nonetheless based on a presumption and a contractual stipulation the district court found irreparable harm existed based on a breach of contract for failure to assign our position today is that was an error that was air for two primary reasons in my presentation i would like to highlight to this court that in finding irreparable harm the district court ignored the lack of evidence because there was no factual evidence to support irreparable harm the evidence was contrary the evidence was speculative evidence was fear apprehension or concern further the district court applied the contractual stipulation to boost the apprehension and fear into an elevated state of irreparable harm her in applying irreparable harm the district cork applied the wrong legal standard the wrong legal standard was only finding an actual threat there was no likely finding that the irreparable harm would result in the absence of an injunction my second point to you will be a discussion about the vagueness and over bre the ultimate relief that the district court granted in terms of the facts your honour's the preliminary injunction hearing long and deep on a friday lasting ten hours showed two witnesses from applebee's mr spicer the vice president of engineering and mr cash a car the c e o of rev these two witnesses were able to answer any question showing direct tangible evidence of irreparable harm to the contrary these two witnesses on the record questions from both us and direct questions from judge bennett could only talk about concerns in the market place could only talk about fear or apprehension indeed step oil presented no witness in the preliminary injunction hearing yet it's still saw a preliminary injunction against dr dawson dr jenn dawson and axiom the counter picture if i think just to jump in it'll help you know what i'm thinking is if the actual likely point isn't illegal there and so we're really just reduced to is there a factual basis we'd be reviewing irreparable harm finding for clear air and if you it was a long hearing and cash a car does i'm sure you're going to get to say you know i saw not hearsay i saw a power point that was ours that he'd given to a customer of ours and in my mind you it when you have cashed your stating that and then dawson's on the stand for a long time himself denying the forensics trying to explain the customer base all of which could been discredited and was where do we have clear error to say that the fact finding of irreparable harm is to a customer base loss market whatever what what would be a case that would have his mind clear air i have a lot to say in response to that your hon standard it is de no vote right but i put that aside if i'm not convinced that his remark about actual harm is somehow less than likely substantial harm while your honor under what under the winter standard that the u s supreme court standard overturning the ninth circuit the possibility simple possibility of irreparable harm was insufficient and so the actual threat that the district court conclusory states in its opening paragraph on your upper barm which is only a four sentence paragraph on irreparable harm three pages devoted to the likelihood of success on the merits for sentences simply on conclusory statements of irreparable harm built on the contractual stipulation the court has to apply a day novo review because unless there's a likely finding and there's evidence to support the likely hood of irreparable harm there is no basis on which irreparable harm could be found on an actual threat and the example i bring to your attention is this winter says possibility is not good enough even though the underlying district court had a near certainty that was presented to it in the winter court all buckle ourselves up to drive every day to work is there an actual threat that you will be in a car accident on any given day absolutely is it likely that you will be in a car accident the quantum between actual and likely is completely missing from the district court's opinion and the fact that the likelihood of meeting an accident or dying in a car accident doesn't exist is what propels us to drive every day if we didn't have that likely if the likely fear existed none of us would actually drive in this instance all cash a car says to bring back your point on the factual issue your honor all cash car says i saw a powerpoint but what did you see in the powerpoint was there any discussion of any business aspect of axiom that overlap with the deal was there any discussion of a patent application in the axioms wheel house that was in reveals will house dr dawson because dawson's testimony about when my sister was sufficiently knowledgeable to file the patent and each it seemed to me that he heard from dawson a great deal and roads his credibility more and more so it's hard to rely on dawson just to say there wasn't uprooting of a customer and then i look at some of the cases they cite especially the trans perfect translations one it looked like the possibility that this is cancel my creative coaching customers can be irreparable harm your honor i would guide you differently because the district court even in their proposed order was had an attached exhibit a that was under seal for customers that they were going to build but the district court rejected all of that a customer finding meaning non contact with an existing customer is not what dr dawson was being charged with for breach of contract all he was being charged with breach of contract