contracting regulations like your honour's we presented to the court of benchmark the first three tabs concern the preemption and the lack of subject matter jurisdiction arguments and with cites to the record and the fourth contains the federal contracting regulations and so on preemption and lack of subject matter jurisdiction your honour's it starts with the courts prior opinion of so we start with the court's prior opinion back in two thousand and twelve in that opinion this court did not hold that any of globe rangers claims was preempted it did not a fur any of the district courts grant of software g s twelve b six motion that's clear from the opinion is clear from the judgment mandate of the court the court did not hold that that's motion to dismiss stage that problem one of the preemption test was satisfied as to claim in the second paragraph of the discussion section of the opinion page seven o five the court held first that at least some of globe rangers claims were not preempted and second that the case could remain in federal court at the motion to dismiss stage as globe rangers conversion claim was likely preempted at page seven of six rock principle is jurisdiction is determined at the time of removal right when a case initially found the record at the in the original petition in state court that was removed a federal why did you need to scupper he was determined on the pleading at the time of removal your honor that's that's what the district that's what this court instructed the district court to do is to determine whether or not there was jurisdiction based on a more developed record it left the application of its modest conclusions to the district court to determine on the basis of a more developed wrecker the tru didn't concede early did not make that finding your honor at any time until the fifteen the ocean was found after judgment the case went to trial that the other claims were dropped there was no more developed record made the other claims were dropped or dismissed the case went to trial in the trade secret misappropriation claim and conspiracy claim and those are the only ones on which there is a more developed record so tab two shows the tab one shows the time  your honor and we do go back and analyze each of the original claims based on the record existing at the time in order to show that there that as an alternative if there is no preemption of the trade secret misappropriation claim there's no subject matter jurisdiction  this court's prior opinion as i said did not determine that any of the claims satisfied prong one of the of the copyright preemption test the scope of globe rangers claims did not change until trial you can were outside the subject matter of copyright so it changed all that trial let me if you talk about your honor preemption and i before i turn to preemption i do want to say you know we're absolutely mindful and aware of the resources that have been devoted to this case by the parties to the court and our alternative argument of lack of subject matter jurisdiction is is based on the fact that they're all courts are of course courts of limited jurisdiction and the court has the the case on preemption because of time i'll probably leave a number of these arguments to the breeze on the additional whether there's an additional element you say all the argument is that they received information knowing that the people giving that information to them were under a confidentiality obligation why isn't that sufficient to take this beyond a copyright call write your out of what i think  that court back to a principle that appears in that this circus jurisdiction jurisprudence consistently and that is that you look at the actions of the defendant all trade secret claims are not created equal for purposes of preemption other courts have recognized this sort such as the long court we cited this this court from the from pennsylvania and al time in the second circuit which applied texas law many courts have distinguish between cases in which the defendant breaches a duty of confidentiality in cases where someone else breaches a duty of confidentiality in the grab them of the complaint against the other defendant is copying use of the material that was disclosed by somebody else when a defendant breaches a duty of confidentiality those cases are generally not preempted when when the grab a minute the complaint is copying in use of information disclosed by another under a duty of confidentiality that those cases are held to be preempted generally and here globe ranger  course relies quite a bit on this court's decision in computer management associates versus the castro of the louisiana unfair trade practices act several things about that your honor first in the castro  the defendant de castro did have a duty of confidentiality to the plaintiff in that case and so that would stand in the in the in the in the in the cases of that one  also the court's analysis in that sense in that in that case was one sentence it's not a very it's not as extensive an analysis as saying spear marketing which is a very analogous case to this case because on the subject matter jurisdiction point your honor alternatively as as i mentioned a number of reasons in the outset why this court did not definitively find a jurisdiction over any of globe rangers cla another reason why that is the case is the court remain ended taking the court at the face of the opinion for additional discovery a more developed a record almost like a for further discovery or a more developed record because the question before the court would have been is there supplemental jurisdiction should the court maintain supplemental jurisdiction and those words are in the statute and carnegie mellon for example or no where in the court's opinion so your honors at least one of club rangers claims must be preempted and the only possible claim going back to my original trial and lay it over a claim that was dropped way back when the claim was either you know within federal jurisdiction or not within federal jurisdiction when it was when it was in the case and