issues in this order unless the court let's me to go in a different direction first well address the fact that there should be no trade secret liability here the one to one ratio that's at the core of this case is the subject matter of the night one patent and the other  is i take it the key to your argument for why this was disclosed it's claim one which just talks about implicitly one to one but doesn't talk about an intern leaving with one to one so i'm not sure why that gets you where you need to go and whether you have anything else to help you with i do have one good strong to it first of all in the claims themselves it says to be open in the shield and one must be proximate to one another that's one secondly look at figures two and three of the patent you will see in a really packed pattern in those circumstances of open and closed world may not be one of the other ratios  other ratios in fact of course one to one is disclosed in other places but just like i'd like to step back there for a second and say that i think that the inquiry under texas law is not just whether this is this is within the written description or belong to the public because it's not that it's not the same thing you can think of the trade secret as essentially if there had been an independent claim which doesn't exist namely one to live and interleaved then it might well have been perfectly proper dependent the texas four uses the term subject matter of the patent that's the sub the ratio and the interleaving is the subject matter of the pet now if there was an additional element of our invention of our of our device the choose device or the it issue devices you know say have a handle on it for something that wasn't covered by the claims and that handle had been a trade secret well then maybe and that would be that would make it much more like the fifth circu decision in philips vs fry that was the one involving the tree stand hunting tree stand and that's the sort of case where a patent in the trade secret can co exist comfortably but patent is drawn to the tree stand the trade secret is for the method of a special method of making the tree stand but it isn't disclosed in the patent but here the subject matter of the patent really puts house to an election once they got the patent they covered that subject matter they covered and in fact they say that that is satisfied here but if i can just walk through very quickly our case with regard to the absence of a secret here who cracked at least if you suppose we were to is understand there basically read alleged have to remain for a new trial at the very least on damages because if for example you say that one to one ratio and of course there are other reasons that you have to remember damages anyway but there's no way that if that only for example the bill versus by which i think goes straight to a permitted use under the agreement that could support a forty eight million dollar judgment here the plastic by the way was already within the inner cells plans and i want to make sure to that the court understand and i want to direct the court to page eighty three zero four nine nine that is a intersil product proposal dated a good four months before the confidentiality agreements of this case that already said that they were going to use lightweight inexpensive secrets here the technical ones everything but the one to one ratio is already disclosed that a three or four night not you've got the eye to see got the analog to digital converter and you've got plastic packaging the only thing you don't have is the to one ratio and we say that's within the subject matter of the patent so no technical but apart from that your are you also know that kind of in reverse engineered yes that's right because by the time but by the time the tallis came to market and they came to market with their product in early zero six we did in fact reverse engineer and so and it went very fast in fact it did it did go very fast it wasn't that there wasn't much of a secret there at all to the extent there was anything at all and we started and finished in january of two thousand  the whole area it would cover the entire period it would cover most of the period because if you take the resource into nearing and say ok from that point that's when we started engineering our own devices then it would be twenty two months it still would've been by the way  identify the components of damages or the components of expenses that needed to be extracted and among those were of course you know research and development costs marketing costs the contribution and of course that's these are the deductions to get to net profits and that doesn't even take into account the apportionment issues which of course it satisfies the burden by identifying the categories without providing evidence of this kind of the we are not claiming that that is the error we might have had that opportunity had the judge in fact followed what he was saying initially but we're not standing here resting and say we held something back what we are saying so is that a impartial educator would do a much better job of doing the sort of deductions and apportionment that are necessary here in addition age eighty judge rather that a jury would have to issue findings on the rule fifty two which would if essential show the determination the supreme court has repeatedly said the discourse meant because it's not damages but it's measured fact by that of the allegedly wrongful gainst of the the defendant is that is an equitable remedy what about the theory which  has popped up in a number of cases that discouragement isn't necessarily in all instances agreeable because it may be used in certain circumstances as a proxy for the losses suffered vain for any indication that the that the discourse going to war here was meant to be compensatory when the judge instructed the jury that compensation was the purpose of the warrant so you can start there but that way you can start there but then when you look at the evidence and you look at what elements went into that for example it's it was entirely in her cells lost profits it was not there was no showing the house would have made the sales in fact it's pretty telling that they didn't make a lost profits claim on their patent on their fact of the matter is that you know no matter who the decision maker is it's too big but with regard to who the decision maker is here it is this cold war that did not have anything to do with their losses it had