fundamental errors in granting summary judgment here at first the district court misconstrued the contract and louisiana law by imposing a protective full interest requirement which is not required of the z l law second the district court misconstrued both the contract and louisiana law by holding that the contract and the law only protect confidential confidential information if information is in fact confidential to one of the parties and third the court overlooked expressed terms in the contract and fail to apply a bedrock principle of louisiana law which which supports you have to have capacity to contract you have to have a lawful cause which is the louisiana version sort of of consideration and you have to have an object that is lawful possible determined or determinable there is no requirement of a protectable interest not to the contract as a whole and certainly not as to one particular clause which is what the court imposed as a requirement in this case i'll give you a an easy example a form selection clause which the parties had in this case prior to executing a contract with a form selection clause neither party can claim that they had a protectable interest in a particular form but after you sign your contract with your form selection clause then the parties do have a protected will interest by virtue of the contract itself and that's what happened here another example  that we cited several times in our brief the louisiana supreme court was dealing with a contract that sold a business and the business is good name goodwill but only conveyed the use of the business name for six months and the buyer filed suit and said this can't be enforceable and the louisiana supreme court said no his it can just because the sale of goodwill would ordinarily include use of the business name for forever this contract restricted it to six months and that's in forcible because the parties have freedom of contract in louisiana in that case there was no problem by the fact that the business name was in the public realm in fact it was in the public realm and that's what made it valuable in that particular case and so that's why the court said you can contract in the way that you want to this before the original contract between these two parties was suave annex already selling these sippy cups and pacifiers and whatever that that are the currently contested ones in other words these exact same products were they already being sold yes on drugs under a series of of i mean before there ever was an agreement with love and care ok so the key to come is never heard of each other what was suave and excel in these same products at that point no your honor ok so that's what i don't understand body as like reverse engineering is some easy thing to do but if i had to figure out how to make this pen with no help it would take me a while and so did swab the next get the benefit of learning how to make the love and care products by having the essentially the blueprint rather than having to reverse engineer exactly and does it that even though the things in the pub to me this idea that reverse engineering is easy is is foreign to me because i have a lot of these kind of trade secrets cases and whatever and the knowledge of how to do it without having to go through the process of the reverse engineering is worth something isn't it that's exactly right has no one made that argument when when they come to the table when they think they get the benefit of all of love and care is research and development to come up with the product to begin with they also get the benefit of our sales formulas the way that we promote the the product etc all the support for the product that is provided pursuant to that agreement they get the benefit of what you're seeing to protect because i mean no one really took this on this reverse engineering thing but that was what occurred to me was that i could go reverse engineer the space shuttle even if they gave it to me so and i realize this is a little bit easier product than that but still i mean i guess i'm not understanding why that argument wasn't made or why that isn't part of the analysis here or maybe it is 't just seems obvious to everyone i think it is part of the analysis but it's more than just the the contract protects the product design and says we basically if you're going to be our distributor and you're going to get the benefit of our product and our good name and our research and development costs that went into making this product we're not we don't want you to be would be selling our product in spain the only distributor in the entire country and then once you get to up a certain spot in the business once you get known etc then you say oh i'm going to copy your product and i'm not going to be a distributor anymore that's what we're protecting regardless of how they how they get the information to copy the product it's it's the contract says you can't copy any of loving care is product design can't copy any of it you can't part you're saying and you're saying that this agreement provides for a protectable interest so you're not quarrelling with the predictable interest i am quarreling with that actually but i'm saying that i'm saying two things one you don't have to have a protectable interest before a contract is entered into but the effect of a contract after it's entered into is that you can protect what's covered in that contract are because i thought here that this record definition of protectable interest is what's wrong you saying you had a protectable interest what that is not is that the but the one as defined by the district court right so the district court did a couple of different things first it's it says it looked at the word proprietary because the word proprietary is in the contract and it said proprietary is defined as something where you have a protectable interest and then it looks to patent law concepts and say you can't have a protect interest unless it's covered by a patent or copyright our argument is that proprietary design under this contract should not be defined as something in which we have a protected the interest under patent law because that's not what it says it's that if you look at for example what i want to dictionary dot com last night dictionary dot com defines proprietary in like six different ways including just pertaining to an owner or pertaining to a that's a gross misconstruction of louisiana law and it's also it ignoring some of the terms of the contract because