there was no determination made before it was dropped there could be no determination made before it was dropped because nothing satisfied problem one under the court's analysis in the park liberator opinion so i don't know any authority your honor that allows you to post dismiss l go back and apply a new record to the allegations that were present back there  our breathe in this case and it shows very clearly that the claim in giles was found to be a federal claim in a preemptive claim before it was dismissed and now the show preemption or some things are predators some things are a lot are part of a claim to be preempted that we also see in spirit marketing that's just that's just not what the court that and that's why i think it's so important to look at the relief that's been granted that was granted in the first appeal was reversed in the man for further proceedings and the judge will mandate which we pulled and looked at again yesterday where you know part of the secret misappropriation is not completely preempted by the copyright act just like the district court here these courts have found that the breach of duty whether the duty was owed by the defendant or by a third restatement first of torts which is where these concepts arise they talk about four different types of errors one of which is this theory of you have a third party that owes a confidential relationship different in current from copyright into ketone this court said that the contract promise was such an element and a computer management this court said that fraud misrepresentation or other an ethical conduct constitutes an extra element so this court's finding the breach of the duty would be consistent with that authority as well as the tenor circuits it would also be consistent with the legislative history if you look at the legislat language in globe ranging more is very simple they found that the conversion claim was preempted and therefore the jurisdiction was found and sent the case back to the federal jurisdiction but person then you get to trial and it comes out of trial that the plaintiff has never stepped foot in texas in our life is actually always been in new york just there was a mistake that was made  that the the facts make clear there is no jurisdiction even though the pleading showed there was jurisdiction not scenario at trial in that fact comes out with the court have to say you know what i never had jurisdiction over the case at all later evidence that gets developed shows clearly that there was never jurisdiction right that is what spear holes that is subsequent events do not the best court of subject matter jurisdiction and that's way were actually wrong and i think that's what they're saying is that even if even if there was complete reaction on the pleading as the case developed as your theories change that show there was no preemption and so no jurisdiction to the globe ranger one says we're just saying you need to look at this closer district court get some evidence and see if it's printed and you guys never perform there is no authority for the concept that you're going in discovery to figure out whether you have subject matter jurisdiction one you actually can ask for discover you can attach evidence on my post through twelve so in a court can consider evidence and in the soviet managers dictionary great game i'm sure i'm sure they can in this case what what  remand if it's supposed to be at the time of filing it doesn't matter what the true facts are because no one explained to the court the time of filing rule it doesn't matter though even if the court's wrong why doesn't the law the case with regard to this case say that that had to be done i'm at the same seam it's a total outlier it's sad that that was supposed to be done here i think that that last paragraph is dicta it is inconsistent if the judge how can it if that be ticked it is not an instruction to the court is an invitation to globe ranger to go and figure out if it has tangible property that was  are finding the only holding in globe ranger one is that there is subject matter jurisdiction based on a converted base on the conversion of intangible property and that that claim was preempted those are the two holdings and judge southwick who wrote globe rangers sat on the spared court and he would not be reversing himself when in spirit he says that what the district court did there was exactly correct and ok that's what they're talking about it's just mens rare here you have this extra element which is the breach of duty which is not found in c t l a claim so the whole concept of notice is irrelevant to a trade secret misappropriation case the element that you focus on the nature of the claim again what you're the right that you're trying to protect is the duty that's owed to the plaintiffs by virtue of these confidential relationships that's the focus of the clinton in the courts in the ten circuit say that in various ways some of them say you look at the nature of it you look at what you know what what's the right being protected on the jurisdiction question your honor this one's easy there was subject matter jurisdiction based on the original petition based on the conversion  i don't see how you can read globe ranger one any other way and in fact the spear court cites globe ranger for that exact proposition and going to talk about the damages sure but let me let me answer one other question that was asked you know why i can't you look at subject matter jurisdiction now this concept that of the cases been tried already it holds that you can look at it it any time including now which is what they did in spear so i would say that spear is the authority to go look at in terms of whether this court can it this point in time go and look at the original petition and decide for itself if there was subject matter jurisdiction at the time of removal and that the operative rule is the time of filing roll now damages icing section forty of unfair competition talks about the different types forty five talks about the different types of damages that you can get awarded one of those