everything and only to do with our games and if you look at the way the jury was invited to penalize us you certainly see that as well as you look at a question which is i guess jumping around in topics on the assumption is that this question that patent infringement survives there's a question about what if anything to do with the district court's ruling that eliminated ninety nine percent almost i think of the right attentional sales that might have been covered by the western jiko involves a very different section of the infringement statute and it's unlikely to affect this case which is strictly a two seventy cards well that's right that's right i take it your liability are set forth in mister declaration which is of a one to four five six and five seven and this is important the location of the sale as mr oggi set forth with regard to that ninety eight point eight was from not from intersil corporation the defendant in this case but from your sil's affiliate companies in kuala lumpur and in hong kong so just trying to your opinion for the court to carnegie mellon seems to suggest that you've look we've got to have either i'm making or using or selling somewhere in the united states they don't have making or using in fact all that's taking taking place across the border and then also they have lots of evidence that they throw up about the  discussions that that may or may not have taken place in the united states the simple fact is that the sale didn't even involve herself corporation let alone to take place in the united states i've realised the  time there's i've sort of skipped over the patent issue but i want to raise that issue very quickly so that my friend has an opportunity to respond to it from our point with regard to the patent issue is a very simple one but the facts in our case which are undisputed unvarnished in fact not even responded to in in my friend's brief in the before this court are that when the chips are sold they cannot perform the mathematical operation that's required by the last portion of the independent play and what the mathematical subtraction or addition of whatever it is that has to happen there the only way that can happen is if an eye to see what we call that from the trade secret aspect of the case  of course it was we pointed out also a number of there's no evidence that anyone not apple and not anyone ever operated these devices that know the work of capability well right but the claims are drawn to capability and then with regard to what has to happen but how its products do that and how its next generation products were going to do that and the due diligence talks ended then in are still copyright the next generation product the t s l twenty five sixty which had the i with respect to somebody that's misappropriate the trade secret prior to the time that is publicly available yes there were logics case discusses that and in passing the k g case talks about it a little bit more about the misappropriation not about the damage side but here there is no evidence that they relied on the reverse engineering whatsoever there's no evidence that they were using the reverse engineering or anything public even the patent they've talked about on appeal to to make their new product what's interesting all did under the evidence that was shown was that it used the next generation products to sell twenty five sixty that house was releasing and the important thing to  additional evidence going through the president with that all go to increasing damages it could i which is really this is never again is there ever a cutoff for a for a misappropriated product no because it's competing and that the point of trade secret large prevent somebody from taking the trade secret and competing with you even though it's clear to everyone in the industry including the defendant that that product how the product works and that it's on the market and it's readily discerned as to how it works still the damages continue to accumulate with expected between the defendant because unlike patent law misappropriation is a single tort it occurs at one fixed time it's not based upon damages reasonably flowed from the misappropriation from creating an entire line of ambient light sensors that competed and continued to compete the evidence was that even at the preliminary injunction hearing that occurred in this case that they were still selling this device mainly the twenty nine zero zero three that was the main selling device of all of the different devices the nineteen that incorporated the trade secret information but then breaks texas law differs in this respect from general currency it's a little bit different in some senses because texas had not yet adopted the uniform trade secret act and so it's using common law principles regarding damages not some statutory basis for damages under the uniform trade secret from i've not seen cases on that subject and he discussed with us is number one he assumed that every category of expenses that he was talking about and it's not clear what categories they are but he says every category of expens corporation and this product line was one percent of all revenues that all those costs applied in the same pro rata portion as they did for this line of business as it did to the entire corporation and that's an eight two two one one two what doctor you going testified in congress to that was that's not reliable to assume that the cost exists without any interest all documentation without it are still testimony that those costs existed or existed in that proportion and based upon those two assumptions and guess is that he makes estimations that he makes it was not reliable evidence even if it worked then the point becomes that under he are right they've said we think these costs exist and there's no where the jury's allowed to determine whether to believe dr you don't or mr ratliff as to whether these expenses really exist and given that there's not a single interest well documented or inner so representative testimony to support the existence of those costs doctor you go on had subtracted all direct costs attributable to this product line and not use revenues but a profit calculation on on the what is your best case for that proposition are dance of the question as to the best case well they're not many cases that talk about the jury trial and right in the context of  while way western district of washington two thousand and seventeen in which that issue did come up and the issue of