secrets but when they asked the second question was are misappropriation on the for which they found they were secret they did not find as a preparation i found they were not used or that they were not wrongly take or the question on the jury charge was misappropriation  was if you answered no to a question to identify which alleged trade secrets are in fact secret i'm sorry the one did raytheon prove by a preponderance of evidence that indigo misappropriated one or more of the secrets that was the question on the charge the jury was asked do you find any secret they found yes but that for the next question was do you find misappropriation misappropriation undercut to say the relevant law is use or disclosure trade secret number fourteen here is the definition of it absolutely right and i'm pleased that was on that that was the the birth of indigo they did not object to the definition or the description there were i'm sorry for the point yes  as practiced by raytheon and indigo was not in the public domain and was not different by your changing the definition of the trade secret the question is is a cascading be the general concept and yes it was that was the definition it was given that was the description that was given to the jury by both witnesses from raytheon and indigo that is the definition of trade secret fourteen and again testimony in anywhere in the record where there was a more specific conception of trade secret number fourteen other then the basic concept of doing this sequence will vacuum day is that what you're telling me you know you're on the testimony at trial was the trade secret was a series of cascading or sequential vacuum breaks that were as practiced was not in the public domain was not known and that the recipes were product dependent you keep seeing as and it seems to me you're changing the definition of the trade secret even as we talk about is that the general witness testified that the cast of a series of cascading bakes is not in the public domain testified that the general concept was not in the public domain could you show me that mr cannot i believe it as i'm sorry your honor when we pull up believe you would agree with me that for trade secret number fourteen the peace part vacuum baked process that there are no public domain documents discussing the concept of a sequential bake as opposed to a final piece part may answer place you're on of that's the most definite and direct citation in the out in the record with another way of looking at this is the question isn't whether you can point to some testimony somewhere in the record that defines the trade secret in a way you like a more relevant question is was there testimony in the record that arguably defines the trade secret in a much narrower way in the way the other side likes that would be reasonable for a reasonable jury to accept as the proper conception of trade secret and if the answer to that is yes then i think we're done i would agree with your honor but there is not there is no citation there is no evidence in the record at all where the definition of trade secret fourteen was more narrowly defined the concept of peace partner vacuum baking with recipes as being product dependent was discussed but never  fourteen given a more specific or narrow definition by any witness or document indigo did not object to the jury charge as drafted indigo did not request an instruction to the jury that provided a more specific definition of trade secret and again was there no misappropriation because there was evidence that this information was trade secret was not used not embodied in their product while you're on at least with respect to trade secret fourteen one of the packaging engineers from indigo also from indigos expert mr dropping come out he admitted they both admitted that indigo practice is a piece part sequential vacuum that given that testimony it was not contradicted with well there is plenty of evidence the record that vacuum baking is well known there was no evidence on record that a sequential vacuum making process is in their expert admitted that the concept of a vacuum piece part of eight is not in the public domain and regardless here i'm sorry we're what i just read from you add ninety five zero six to nine hundred ninety five zero five zero six your honor mr canal admitted that the concept is not in public domain and the jury found that it a secret it was defined on the jury charge as a method and use of sequential vacuum bake that testimony at trial was that the trade secret was the use of sequential vacuum baking it was never define jury found it to be secret based in part of what everyone agreed it was not in the public domain indigo admitted to using the trade secret judgment it was a good that it was no reasonable juror could conclude no misappropriation given the admission that is what the appeal is about is that with the testimony and with the admissions that are uncontroverted no reasonable juror could have concluded no mr perforation once they concluded there was a secret absolutely your honor and one of the shells short so my colleague on the other side talked about our expert mr canal if you look at volume five of the appendix you know page nine seven two seven mr canal has asked about this very concept and explains that it is public record and i'll give you a long starting at page nine he's talking about his time on line nine i'm sorry on line nine he's talking about his prior employment before the relevant period at a company called i c c and says let's talk about that period did you have any experience with a sequential vacuum bake yes absolutely and what was that well we did it all the time we had a piece part happens we had ovens that were used for assembly sub assembly baking and then the final baking was done on the vacuum system while you're actively pumping on the door and then you the exchange goes on and if you look over on the opposing page nine seventy eight line ten so you know it's a piece part baking in final baking i think it is well known the intermediate stuff is just peace part baking of the part that's never been vacant for so to me it's a distinction without a difference trade secret as properly understood and as argued to the jury was not used was not acquired the specific times and temperatures the specifics of the process were independently developed and i can point you to that that has not required was independent developed this is what i'm trying to understand was this too and was not acquired through time on the i understand it was not acquired and then it it wasn't independently developed in the sense of they ended up at the same place through independent development the pro were actually dramatically