if you look at paragraph nineteen it clearly says that at least for purposes of this contract for purposes of paragraph nineteen either party acknowledges receipt of confidential and non confidential proprietary information from the other party so clearly for purposes of this contract proprietary information includes potential and not confidential i e public information and the sentence following the senate's i just read obligates the distributor not to use in any fashion said confidential or non providential proprietary in the trade secrets cases i had as a lawyer we always had to have this discussion about like you can't protect basic rules of physics so the fact that i sit down and give you some instructions and basic rules of physics which would be a short course o but if i did then that the fact that we entered into that in our little confidential relationship doesn't suddenly make those rules of physics something that you can't use in some further job or endeavor so how do we distinguish between the stuff everybody knows you know how to make plastic come out of the everybody knows a bit let's say people in this industry on how to make plastic or that sippy cups or something baby's in the or whatever so we have all these basic propositions that you would learn in school or that you would learn working anywhere and whatever and we can't suddenly say swapping x can't use those how do we distinguish between non confidential proprietary information and th everybody knows it kind of physics stuff in this camp that clearly you couldn't restrict because i mean you know how can i sort of a know things i know right well a couple of couple of hit a couple of different things here one we're not claiming it's a trade secret and so we don't have to comply with any any of the rules where you would have to show a trade secret two in louisiana under the freedom of contract principles which are very important and well enforced by these and of courts you can contract for almost anything unless it's illegal so regardless of what everyone knows when they contract it not to copy any of loving care is product design when they contract it not to copy loving cares products that's an unfortunate bill agreement and while it could be a question of fact as to what is love and cares product design this is a summary judgment then it was there is no evidence that i'm sorry i didn't mean that that there is and there is no evidence that shows anything other about the parties intent other than they intended don't copy or knock off our product designs or are you going to actually hear when the battle moves the workers i mean i looked at those pictures to some degree look alike these didn't look particularly a lie and so how are you going to win that if even assuming we go your way on the us will for one thing love and care is already won several times on almost same types of arguments so we can win and it and it will win i think based on just a few photographs that may have been in the record for purposes of the appeal that's not doesn't give you the full and total picture of of the product and it's not just how they look but it's how they function yes there we have a special sippy cup for example works on compression as opposed to having to suck and yet you still have a no spill top so it's the function not just what exactly does it look like business it is not in the business of creating products and putting them in the corner and hiding that it's sells its products to the public so obviously the only way to interpret the contract to give it meaning as is required under civil code is whether the district court correctly construe paragraphs fifteen b and nineteen of the parties agreement according to their plain generally prevailing meaning as applying only t proprietary design or information i'd like to direct the court's attention to the language of fifteen b which is in the record on appeal page eleven zero six and it specifically say drawings business plans prototypes packaging procedures and methods and any other proprietary designs or information without l n c's written permission the crux of the matter before the court is the appellate love and care is trying to rewrite the party's two thousand and nine agreement into the language of the agreement that was issue in the universal gym equipment case the universal gym equipment case in that case the language of the agreement that was issued said that yard and i quote shall not be there after manufacture use sell or distribute any products which include any of the features designs technical information are said no how of universal that's universal jim case a twenty seven fed second fifteen forty five now this is important because the sole basis for the alleged breach here is alleged copying of some features of l and c products that were in the public domain having been publicly available and sold for years before the two thousand and nine agreement was even entered into you agree though that your client wasn't selling these particular products that are in question before any deal with love and care of our client had products on the development your honor but was not actually sell it was not actually selling the products that were not that are now in dispute we call them the disputed products were not being sold before any the initial contract with love and care the initial relationship with loving cat that is correct and what is your response on the reverse engineering line of discussion i have with your opponent but with regards to reverse engineering or whatever is out there in the public domain that's part that's part of what we have for commerce for the for the public's benefit they are permitted to go ahead and there's a difference between having to go in reverse engineer and being handed the plans and specifications and here's how we do it manufacturing process and all that your honor they were not handed the plans they were given the commercial product that was all they were given they were not given any design plans to manufacture these products they develop their own manufacturing design plans that the only the only thing that has been accused in this case is parkin for in order to use the car it's really a question of whether the word other wipes out the phrase product design that's really how you guys have set this up well that's part of it you in that you cannot read the word product design in isolation you've got the any other proprietary had they intended to cover any designs and