court my name is pat brook auser with my colleague matt munro we represent the plaintiff the pallant in this case this is a case where the individual defendant worked for a company called crop insurers they being able to access it from mobile devices they took that method in process when they left and approximately eight weeks later they filed patent applications using that method in process that they worked on a crop ventures that were filed just weeks after the individual defendants left crop insurers by could turn to our st theory the st claim that i'd like to talk about is the implied contract claim that is based on what's called the hired to invent doctrine the hired to invent doctrine doesn't require i can't tell i couldn't get out of your briefs and you can tell me where to look in the record for evidence that supports the claim that any defendant especially  even if you're hired for general service if you're given the specific tasks and his work as it many startup migrated over a number of things but it definitely included i read and i think you're overstating it but even if you're not where is this evolution where do i find it and well it's directions from management or whatever well so this the revision bay that i cited in the brief that was right after he started back as an employee so right away he's working on solving what was a key problem for the company which is how do you get this information off the implements and his specific task was to do that and his specific method was to use the object in the brief that ties into exactly what they ended up patenting and that july th e mail talks about mapping the parameters in controls from a virtual terminal that same language is used in the patent applications that are filed just a few weeks afterwards but the similarity between those two still doesn't answer the question as to whether he was hired to bend as it now you focus a lot on that similarity but i'm not sure i understand the link  by a high tech company was caught by your by your argument this morning hired to invent whatever he or she comes up with well your honor it would depend upon what they do if you were hired to work on g mail and you do something he says this method is known to iran the scene and in a crucial admission from the defendants they have said that that july th e mail is now says about to leave the company they say that meant that crop ventures should have patented that that method and that's exactly what they ended up doing a few weeks later is it tetchy how do you say that last night i got it got it right now he was hired as an executive and to raise capital right he was so and he's not on the email i'm looking at the e mail she got no case against him ah well that was that was forwarded to him but it was after he had left the us against him roger is is th his role in the patent application was rather limited the defendant say what he got their explanation and after after i put answer your question i'd like the turn of the question of did the invention happen afterwards but the the defendant's explanation for what teddy did was he had an increased understanding of what's called common land units which is a geographic descriptor and that's that's tied to legal boundaries and they say he had an increased understanding you responded with an article about common land units the geographic location and that in that e mail he said goldmine there's no explanation from the defendants about why he was doing that that had nothing to do with raising money that ties directly to their explanation for what he did in the patent application because that was as i said an increased understanding implied in fact contract says both sides agree to it it says that  well i think i think if you say now that the defendant said net that this method they say you know this was saying should have been done by by crop ventures and ted g if it's in response to requests from something specific and he did it right when he had an initially was hired to do work on software for the device to take information off the off the implement he then shifted when he came back as an employee  it we site a brief of this implement communication and control right away when he comes back to work as a as an employee that's what he's focusing on because that was the problem how do you get didn't mean to your honor well what was that as an employee i thought that i thought your theory or the fight here is about once the once the information is off the implement and into the tractor now you've got to get it to the ip correct that what he was initially doing as it was done by ship load into the tractor or implement to take the information off their problem was how to how to where to the clout but given the specific task of trying to understand and de code and information that's what the object pool method that he that he devised is designed to do to help you decode they called it in the pat th talks about mapping the parameters that's what they ended up patting if i could turn briefly to the defendant's argument that no this was invented afterwards meant during the eight weeks after they left that's when they came up with the invention there is no evidence to support that they have two arguments both of which relate to who i hadn't as it's undisputed were already well known in the industry number one they say that when they were mapping the geographic location they would not limit themselves to liquid boundaries they could have other information about grady white's deposition if you read the words of it doesn't it look like they did it after they left well what he's talking about not he specifically did not look to see whether what they had done was based on what they had done a crop ventures just tell you testified that he specifically did not look into that that's what he worked on when he came back as an employee but the two things they say that they invented its own disputed both of them were common knowledge in the industry one is that you don't restrict yourself to legal boundaries the nd is