for an idea in his head that did not devolve down onto a piece of paper that became reveals ownership because it was its personal property and that's really what this case will sound to this case is simply who owns a patent application because an idea popped into dr dawson's head this case is not your honor as i think you might be considering it as a trade secret case where a customer list is wrong i don't agree with that proposition your honor not because the point is if the customer list did not have a trade secret moniker on it but was confidential there is no evidence that dr dawson was actually using that for the purposes of the patent applications that's the point the axiom patent applications and the customers are simply not in play as a basis for finding irreparable harm on the point of what we presented the district court the cash card testimony the stat oil the simmons testimony and the spicer testimony again that judge bennett directly questioned them on simply no witness for stadol real was able to populate evidence before judge bennett as to what was it that dr dawson or axiom was doing with respect to the patent applications not customer list because that was totally rejected in the district court's finding what was he doing with the patent applications that reveal your contending is causing harm in the marketplace there was nothing presented when i asked miss simmons directly in deposition which is part of the record what confidential information of reveal or status of this in the patent applications i don't know can't tell you judge bennett to mr spicer give me one instance one instance in the marketplace my concern or judge bennett cut some off as not concerned i want to know an instance he cannot give it to him and all cash card does is talk about this simple notion of my concern or that he's using or claiming in the marketplace that a patent application belongs to him related to image frak your honor image frakt is not in play before this court the only thing in play is these three patent applications that axiom was that axiom had in its name the second point i want to build on your honor outside of this apprehension and fear speculative evidence that the apple these witnesses testify to is what is it exactly that the district court wrote the district court wrote that it found an actual threat but then the second interestingly enough becomes an if then sentence and under the roper decision of the federal circuit that we cited to the court that if then proposition is simply again a mask around fear or apprehension what judge bennett writes is plaintiffs have made out a prime official case that dr dawson is liable on their breach of contract claim that's the second sentence going back to the likelihood of success on the merits as such meaning he's tying the likelihood of success on the merits to his finding which is now going to come on irreparable harm as such plaintiffs would suffer irreparable harm if intellectual property rights fully belonging to played to fs as it was developed by dr dawson while subject to contract or duties above was used by a competitor offering a competing product i asked not quite rhetorical why does that sentence have an absence in it in identifying axiom as the competitor and identifying the patent applications as a competing product judge didn't could not meet that connection because apple lees could not your honor if this is not a patent infringement case this is a case about patent application ownership why is your record silent on what the patent applications contain why did these apple e's not present as they might in a markman hearing detailed evidence to judge bennett this is the jim dawson patent application well i think this one sentence looks similar to the pros and one of these patents or applications that we pulled back your honor that is not the basis on which irreparable harm can be found there is no discussion in the record of what any of these patents do and what reveal did with respect to these patents which is what i was trying to describe the differences which then in your brief you say could have been a bouncy house but it dawso discredited in trying to say there dissimilar an inference the judge could draw is that they are and you keep avoiding the fact that dawson tested in all his explanations even the forensic overlap an amended data were credited i think that heavily affected the district judges assessment of like likelihood of harm your honor i would answer that in two ways one i was putting dr dawson on the stand and at that point it was late in the evening and i didn't know what judge bennett's questions were at that point i turned dr dawson over to judge bennett to ask whatever it is that judge bennett had on his mind forty five minutes later all judge bennett got not all substantially what he got was under but a testimony that rate cycling is not part of reveal zach griffin patton was never part of reveals wheel house and the gym dawson patent came four months before reveal good afternoon your honour's william hahn and sherman sterling let's just start with the with the question that mr man drew posed and i wrote it down like this what was mr dawson doing with the patent applications that was causing harm in the market if you're his words not mine well dr johnson was doing a number of things that were causing harm in the market your honour's first he used one of the secret patent applications the gen dos and patent application to secure equity funding for