that they would not have put in the words of their proprietary catchall it yet further they repeated the same exact thing step and here is proprietary like traits is other proprietary design like trade secrets some of it arguably isn't like the product design depending on you know whether it's in the public debate so the packaging and procedures and methods i mean some of those may i mean so i don't you're reading a lot into the word either you're saying that therefore the phrase proprietary even assuming you know it's modifies everything by the phrase allen c s l n c's so as opposed to joe blow or pampers or whoever i don't know who makes a few caps whoever else makes them because you would matter whether you have the contract that's that's right because you have a proprietary interest in it so that was what the cards in fact had the ordinary ip law but what it adds to ordinary i is something more than what they had a protectable interest that was not available to the public had they use plain language as in the universal jim cook steak a belief was not available to the public would then be something that copyrighted trademarked right it could be copyrighted it could be trademarked it could be trade dress it could be lots of different things it is what i'm doing i mean what's the purpose of that clause in the green if it if allah does this protect way for me to say it and i'm trying to prove the question is that's all it's protecting it's things that are already protected right that's what the parties intended by this yes sure are you have to look they intended to protect things that are already protect they intended to protect things in which the loving care had a protectable interest where they would have normally rather a trademark but definition of this the lure it could be it could be any to any of these things the form of the trade secrets it had me something in which they particular six confidentiality agreement site if you have something is confidential you identify it all right and as as being confidential because you have rights in that in these neighborhoods or protection you cannot just just go out and to be it's not confidential so i'm still this is seeming very circular to me in your argument because basically in order to protect something by contract you already have to have an ip right to protect it anyway so you're just saying we were just adding one more cause russian of what you can already do but it's also serve the other and is it serves as a limitation on the things that the opposing party is protecting yes yes and that you agree that you can't do the things that you can already do if every seems to me by always including what rights you are one party already has and making sure that they're now expansiveness they can be because by accepting what you already have that be that means that now it's limitless you you also have your vasile give the other party rights should never have by identifying the rights that they already have it that's exactly the way he is trying to reach disagreement is is to identify things which they've never had any rights that they could come back after the fact and say hey i've now have a product that i'm going i'm going to do this in the future and that therefore you can no longer continue to  make this particular design that you the purpose of this was for the parties to come forward and to identify clearly what they intended to cover they put in the techo at the end to show that they consented to be proprietary information not things that were freely available for anyone to to do the just the court correctly recognized that it looked like that the language is are you saying are if you couldn't enter into a contract with somebody to have them refrain from doing something that the general public could do no no i'm saying they could have but they didn't they could have used language like in the universal gym case and very clearly expressed here not that you are prohibited from making any products which include any any of ellison's features all right that's what they want that's what they're trying to make this language read into by reading out the word proprietary before properly construed term proprietary went to black's dictionary and looked at for the generally prevailing meaning ok so then if i don't own these pacifiers then people can just come take them off the shelf it wal mart or because it seems like ya'll are saying it's clearly my way and both of your ways are different and that doesn't make it ambiguous and i'm asking does it here no as a district court judge properly found when you read it and you read it in context you read the whole sentence you don't take one part out of context and just focus in on product design alone you don't just look at just paragraph fifteen b you look at also at paragraph nineteen which has the same language which which  if you look at paragraph thousand nine hundred it has three different parts the second part of which they had knowledge the receipt of both confidential and non confidential proprietary information and then the third sentence there saying that they only that it be a similar product and in other words a pacifier or is it important that pacifier have a a feature or an aspect of it that proprietary information has been used with respect to that feature in other words is it just is it just that it's a pacifier or does it have to have that pacifier that competing past our have to have an aspect that from something that is that these people have a proprietary interest or planning design you know atlantic from your standpoint that it was another pacifier or that you sucked on it because you suck on awful they has it has some feature right but it would have to have some they would be correct if in using that pacifier of manufacturing over selling at whatever they use to plans that were trade secrets with or to with respect to an aspect of that pacifier then you would you would be in violation of your agreement right if you use their secret plans and that obviously would that's not the issue here right and if they did there is no copying n allegation of copying of the actual product design all they have alleged is copying features and functions the old we have this for the record is limited features and functions as you've seen if you look at the read brief of pages thirty three to thirty four there are numerous citations to the record evidence to say that there are multiple differences between the choose products and the