when you're plotting the path of equipment you'd like to know when the equipment isn't running that's it that's all they say they invented they didn't have much time to do it it was only eight weeks after they left but it's undisputed that those were common knowledge so there is no evidence that the re afterward if i could turn to the duty of loyalty even if those were common knowledge is there anything to the idea that incorporating them into their bigger picture plan was created or appreciate the question because what it was just a part of what they call the farming operation land segment and that was what he'd go locke was working on a crop ventures which was when you get this data and when you understand it sort of like with the g p s what you'd like to do is figure out at what location on your farm were you doing particular information that was the work that they were doing at crop mention and they added on these common commonly known things which are when you're looking at the patient don't restrict yourself to little boundaries and they're looking at where the equipment goes sure you can tell where it worked and where it didn't or that's that's all they were adding they weren't adding anything that was invented so there is no it was in our opening brief ron or it's where we talk about task controller technology and it had never been done that in that manner i thought of this widely known in the industry this is the jefferson deposition benjamin jefferson the trawler and virtual technology terminal technology is widely known and i think i'm quoting widely known in the industry and he actually the virtual terminal is and and a task controller they're defined in standard right that the different thing here was to try and use that as a way to understand the information and put it in the cloud and deposition he said that was new to him doing that he hadn't seen before and that's what the tat the tra trade secrets act that way that the court is interpreted that don't know if you look at the st express case which is really one of the leading cases and that's what i was quoting from what they do then it talk about home pride which is another case and they to try and use the task controller in virtual terminal to decode the information in a multi level system that was not known in jefferson benjamin jefferson says that in his deposition that he didn't know about that before you just this very him big you asli drafted statute probably in the middle of the light by some committee staffers and apply it to trump the brassica trade secret law and give you a cause of action in the ri i think your honor may please the court when a value weighting the handful of claims that we have left here too consistent themes emerge st of all there are several independent legal bases on each one of the claims that is left that justify a fir and secondly every one of the issues that's involved in this case could have been addressed as judge logan indicated through an express contract and instead here we're dealing with implied causes of action and an attempt to expand tort liability beyond what has been recognized in the case law and that's especially apparent as the questioning indicated with respect to the implied contract claimed as hired to invent a doctrine and the issue that we've got here is as judge logan pointed out there isn't evidence in the record to establish that any of these three individuals were hired to invent anything specific and the specificity of the task that is delegated is the appropriate test a as several of the authorities indicate that there is an alternative prong or directed to right house correct hired or directed to that's correct your honor they're very weak on the hired how are they in the directed i well i agree i agree that there are sort of you can get to it somebody can be hired to invent something specific or they can be generally hired and then provided directed with a specific task but that's the evidence that's lacking here is well there's no for example work orders there's no draft contract language there's no testimony of conversations where employees were directed to do anything specific whatsoever so even if we go down that nd path what the district court found appropriately is that there's simply no evidence in the record to support that and could you infer a direction from based on what in fact the employee did i don't believe so your honor and the reason i say that is because i think then that turns any employment relationship certainly in the technology fear into an implied contract relationship because then it turns into a sort of an ex post test right we look at what the employee ended up doing and then say well he had to be specifically directed to do that because this is an implied cause of action and as an exception to the doctor and the dishes be handled through express contracts otherwise i don't think that's appropriate and i don't think that there's any clerk that's taken that path with sort of example they're out there for direction so i think  probably provides the most extensive discussion of the their general electric came to the company and said we want you to create a a turbine for an engine that has a single leading edge on it was direct it was hired as the chief engineer for that project and was specifically directed to create that product are there any other do you know of any other cases they give other examples of the kind of direction that maybe is less formal i would the only case that i can remember the standard auto case dealt with a but it was a similar sort of a similar formal direction to that where it was like an engineering task to create a civic part and so so frankly i'd this isn't a doctrine that specifically footnote twenty five dollars the district court goes through an analysis of each one of these individuals and indicates that they're simply not evidence in the record to establish that they were hired to invent anything at all even if we pass that threshold and say that they you know that there is an implied contract