a ninety nine and seven confidentiality agreement and a nine hundred ninety eight master services agreement or m s a they break those contracts by violating the confidentiality provisions of those agreements  which resulted in a misappropriation of trade secrets of the district court of which was judge rice and properly noted that because of a misappropriation this caused harm to my client auto data the jury awarded two million dollars because of the misappropriation and they also awarded a dollar in nominal damages because of the breaches of contract point that we made in our motion for attorney's fees which was under texas law all it's clear that the prevailing party who successfully defends a breach of contract cause of action is entitled to attorney's fees and contract i don't believe our motion for attorneys fees said that i know that we didn't explicitly say that we thought we were entitled to attorneys fees for successfully defending the ninety seven agreement and that  sata claimed right so what and then underneath it we say under these claims versus out asserted that because of that reverse engineering the ninety seven confidentiality agreement was breached fact that there have to be the relief sought have we solved in some material alteration in the related legal relationship with the part holders and one dollar and nominal damages to that one dollar by itself i would say is probably well i may may be sufficient folks that texas law doesn't say whether dollars enough or not that's what you agreed the standard is that the actual relief would materially alter the relationship between  parties yes that is for another way i would say it is the party would have to change something meaningful related for example in the k b home case the k p home party received zero damages with the dollar by itself did not but the dollar was significant in the fact that it established that these two contracts were breached and because of the breach it was the confidentiality provisions that were breached that resulted in the trade from the jury we also obtained all the other relief that we asked for from the jury though not directly related to the contract with regard to the contract that directly resulted in obtaining two million dollars i obligations with regard to confidentiality obligations but the parties are not actively involved into contracts at this point there additional arguments beyond the prevailing party standard that were in play that the court improperly no work and i believe is as the questions indicate and as the briefing below indicates as well the district court reasonably construed the arguments that author david was making as being limited to arguments that they were the prevailing party under their own breach of contract claim and then analyze the claim their claim as such and we don't believe so it seems to me though that your friends argument then them a prevailing party the problem with that argument is they're mixing and matching causes of action and in particular here the type of recovery they had was a discordant remedy it was a it was we're covering the profits that we made on a contract and that kind of relief is not available under breach of contract claim under texas law so the theory that the two billion dollars wouldn't have been recoverable under contract anyway and so they can't really claim that that's effectively a br contract damages awarded materially alter the relationship of the party such as such that would make them the prevailing party i think they can't mix and match cause of action in that way is that an argument that they made to the raising the contractual fee there are two separate contracts and they are raising the the attorneys feel ward to the prevailing party and one contract and the party in breach in the other contract so they are making that argument the problem with the first part of the argument was that they didn't make it below the second problem which is that they argue that the district court in correctly interpreted texas law under a prevailing party standard and that in fact that they contend that the  correctly analyzed under texas law one dollar award a nominal ward would in fact serve to make someone the prevailing party even though it's undisputed that under texas law a zero dollar award despite a liability texas supreme court case on all fours but the court did analyze the cases that were very close and also pointed to a number of appellate decisions and under texas law that came out squarely in our favor on the question of whether a nominal award sort of puts you in a different position than someone with a liability when but a zero damages award and we don't believe there's any anything that the district court did wrong in that analysis basically we think you've got it right and we don't believe all the data has made any substantive argu that the district court legal analysis of or the case law was was incorrect question focuses on what does someone have to do under a trade secret misappropriation to recover the profits from the party that misappropriated trade secrets and the key case circuit case that makes it clear in our view that a plaintiffs must distinguish revenue that is derived from the misappropriation of trade secrets from revenue or profit that the that the defendant may have gotten from other sources and i think that  familiar one in the patent context where we look to to decide what is the what is the value of a given piece of functionality within a broader suite of products and i think the patent law has addressed this issue repeatedly and texas courts actually do look to pa instructions were incorrect what we are saying though is that there was no substantial evidence that the entirety one hundred percent of the profits that were sought a day on three different contracts were entirely attributable to the two very specific trade secrets that out of date alleged were used as part of the products and services sold of those from wasn't wasn't there evidence that they simply would not have gotten the contracts had these particular trade purchases what was important to toyota and making the decision to purchase these contracts there was no discovery taken from toyota and no evidence presented even from the bara to the side as to how the sales process whether what was or was not important and not only that of the two trade secrets one of them to compare the eight compare algorithm is clearly embodied in one particular product that was sold as part of the toyota package the se vehicle compare products that product of the dozen or so software products that were license was the one and only product that was never actually delivered to toyota it was promised to toyota it would have limits maybe on this i just want to understand what you're saying because i do have some citations to the records that are included in the yellow three for twenty three where your friend is telling us that there was testimony when we come to the demand basis for the demand the testimony if you look at the testimony closely what it is is their testimony saying that back in the ninety's when these contracts were signed compare and configuration as general umbrella technology categories were very important in the marketplace in general it was a very generalized testimony and not only was it generalized to the market in general rather than the specific purchase here it was generalized in that it was addressing the umbrella technology categories comparative figure into which these two specific trade secrets just to give you an example the compare comparison technology of the umbrella of the specific trade secret is a specific set of steps that you can do in order to configure cars to compare them to one another it's a specific algorithm a set of steps actually boils down to three steps and again the the other trade secret is a database schematic basically is a