discords meant was submitted to the jury the court found that it was a jury question it was a trade secret case that depend on it's very compe remedy is a for measures under well logics for different measures that you can use for determining damages texas law has decided that this is compensatory and so based upon the way they've decided that these are underlying law to see what the situation is that's where dairy queen dead i think that's an important case because they looked at the nature of the claim and they looked at the nature of the relief they said that since the merger of law on equity these distinctions about what we call it although we all learned in law school the discouragement may be equitable that's changed in the terms of what is that this caucus case from the u s supreme court in twenty seventeen distinguished when we're talking about as he see actions and versus a private action was that it was next in start necessary for every possible factual basis for liability to be independent sufficient cargo if a circuit case dealing with a trade secret but no to the existence of one trade secret supports the verdict is what  got it right you know what my question is is is that question the sufficiency of the evidence it's not a sufficiency it is a sufficiency of the question because it's not a contract interpretation question first of all this is a trade secret claim not the breach of contract as in the contract interpretation because the question is whether they used the information for a purpose other than what was allowed by the contract of the questions what is the right to be used for the the context clear nobody said it was unambiguous that it merits or and and so the question is whether they went beyond using the information for the financial condition for determining the finance condition of the other that's the quote from the conflict itself it seems to me that that the way to look at this is to say what the contract says is you're interested in contentiously purchasing this company and you want to look at this information to decide whether you want to go forward with that proposal and there would be therefore as a matter of law there is nothing wrong with looking at having from the ocean as part of making that decision your position finder standard is they went beyond that build market and sell ambient light sensors rather than using it for the purposes of telling whether to purchase so it's not just a question of hey were they making a theoretical decision about whether to build us build their own or device their using our information to make their decision to build they did in fact build they did in fact use that information so in our big contract there would be a sufficiency the evidence question under trade secret and also if it were but this is confusing because use some of the technology was improper of you but that seems to be a different question than presented by this first trade secret about bill versus barr which is on andersen focused entirely on the question of whether technology in building the trade secrets only to the question of whether they should build but right no and i think that's that's something that gets lost in the papers it's not just the issue of could they make a decision to build  versus buy how do i know because the evidence at trial was that they were using terms of the definition of what the trade secret was that was the what the jury i don't want to know the builders by when you know ff was claiming that they used the trade secrets to conduct a build versus buy to determine whether the defendant should design and build the defense competing ambient light sensors but that doesn't talk about parent should design and build the defense computing and get my sensors so it was during the course of that discussion and more importantly order after those negotiations and they definitely use the information to redesign their products so th argument that they were allowed to do these things during the diligence after due diligence ended and it's only two weeks later that they changed their design based upon the design of an unreleased product that you sell twenty five sixty and let me just mention a point about that  pipe for a patent and had a previous product at twenty five fifty in the marketplace and determined through use and trial and error and research and development and expenditure of money that a better way to use these exposes  was to put them together in this interleaved one to one ratio and as a result it kept that information a trade secret and there's no dispute that yes of twenty five sixty that used that design was the first  talking about i just would like to point you to the right most reports in the appendix which is that a one zero four zero five one zero four one two and one four one five which goes through with some detail some of the things  into that initial intersil design which took place four months before or entitled under the confidentiality agreement to use information that we came up with already and it's already in there documented four months before him contemplated in fact if you look at that exhibit you'll see that competitive intelligence at that point was already telling it or sell that house was on the market and that plastic was going to be able to make our products cheaper and more competitive with them with regard to  a legal question that absolutely question of contract interpretation and in fact my friends colloquy with judge bryson shows that bill vs by is just another way of inflaming the jury to argue once again the technical trade secret issue which is if they're finally on the jury trial right my friend mentioned crocus which was decided after the briefing makes very clear that discourse not requires that this is quoting from the case of page sixteen forty discourse but requires that the defend give up those clips those claims properly attributable to the defendant's interference with the claimants legally protected rights it is not at all about the plaintiff's damages it is about the defendants what they generate damages which would seem to indicate a jury trial right when you think i can agree with you in so far as you say can be they want here if for example this work is strictly a one to one that the proof was that every sale we made was a sale they lost then maybe a discourse went to war properly limited with expenses and attribution and that sort of thing what actually be their damages but again i come back to the fact that you're