different and again mr canal it's testimony this is at nine seven three zero which must be accepted as true he talks about the dramatic differences between the two processes in terms of time temperature pressure and that evidence again i think by itself provided a basis for a reasonable jury to conclude that there was no acquisition because they could look at the dramatic differences between the processes and make that reasonable inference and of course on this standard of review that's the question what could a reasonable jury do this was a seventeen day trial there were more than thirty witnesses there were thousands of pages of documents as the court knows from the volume of the joint appendix the jury was quite attentive the jury said some of these things were trade secrets most of them weren't but then he said none of them were misappropriated to overturn that verdict for a plaintiff an unsuccessful plaintiff to overturn that verdict it has to show that the evidence in its favor was so overwhelming that any reasonable jury would have been compelled to accept it and even crediting all the evidence on the other side even giving fleer the benefit of all available inference is what you know so i don't think you said a few moments ago that  per there was no there was no jury charge in terms of care is the definition of the trade secret and i think that's key here because as the court pointed out it's plaintiff's it's that owner of the putative trade secret that has the obligation to define it under california law that's their obligation because otherwise you can't put on a defense if you don't know what's being claimed so you're saying what happened here was a trial where there was a lot of talk about the trade secret and then both sides have their different competing understandings of the  secret was and it was left to the jury to try to draw from the competing stories what was the trend and then figure out whether that was misappropriated for what you are that's i think one can certainly get that impression now based on how great the on his belief the case at that jury trial itself we think it quite clear that the trade secret fourteen that was claimed was the specific recipes the times the temperatures in the closing argument of the jury  systems case from the ninth circuit that we cite in our brief holds that when the plaintiff has failed to discharge its california law duty to find a trade secret with specificity no judgment can be entered on misappropriation because you can't figure is a matter of concern my question is was was the jury throughout all of this trial which now with trade secrets you are telling us they were never told what the trade secret no your honor they to the contrary they were repeatedly told by raytheon's counsel raytheon's witnesses that the trade secret was the specifics was the recipes and i'm happy to point to that that testimony that we cited in our brief raytheon's expert at one zero three nine zero says the particular details of this trade secret are the processing requirements including time and temperatures for each material type that is necessary to ensure maximum vacuum life  are their own witness black this is at seven three seven three he's being examined by raytheon's counsel raytheon's counsel reads something from a document that refers to fleer document that refers to vacuum gassing of subassemblies is required to maintain vacuum life requirements in general you want to vacuum bake the highest temperature possible for the longest amount of time tolerable and ask is that one of our trade secrets black raytheon witness says i think it's actually reasonably well known it's just if you want to clean this stuff up the hotter you get it the longer you do it that was well known he says and of course you need to clean it not  then he goes on to say and of course you're bounded by what the part can stand and that's how you get into the trade secret here what the part can stand temperature time pressure mr sharp who is the employee  who raytheon says disclose to brought the trades you get with him from raytheon is being examined by raytheon's counsel and counsel says in fact you acknowledge that those rest this is some sorry six eight one six you acknowledge that those recipes  raytheon's trade secrets don't you sir mr sharp the specific time and tolerance associated with them yes and counsel for raytheon says sure and i'm talking about the specifics i'm not talking about the general recipe so there were by raytheon witnesses raytheon's counsel that the trade secret was the specific recipes and mr shark testified that he developed the recipes with the help of vendors that is at six nine nine two in consultation with our suppliers his own notes show that they were and this is at eleven to three zero and eleven two four six through four seven he talks about using trial and error consulting with vendors consulting with textbooks to get the specifics on the temperatures and the specifics of the process there was ample evidence that the jury could have relied on and apparently did rely on after this lengthy jury trial to find that there was no misappropriation of and i think judge dyke was exactly right that he was talking there about the specifics because his testimony is what i started off reading at nine seven two seven three nine seven two eight where he talks about this idea of s baking was something that was well known that he himself had done at a prior company that's the same witness and the jury easily could have relied on that the council didn't talk about trade secret thirty but the analysis is effectively the same theory there was that the trade secret came over with a view on employee magoo they never called magoon to testify and mr schweikert who was there with a indigo employee who had never worked at raytheon testified that she developed that process on his own and he talked about all the experiments he did all that evidence has to be accepted as true and that extravagances that there was no misappropriation in my time remaining if i could i'd like to it must there are further questions in the well it is it is different on tourney's fees and it is different in the sense of it is under a different body of law there are cases from texas for instance when a party proceeds to trial on out a contract claim even if though the factual basis is the nonetheless raytheon clung to both claims for years and years through at least five years of litigation when it came up to this court the last time when this court kind of knocked the legs out from under the only basis for denying us fees under the t t l way when it went back on remain and all the sudden raytheon agreed that of course california law applies we're going to