products that were allegedly copy right and because of those multiple difference there was copying of the product design now in the in their reply brief l and c says that this is a new argument raise for the first time if you before you get to that let me just ask you if proprietary information cannot be something in the public domain then what is the non confidential proprietary information non confidential practice i gave you examples it's right that was provided to list a trademarks all right the trademarks is attached exhibit one is not on confidential proprietary information if they had designed pat that would have been done confidential proprietary and then we're back to the whole exchange about whether that's already protected or you don't have anything else you don't have anything that would fall under non confidential proprietary information that is not also a trademark copyright patent or similar intellectually property governed mat received was actual commercial product they didn't receive designs they did there's no allegation there's no allegation of copying private stock secret drawings or that could not find saying you can't look at you have to sit on it basically i can't do that with a picture well if you look at what we site to the record on appeal on that page thirty three and thirty fourth that shows multiple differences it's not copping a product  that loving care quote intended to protect things and which love and care how to protect the interest that's what he claims our intent was well that intent is nowhere reflected in the terms of the agreement nor is it reflected i we don't think it is but to the extent that the court has any question about whether what proprietary not confidential information is then it would be a question of fact that should have precluded summary judgment for short the two reasonable constructions of the disputed if we were to say it's ambiguous what would be the two reasonable constructions we would find to remain  honestly i don't know i don't prada i think product design is pretty clear i think products i think that the obligation not to copy or use any of loving care is product design is put is very clear what might be unclear is whether they in fact breached that obligation but we never even got there because summary judgment did you identify that you say was copied or that they use  unique designs designs that is what are unique design one is one is worse sure it's fake it's a soft silicone pacifier which has soft parts of it to protect the baby your the one otherwise they're in violation they're supposed to not copy our unique design ok so if they make one that's hard they're mai ling it r r d r the other products all hard are they're supposed to be hard i mean a just happen to have something that's desirable and that's used in all these patches or i absolutely agree with you that they can't just we're not taking the position that you can't make a pacifier and sell it certainly they can but they can't create knock off products and there's a lot of testimony and expert reports find says you're not really able to give us a list or maybe you were giving us a list but can you tell us where we'd find in the record the specifics that answer judgment  new distributor getting complaints and that the new distributor was selling loving care products that were against virtually the same products that were being sold by swapping x anything else that was the same other than the s can drink from the top by squeezing it instead of having to suck on it and yet it still is a no spill top that's important apparently and also it also has a soft in heart components the  had team one of the owners testified at length and it's in the record let's see beginning at pages thirty two forty two i believe that that his product design that he was copied that she would have to have a proprietary interest in particular design her future so that everyone used to have the same if lots of people were using and it's in public whatever the fact that your product had this feature it didn't make any difference whether or body else or nine other competitors have the same feature or even had it before you then the opposing people can have a pacifier that contains this feature even though you don't have a proprietary interest in that particular feature in other words if it's similar you can't sell it even though i don't own that aspect or that design i think that's right if they don't you there's a knock off if it's a knock off you cannot sell it that's right so you are selling and now you can't sell a share of a pontiac because it's got a ton tires on it and we have soft tires or we have we have firestone tires on our on our car you can't sell a different car that has far still because we're because we sell it that way that doesn't make any difference that we don't have any proprietary interest in firestone tires or anything else you're just out of luck record may not bear out my my concern but i i have a concern that just because you identify what your limits are in the law in a contract that the fact that you took the time to explain in the contract what your limits are and you already had and that means it's now you have other things that you didn't have before because you acknowledge the limitations that you have and that's the problem that i see and i don't know where i'm at on it but the problem and i see it between opposing interpretations as that you want to say because they accepted things that are our rights anyway that now we have rights that we didn't have because we acknowledge they acknowledge what what their limitations are i think that's true in every single contract that's out there i my employment agreement with my law firm i can't practice law for any other law firm before i have the agreement i would have had that right but i have agreed to limit that right and i just want to respond just real quick to his various argument about the features i understood through to your proprietary  proprietary interest already they didn't have the right because you're there would been protected under patent and trademark water weed i would disagree with you your honor i don't think that proprietary means it must be protected under patent or trademark and that's exactly what the  in some cases that's exactly what the novel or case says and that's with universal gym case says regarding features i just want to point the panel to the last highlighted sentence in one thousand which is where short ten minute recess