in some respect we then have to look at what the invention actually is and why they now contest that these tune on appeal anyway that these two components were added to and these are what are referred to and i understand the briefing there's a lot of technicalities in the briefing this is what is referred to phones and travel path came about after the three individuals left crop ventures so it was undisputed before the district court and now it's disputed on appeal it's too late to do so now those were concepts that were added after the fact  and as judge burton correctly pointed out the light deposition as well as there's an audio tape recording of the discussions that are happening when this work is taking place to determine what concepts are going to be added to any work that had been previously done and i want to briefly address this argument now that's made on appeal that well these concepts aren't novel or they're not publicly or publicly available st of all that's not true at all and we can argue to we're blue in the face about whether these are novel ideas but that's that's a determination to be made in the course of patent litigation not for purposes of an of an implied contract action where the the question is whether what they're seeking title to or whether that is what took place at the predecessor company or whether it is something different it has nothing to do with whether it's a novel or new it's whether it's the same thing that they worked on or it's something different and they can't cite you district court that it is different than what was worked on at the original company and in fact the skycam versus bennett case which we discussed extensively in the briefing expressly rejects this theory there are there are several claims and theories as the court is evaluating the opinion that have been waived on appeal and have now been to final judgment but even with respect to this one trade secret the court's principle holding the district court principle holding here is that these were nothing more this trade secret was nothing more than i an idea or a strategy and was not concrete or particularized enough and as judge logan pointed out in the in the opening brief definite trade secret is not defined at all oh that we get is a citation to two pages of the expert report and that's what the trade secret is so not only is it undefined before the district court it's undefined before this court until we get to the reply brief and in the reply brief be opening sentence of that section has a one sentence explanation i think of what they believe the trade secret is now and then there's five words of analysis you know  about the next sentence disclosed and defend its patent documents well and that i'll get to the defend trade secrets act issue as well your honor but but it was not disclosed in the patent documents because it was st of all it's not a trade secret to begin with and secondly the record demonstrated that it was publicly available before this concept was even used in the patent documents to begin with is that dispositive then are you talking about the disclosure of that so i think that weren't particular efforts to keep this confidential i agree with that your honor is that dispositive of that nebraska claim i believe it is yes that's if that's if that's correct i mean if you agree with our position certainly if you agree with our position that they didn't take efforts to keep th information confidential i do think that's dispositive of the claim and i think the case law bears that out and there's two specific ways that they warrant that they didn't keep this information confidential the st is the disclosure that's talked about extensively in the briefing to the rd party company called just tack and they took this document the document that they keep talking about revision be they took this to that rd party they gave them this document in while they were working with them without any confidentiality agreement in place without any non disclosure agreement in place gave them this document and started working with them their argument now is well there's one employee that testified that he believed that was confidential he said jefferson that is going and st of all that's the wrong analysis because it doesn't matter what the what the thirty one dollars individual in that rd party thought of it the test is whether they took reasonable steps to protect this trade secret and the evidence establishes that they did not but secondly it's wrong on the factual record because what the record indicates is that after after farmers edge refused to pay disk tech for their services they took this a document used it to made a competing product and went to market with that product there is the record is replete with more and more evidence of how there were not steps taken at this company to take to protect their any information that they deem to be confidential or otherwise prevent employees from accessing information that they should not and the district court chronicled this in the agenda page forty seven and goes through this full analysis of of the steps that the crop ventures company failed to take to protect any trade secrets are available are publicly available and in fact you know i'm surprised that we're a little bit that we have the argument here today that these are public that these are not publicly available and that these are proprietary and secret when the position that they've taken as the court's aware there's pending litigation on this very on the patent application they're seeking here right now in canada and the position that they've taken there is that all of this is publicly available so i don't understand that inconsistency in the positions that they're tout taking with two separate federal courts but in any event the point for this court on review of this district court record is that there is sufficient evidence in the record to establish that this information is publicly available and his judgment points out correctly so the st express case in several cases