a competitor that would go out and destroy reveals to first mover advantage with its stolen improvements to its technologies second he was going to customers as mr cash car testified with reveals own marketing materials and validation studies setting forth similar services as to what reveal offered so related to the patent applications mr cash card testified that they were similar services in mr dawson himself admitted in testimony to judge bennett that he was contacting customers reveal customers about what he was doing at axiom this preliminary injunction hearing your honour's is about a breach of dr dawson's contractual obligations to keep confidential disclose and assign to reveal all discoveries improvements and ideas he made as a reveals c t o and correspondingly his use of those stolen improvements to build a competitor that would destroy reveals first mover advantage in the nascent nice fracture mapping market the irreparable harm that is the legal issue before you hear therefore has to do with dr dawson's theft and his use of that theft whether appellants should be free to compete against and destroy reveals first mover advantage with reveals own stolen improvements nothing in the law and nothing in the record shows an abuse of discretion in the district court concluding that this on is a reparable appellants attempts to reweigh the evidence with red herrings cannot divert this court from what the district court found by in its own words overwhelming evidence first the dentist what's an example of a red herring a red herring would be for example that perhaps dr dawson was dealing in gardening equipment and balancing houses while he was out revealed as opposed to the breaking the ground breaking fracture mapping technology that would be one red herring another red herring for example would be its characterization of the preliminary injunction order is an industry wide non compete which appellants then go to undermine on page twenty eight of their reply brief where they call it an extreme interpretation of the preliminary injunction order there was overwhelming evidence not only that dr dawson breaches contractual obligations with respect to stealing reveals improvements but then was using them to build a competitor specifically the district court found and you pointed and dennis williams is testimony mehta data obtained from dr dawson's computer showing that he accessed confidential reveal files stole them and years reveals improvements in secret patent applications filed in the names of his wife sister and friend second dr dos and then used as i said judge method one of those patent applications to obtain equity funding for a competitor designed to usurp reveals market exclusivity third and again as mr he also promised his sister indemnity to assign her patent application to reveal as well as thousands of dollars to do so third as mr cash car saw dr dawson was using reveals marketing materials and validation studies to pitch axiom to reveal customers indeed dr dawson and self confirmed that axioms goal is to eclipse revealed in two separate filings if you look at paragraph sixteen of the answer they file they say that one of the purported flaws of image track is that it doesn't do real time monitoring a fracture pressures in the very same document paragraph sixty five they say that the gift of axiom to the market is precisely that it will do this real time monitoring  when you start out by saying the finding would be that destroyed the first mover advantage yes it is their case though that that that gets my brain a little confused i would you know i'd love to see if there were any finding that there's less market share for this customer has discuss the first mover advantage and as the context as the concept of being the originator of the brand of being the originator the ability to direct the trajectory of the markets innovations the customer loyalty that can come from going first dr dawson himself moreover it's undisputed that reveal has this dr dawson himself said that reveal has the recipe for coke and then perhaps most tellingly if the competitor if the if a customer or competitor knew about reveals ideas and discoveries the damage to reveals competitive position would be quote impossible to put back that is a yes it is record on a as the recipe for coke he reveals the recipe for coke that's record site thirty one fifty eight and in the very same email he says it would be impossible to put back that is the very definition of a rebel harm your honour's and that's like this he agreed to which couldn't alone and but the law is clear it can be a factor is that a fair statement of law can and i think it's notable your honor the one page thirty seven of the bri of appellants opening brief they mis characterize misstate but the district court said with respect to the use of that contractual stipulation they block quote the portion discussing the repertoire harm and they notably omit the word further from the blockquote which is very clear that that is the case that is how the district judge was using it moreover as the district court found that reveal would be significantly harmed if axiom destroys its market exclusivity in a market that is the district court set reveal soley occupied indeed dr dawson as i said himself he acknowledged this most tellingly by saying that the loss would be impossible to put back and that is the very definition of a rep of a harm and th appellants asking this court to second guess this mountain