get rid of some fees are you actually looking for i mean it seems  developed on for instance was there to separate work required on the hospital or a california law well that would be one possible way of doing it or you might split it fifty fifty given they were proceeding under both your profile   and then when it came back down from this court then that's when they were court parties were proceeding toward trial that issue would have been keyed up but all the sudden they then withdrew the claim but this is again this would all be within the discretion of that district court think that this report could look at what i see you having to litigate both these together they're very similar claims so i'm going to going to give only a certain percentage percent because there may have been specific work done and we your honor that would be a question for the district court on remand in the exercise of its discretion or my question is what is the basis for having any legal fees for evidence about when you have developed these things no matter which f well i knew you could you could flip that around and said we were we had to if you could you can't segregated then we're entitled to fees and that is the law in some states but i get i think these are all questions for the broad discretion of the district court the district or very well might not say you get all of it that we're talking about now those would be remained questions the district court made a legal error in concluding then failing to appreciate that the choice of law determination is a decision on the merits and voluntary withdrawal of a claim in order to determination has claimed precludes of a fact so if you get a choice of law determination that california law applies rather than texas law that is a decision on the merits of the texas law claims that means you can not bring that texas law claim ever place and then ultimately it turns out you know there's a texas claimant but that's not the right place after discovery it's really just other states in every single time the defendant's going to be able to ask for t t l life is because  that unilateral withdrawal of texas claim was to avoid the choice of law adverse opinion i don't know i would say every single time because it would be an inquiry into what motivated the withdrawal but texas has made a withdraw using claims but the texas legislature made the judgment that when legal relationship between the parties has changed fees should be awarded so if no more questions we'd ask that for a firm is on the main job worksheet and go the very first task he was asked to do was develop instead to vacuum processing system for i r detector packages when he was hired on that's what he was asked to do acts like one one five one t his first year annual performance review the very first thing under his notable accomplishments was one of the keep duties when carlton was hired was to develop and said to vacuum processing for the auto camp package his design efforts have been directed towards a device that can be mass produced and a repeatable and reliable process that is how indigo obtained improperly raytheon's trade secret thirty they have not disputed that their only evidence to that's a problem your honor i appreciate your positional out of your comment on that mr canal testified on cross examination that the concept of sequential peace park vacuum bacon is not well known and anyway your honor that goes to whether or not  a trade secret and the jury found that it was the defendants have admitted they practice the exact same vacuum bake that we did at the cafe at the pentagon nine seven seven seven and seven eight nirvanic one of the engineers for in a guy he was asked ok second fundamental process that indigo considers fundamental piece part vacuum but yes at least according to for twenty diggs it is and we've talked about that at length this is the piece part the same piece part vacuum bake that you learned at raytheon correct also from that ninety eight zero six ninety eight zero seven mr comes out testifying again question your right on page ninety eight zero seven i want to go over i believe it's the twenty third page this is from lines three through fourteen it's a section called fundamental processes there thank you and i want to go down the second bullet point and this is with the premise of my question and you are going with the question i'm arguing with the question the premise if the trade secret had ever been defined that specifically i might agree with your premise however so you note the jury charge which was a list of thirty one trade secrets which was a charge that was in front of the jury from the my opening statement through closing trade secret fourteen was defined as a method i am use of sequential vacuum but that was the definition of the trade secret that was provided to the jury and never changed indigo never objected claiming that it was not specific enough not during discovery not during pretrial motion practice not during the jury charge him to go didn't have a problem with tracy for being to find that broadly the method and use of a status the jury found it to be a secret it has not been that's the question and you say they found it to be a secret that's what we're trying to figure out the jury had to figure out what it means and they very well may have to conclude  something narrower than you believe it to be but what we have your honor is the jury charge that is what we have to work with of the jury charge the secret was defined as a method and use of a sequential vacuum break and to go to not requested limiting instruction they did not request any instruction any kind of comment from the court to further limit or identify the trade secrets that is the definition of the trade secret that the jury found to be secret that is that is the totality of the definition indigo never complain that it should be more spit aspects effectively identical there was nothing difficult our position didn't change we did not avoid any kind of a ruling on the merits we proceeded with a trade secret case we tried to trade secret case there was nothing different faith the jury must charge that the jury found there was no bad faith or so we're not trying to avoid anything the jury was charged with the question of whether the conduct was bad faith on their part or the lawsuit was brought brought in bad faith on our part the jury found no to both we want to avoid anything fees were always in play the statutes write down a goal the case law was identical with respect to the standard for pursuing a trade secret case we didn't of void any kind of a trial on the merits or any kind of a sudden edge of ruling by simply electing california law as they pressed for