way of organizing automotive data and the thing about it that they contended was a trade secret was the fact that it was organized that the vehicle trim level rather than the vehicle model level of the vehicle model as a sort of higher level of abstraction the secret allegedly was organizing the data at a lower level of abstraction those were the secrets so they fit within those categories but any testimony that the categories were important does not do anything to establish the importance of the trade secrets themselves even if they had had testimony about this particular contractual relationship and what was important there on that with that i mean that the way you just said that can't be right it certainly does something to establish that if if for example in the time within which toyota wanted such a product there was no meaningful alternative or ability to develop it independently so that to provide the much desired functionality the only way they were going to be able to do it was to use the trade secret that would provide that connection i said agree that's correct but there is no evidence that without these trade secrets you could not configure compare  that is in the record in terms of the database schematic there are clearly other ways to organize of the testimony from auto data on the significance of their particular trade secret was it's very simple what it does is it makes it more efficient to translate raw data from an automotive manufacturer and put it in a form that is configurable in other words it makes that process easy that is a far cry that's the claims benefit that's a far cry from saying if you don't do it this way you cannot configuring compare automobiles there is no proof of that and the wrec now i think there's been some confusion in the briefing here on whether or not the entire market value rule from patent law is applicable here i think let me try to see if i can summarize where we are we have been we have been consistent in saying that in there is no law or case under trade secret law that says you don't have to apportion and limits your claims to revenue or profits that's attributable to the trade secret if you can show that the trade secrets were sufficiently important in an overall product that sort of the entire market value rule gives an exception in patent law to the normal requirement that you limit yourself to the value of your specific added functionality there is no law that says that kind of exception that allows you to grab more applied straight scroll down below they made several arguments and cited this court's entire market value rule case law for the proposition that their trade secrets were so important that it was ok for them to claim one hundred percent of our profits on these contracts they on the appeal briefing here they even said no we're not in fact making an argument that the entire market value rule applies and if that's true we don't think there is any basis whatsoever for them to claim one hundred percent of our profits because  they clearly clearly there was more than that to trade secrets that were delivered to toyota and so clearly one hundred percent of our profits cannot be fairly attributed just to the trade secrets damaged model that you believe to be fatally flawed which is what our position has been well if you're coming up and you're trying to drift here in strong testimony from the other side and your position is they're grabbing too much more than what they were in order to appreciate that one would expect that you would identify weird to my tunes and put some sort of figure on it so you did not do that here we did not put a figure on it we certainly extensively explored on cross examination why their claim was far too much in other words for example are we made the point to the jury that if the product that in most directly in body to trade secrets was not even delivered even though it doesn't other software products and bunches of services were delivered clearly that is not a high percentage of the value of the contract you made that argument a cross examination we don't believe we were required to present our own number saying well in fact we think it's all of our profit in the contract now that's an incorrect statement of the law but certainly from the jury standpoint it's easy to see how they could believe that that may have been misled or or under a misimpression that is do you argue beatable to your cause by the resulting from or something yes you are an idiot we're not challenging the jury instructions were simply challenging the sufficiency of the evidence to support a claim that does not in fact isolate the value of the trade secrets within this whole contract bundle and that therefore there is no substantial evidence to support one hundred percent of our profits being handed over to them and i see my red light is on but just just in closing up we think the n g a case makes it clear t reversal of the district court's de mol denial and a rendering of zero damages is an appropriate remedy in this case your honor judge approached you had asked if the texas law was that in order to be a prevailing party there had to be a camera the words used but significant change in the party's positions i certainly think that is a factor in determining whether someone's a prevailing party but there is other case law which for example the robin's case which we cite in our brief which basically says whether a party is a prevailing party is based on success on the merits not the award or denial of of damages and clearly in this case we were successful on the merits and whether or not we just received a nominal damages award of a dollar doesn't make a difference under that case law on the word  that's how i read it that is clearly right but the substantially connected i don't think you can ignore and if you look at the appendix a two four eight four we specifically say that our of the contracts as well as our successful defense and that those claims were substantially overlapped i'd like to turn now to the trade secret damages issue i believe what side is doing is actually trying to change the law on her and g e there's not a lot of precedent on what the burden of proof is for treat sigrid damages but angie  basically set forth the standard being that a plaintiff cannot recover damages without evidence to show that actual profits made by the defendant from the source of revenue gang through misappropriation of trade secrets  attributable to the trade secrets in the issue and that's now it and g e requires a believer side is also trying to impose in far the requirement that we apportion the value of the trade secrets again that i not part of the and g e analysis under m g e the issue there was that the damages expert had only looked at the company's entire revenues and in addition didn't figure out what the source of that revenue related to the misappropriation and then further did not figure out what the profits were from that source here unlike m g r damages expert did  million and the district court knows that the the jury could have recently found that all of those damages all two million were supported by substantial evidence the district court and its board are denying that cites to record testimony and documents we in our brief also cite to several pieces of evidence and testimony that we believe support the  damages theory so we believe that this is too asian is a far cry from the evidence that was in the energy case and that we had clearly shown that the jury was entitled to conclude that the trade secrets were the basis for the core features of the products offered to toilet a and that for size profits on those contracts was entirely attributed to t he trade secrets and so we think our damages expert did have sufficient evidence to find that two million dollars in profits was inappropriate and i just wonder if there's no questions