of evidence this overwhelming evidence is the district court called it simply by regurgitating the same incredible arguments they set forth below they offer the testimony of the overwhelming did that come from the substantial likelihood portion of the order is that in the irreparable harm finding or you're seeing that to integrate what the district court said your honors that dr dawson said that none of the intellectual property in the orders was created by him and that statement is contradicted by overwhelming circumstantial evidence ok but why would that prove irreparable harm that couldn't be monetized you know well who also your honor this court's cases have used the sense the same evidence it's in support of substantial like  as you pointed out in the questioning of accounts counsel your honor that the testimony of dr dawson was contradicted by overwhelming evidence they wave away the forensic metadata analysis essentially by saying anyone could be matt dawson they say with a connors someone with no experience as an inventor let alone in the fracking space someone who never saw her patent application before it was filed and does as dr dawson said at the hearing lighting designs for buildings nevertheless file as appellants answer characterizes axioms and the next big development in the fracking industry given importance a credible arguments frankly the district court would have abused its discretion if it ignored that mountain of evidence in contradiction to those revealed for all of the reasons i just said but to the extent that some of the information that we didn't say a lot about rate cycling and how we're not in that space what dr dawson breached his disclosure and assignment obligations we d doing it because we didn't know but if you look at the ip roadmap that dr dawson prepared that's a record site thirty one fifty six and then you also look at the business development plans that he put together for reveal at record sites thirty one seventy and seventy one you show that first of all reveal is desiring a brand is the defacto standard for fracture mapping they list out a number of potential patents and trade secrets that could be filed by reveal that bear upon all of the information that we know about the secret patent applications but more fundamentally this is not a palace council interestingly asked for a marking here or suggested the propriety of a marking hearing this is not a pat infringement case dr dawson breached his confidentiality obligations stole our improvements and built a competitor designed to destroy our first mover advantage this is not a competitor arguably infringing against a product we have this is theft he stole our improvements  careful to say this is not a trade secret case do you agree with i agree with you it's not a trade secret case although i would think that the representation from appellants that it's not a trade secret case is interesting because throughout this case they have said that  this is all about trade secrets in fact they conflate the idea that there we need to even talk about breach of contract at all because we didn't show a trade secret misappropriation that was at record site eleven thirty two paragraph six that was in the district court so i secrets he stole our ideas discoveries and improvements as articulated in the confidentiality allegations those were not trade secrets your honor we don't need to make a representation about what is and what is not a trade secret to prevail in our breach of contract  the confidentiality obligations do not reference trade secrets they reference ideas discoveries and improvements what the trade secrets are whether they are that is that is for another day your honor if i could turn briefly  someone's hard earned market exclusivity is not a reparable harm or the disclosure of confidential information and the potential loss of customers is not irreparable harm so we are left to resort as you pointed out judge a consent to resort to whether or not the district court committed clear error in weighing the evidence and notably the arguments that were set forth by appellants he should credit this testimony over that testimony this testimony was more insightful the lack of testimony here was more of a that is all reassessing credibility that is all clear ever standard of review using clear a standard review of a subset of the problems for abuse of discretion i think that that's i think that's right your honor abuse of discretion is the the ultimate leeway do you find there is with abuse of discretion when it's cabin within to know were the legal pine legal issues and clear factual time i think that there is considerable leeway when as this court pointed out in cardone when there's been an individualized assessment of whether confidential information was disclosed or likely to be disclosed then there is plenty of room for abuse of discretion and there was that here appellants counsel characterized what happened below hearing with six months after the fact and with follow on from marion junction right you all come agreeing to extinction of the bureau and all of this discovery was taken what was the driving force behind that there was as i understand your honor there was an agreement between trial yes and we and we speak about that to some extent in our brief discussing the differences between between the t r o and the p r i to a certain extent i think that the p r i is actually narrower than that then the t r o in the sense that the language about