and that line of authority established that nebraska law is unique on this point if the trade secret is quote ascertainable at through through publicly available means then there's no trade secret or the only state that added that to the uniform act did most states just passed the uniform act like they did i think most states did i don't know the numbers  but obviously they are unique in that they did not but i don't know the numbers of states that they did and did not briefly as i mentioned judge kelly with respect to the defend trade secrets act claim i think judge logan is right that is never been applied in this circumstance but i do think that the disk of the alleged disclosure of the trade secret in a patent application is dispositive of the trade secrets  as a matter of statutory interpretation so the question here of course is because that disclosure not only happened but was published by the patent office and the publication is the key because the publication of course makes it public to the whole world so the to the extent there is a trade secret there's no longer a trade secret at that point with respect to the defend trade secrets act climb and that's the versus google case that we filed a twenty a j letter on last friday case broader to the idea that there can be a theory of continued use that can give rise to a d t s a claim we don't we don't dispute that in some circumstances the continued use theory at least some courts have recognized it but none none have done so where the disclosure is in a public patent application in that patent application is published prior to the enactment of the d t s say so that claim fails as i think judge loken is correct that the express contract and duty of loyalty claims are largely resolvable on the basis of the of the brief so i'll just mention a couple of quick points with respect to the express contract claim i think that the that the timeline as well as the plain language of the agreement defeats any argument that there could be an express contract here as judge loken indicated he was a ridge mr nuss was originally hired as an everyone admits that this independent contractor relationship to create a prototype for a piece of hardware was completed well it is interesting that paragraph three the delivery of materials upon termination provides as requested by the company from time to time and upon the terminations of contractors advisory relationship and or employment with the company yes  two to the later employment i think i think in response i think the problem with that is the gap between the two i agree and that's and that's where i was going with that that goes way beyond what's brief well i understand i understand that your honor but it is undisputed that the independent contractor relationship ends and then there's a two month period where he's employed elsewhere and then he's really engaged as an employee signs an offer letter and there is no there is no reference back to that agreement there is no specific language in that offer letter that if he had morphed from a contractor i think it's a definitely a closer question absolutely although i will say this if you look at section six b of that contract as well that there's no right to continued employment and also says that the government i mean i'm sorry that the contract does not quote otherwise define the terms of contractor's employment with the company so i think there's at the very least there's ambiguity there right because as an employee reading the plain language of that agreement i think it's certainly a fair argument that he's under the impression that if i become an employee this got this document doesn't govern the terms of my employment because the express language says that but i do think the principle basis here right as judge loken recognized is that there's a gap it didn't just more from an independent contractor relationship to employment it's two totally separate transactions and in any event even if there were an express contract in this light in this case the terms of that provision that sought to be enforced here the confidentiality of agreement are an unforce nebraska law and the and farmers edge is has consistently argued throughout this case this court should follow one of its prior decisions about you waiting missouri law but again that can't be the test here because both or decision and more specifically the broccoli decision from the nebraska supreme court illustrate that it's not just restrictive covenants that are evaluated for whether they're anti competitive or unfair it is it's much broader than that in fact in broccoli the it was in a it was in a benefit terminate benefits provision a benefits contract but the material that was it issue was confidential information and so the nebraska supreme court has been willing to applied as doctrine much more broadly than the missouri supreme court has and so even in the event where we have reduced if we do have an express contract on any of this then there tell everybody what has gone on i absolutely agree with that your honor and the problem that the district court found with it here is that the definition of confidential information began with everything not generally known to the public well as engineers in this business everything they do is not generally known to the public the vast majority of what they do is not known to the public and so that the clause there was too broad but yes they could of course they could have a narrowly tailored one that would achieve that end what all of this illustrates is that all of this could have been avoided through express contracts they chose not to do so and there's no basis to expand these implied causes of action in the tort theories here beyond what any court has recognized the district court rightly rejected that in this court should out of her of oh yes your st if i could address the issue of whether the whether the invention was done afterwards was challenged in the district court absolutely it was a defendant twenty four the district court talks about