measures is development cost of what it by the defendant through their misappropriation and that's the measure that we used here there's two complaints about damages your honor not sure which one you want me to address one is  and there are cases that say that i mean they've reversed thing when they were done this way the university computing case is the authority on this issue on this particular type on this particular type of damage model not to use development cost as the exclusive measure of damages university computing says that so and that university computing is bad for you not good for  said the same thing and in fact you talks about this measure so this measure is basically to say that what you say in development costs i can use as a proxy what i actually  spent to develop it because that's the measure that you're using to segregate yes we segregated are going to cost al a couple to the misappropriated trade secret from the other development cost we segregated those directly related to the property that was misappropriated yes from that that we can we did not claim a trade secret in because there was there was evidence a trial essentially that they spent thirty million dollars and of that some of it we did not attribute to them so of the components that were misappropriated it was nineteen point six million dollars so we did segregate in that way we also segregated those costs that had nothing to do with our trade secrets and we weren't claiming a trade secret so we we segregated those costs as  well now i think you did adequate segregation under el corps requirements we did adequate segregation in terms of what our trade secrets were and in terms of what had been misappropriated i thought it included ok go ahead i'm sorry i'm sorry i that's i have to check the record on that and loraine to do business in two different ways the first was the navy licensed the software and the navy licensed the software through what's called a g s a schedule and services administration schedule there was atropine no no dispute absolutely not and i'm not even sucker eighty's expert disputed this that that software was commercial computer software that's three point two million lines of code that there was under city that's commercial computer software the second way in the batch where they contend even percentage of this it was under speedy trial it was commercial computer software right we're talking about twelve thousand lines of code which is about one percent of what was delivered right now the question is is it minor modifications which put it in the commercial computer software been or is it something else right they want to say it's technical data well let me tell you why it's not technical data right number one because the government's the progress presented him said it was not she was asked is a technical data her answer no second answer the sub contracts first of all as i said there were two ways in the contract that they referred to was modified and it was mana far in its plaintiff's exhibit thirteen and it was modified in the modification says you look at this o november twenty seventh two thousand and seven and you look at the proposal of january second two thousand and eight and if you look at those documents they say quote and by the way those two documents are plaintiff's exhibit thirteen and plaintiff's exhibit thirteen all of the evidence a trial other than the defendant's expert said this was modern modifications and even the government's own documents  ur opening brief where we highlighted but the lack of segregation the lack of the flaws in mr bennett testimony and the record sides are they are in terms of what he did not t favor the trials are going on their way and my review of the record your honor but i do believe so yes or on the federal regulations the federal regulations are important  improper acquisition or constructive notice of impropriety the court's refusal to chart was simply retarding that the court's refusal to charge the jury on categories other than commercial computer software specifically technical data and noncommercial computer software in the courts failure to charge the jury on the importance of government funding and the government's rights and  technical data certainly certainly heavily influenced by that you're let me give you a couple of examples of why from the record what like technical data is important globe rangers prime contract and sub contracts the exhibits that the court requested in advance of argument all in use clause seventy thirteen sure handed and seventy thirteen is only used when the contractor is going to deliver things other than of commercial computer software such as technical data and so we have from the very contracts themselves that there will be technical data delivered and miss cleaver the navy said that at least parts of the navy are of id solution or technical data and are not computer software that's it ages fifty three sixty one fifty four hundred fifty four or two of the record on appeal and even if the resulting product later be perms commercial computer software or even if that technical data underlies commercial computer software or not in commercial computer software the government always has rights to that  software because in an area that's as complex as the us the jury certainly should have been charged more extensively on the government's rights to government funded portions of the project and also to technical data and noncommercial computer software go braintree even admitted at trial that parts of the navy or at id solutions were not commercial computer software as those lines of code the twenty four thousand lines of code for which  regulations were complex there are conflicts in the evidence and about what was technical data and what was commercial computer software evidence on both sides and the court summary judgment ruling which the court had here to whatever and that's just not an appropriate reading of the regulations and seventy thirteen of that were before the court on jurisdiction we certainly are saying there was no finding of preemption of the