confidential information in the p r i the first two relating to or underlying image frak it's arguably broader than the euro in the t r o there's also a restraint on contacting customers that restrain is not present in the there's dawson testified as to what the words in the preliminary injunction that he considers to be vague mean we go through that testimony at some length of pages forty six to fifty of our brief and the injunction itself as this court suggested with respect to the confidentiality provisions so we do not see any that and moreover parents make a argument in their reply brief about this referencing and other document they really don't mention anything about that in their opening brief except for a throwaway sentence on page fifty one that doesn't actually apply law to fact but if you do want to consider the argument there are really two responses to it one is a search sort of practical point if you're going to enjoin someone from prosecuting certain patent applications why wouldn't you mention the patent applications by serial number that would be like in joining someone from using a particular bank account and not specifying the bank account and that's all the reference to the other document happens here but also i think there's a helpful contrast to this court and gulf shrimp if you look at the foot footnote ten in that case has that injunction laid out that that injunction required you to look to the statute for definition of interstate commerce for child labor look at regulations for definitions of wages we have nothing like that here and there are the less this court found that that injunction was not paid for purposes of false or violated the other document reference and will sixty five ultimately your honour's as this court said in texas versus united states the fundamental principle of preliminary injunction is that they are of no help they are pointless if you have to sit around and wait until you are actually harmed before you can get injunctive relief revealed should not have to sit around and wait until its first mover advantage is destroyed by its own stolen improvements by a court counsel your honour's all you heard an applebee's presentation were buzzwords first mover advantage you asked the pointed question what is it about these patent applications that reveal was doing they can't tell you all they say is that we didn't know we don't know what was in his head until we conducted discovery judge bar still you asked the longest hero in mankind three hundred thousand documents produced by us ten depositions they have nothing they can nots answer the simple question what is it in the annalisa conner's pot and application not you all they can do is couple likelihood of success on the merits with irreparable harm all undergirded by a contractual stipulation in the white versus carl this court as authored by judge smith said you cannot take a strong likelihood of success on the merits and build an irreparable harm case on that you have to show separately and convincingly as written in white versus carlucci there is no separate and there is no convincing proof all judge bennett does at apple these request is say built on likelihood of success on breach i find irreparable harm because if a competitor were offering competing products not dr dawson or axiom and then further the contractual stipulation of irreparable harm i pointed you to in our brief the soliloquy between judge bennett and mr fernandez counsel for apple lees well in that questioning judge bennett said i've listened to the testimony i haven't heard of anything in the marketplace that is taking place that would support irreparable harm what does mr fernandez concede at that point he concedes we've got to go back to the contractual duties of irreparable harm he tries to build his answer on the concerns with the district court's order as it's written first the total application of patents and technology in the overlap that that is embedded as written in the order prevents dr dawson from taking any position in the fracking industry because you your honour's do not know what is in the patent applications dr dawson doesn't know what's in the patent applications he may be the smartest guy in the room but that doesn't mean that the ordinary person who is looking at some parts a c or each of the district court's findings can say this is what i as an ordinary person know can or can't be done by dr dawson in the fracking industry the reliance and the embedding of the patent applications is impermissible under rule sixty five opinion that we've cited from this court this court looks to a ninth circuit opinion thomas first as county of los angeles in both chapter and thomas look at what are the rules and procedures of the sheriff of the county of los angeles what are the rules and procedures of the organization under shepler that's insufficient that dr dawson may know as a sheriff in the county of los angeles what the policies are with respect to the issues and that opinion is not the barometer on which rule sixty five d would operate if that were the case then we would have this giant yoyo of interpretation under a due process standard which is what sixty five d is trying to accomplish sorry on my time if that's all right you can finish your sentence only ok under the due process standard of rule sixty five b if dr docks and has to be held in contempt of violations he must know as an ordinary person must know what was he enjoying from doing i think you're on a