneficial owner of the trademark it's the register of the market the uniform act very deliberately took a different tack and in what and what i've just read to you and what appears in the end that you really you didn't have a in a lawful possession i mean if you were you decide every bit of your rights away  develop that have to do with anything because lawful possession but the virginia forty testified that they considered them our trade secrets business in our brief that pages sixty four and sixty five the virginia testified they considered them selves legally bound to preserve them as art protect them as our trade secrets there's a virginia statute that's also consistent with that they said we wouldn't disclose them and they considered them to be f s s trade secrets not not fisi s f a's trade secrets i grant you that contract would have given the in the sense of this intellectual property once they bought it from you they can do whatever they want with it there is no reservation of rights in that contract and i saw if in fact they were operating under a public records wa which if somebody else had come in and question being put to you is since there was no reservation of rights virginia space could have done anything with that i bet point and you would have been in a position to stop them and say haste that's it no ok if that's the case then you really do have to concede that there's there's your entire claim here is premised on the notion that they were letting this happen and let this hold on to it and so we had a lawful possession already it's assumed that that's a basis on which you can make your your claim all they'd be him how how do here on it they were used by our former employee in livingston to deprive us to take away illegally two contracts where we were the incumbent vendors so we clearly had a loss from the misappropriation we have lawful possession because the virginia already the whole essence of the contract was that we were to develop these trade secrets well here we are in a little bit of an awkward position because maybe mr hicks and his colleague are precisely in alignment on this but you might have had some rights against for a breach of an employment contract breach of confidentiality associated with that but how do you have rights against the livingston folks if you had no right to stop the information from getting out and got out  a uniform act claim of and by the way in the th circuit subsequent to that in the good baccy holdings joining forces with that with the horse organ and that was another case where the person suing had retain no the documents itself i thought your your argument in essence the way it's based on the district court's findings livingston did so acquiring the documents from stuck with regard to the issue of whether you call it ownership or lawful possession means if i can try to make make them make our business all clear on this issue whether they as have the right to possess the trade secrets after they sold sold them to a half ass the question is is yes they have a right to use that for virginia spaces benefit but the question here is that sou in us for they're not suing us because we use the trade secrets against virginia space in fact there's no dispute that we used to trade secrets to benefit regions space the rightful owner what fs is arguing is that they have a right to spike the fact that the lawful order of the trade secrets one had us to use them they have a right to sue us for having used them i think and so that's the question here is yes they have lawful they may have had both those why why you're fighting well well set that aside i don't know whether it because i guess the question is whether or not when you give exclusive rights over to one party and there's no corresponding license back to a half assed which there isn't in this contract there is no informed irrelevant that as well as the fact that they can change the written contract you know if they're trying to introduce that to change their in contract there's a number of different theories which would preclude that they signed a contract which they have readily admitted undisputedly gave one hundred percent of all the trade secret rights over to us and more importantly have you ever seen anything in the record where orbital says yes you have has a fs has the right to exclude others from using these trade secrets even for those that we designate to use for our own benefit there is no such evidence because virginia space didn't believe that virginia space testified that they thought they had the right to give these contracts to livingston haven or any other subsequent vendor because it was their property