reasons st the court applied the wrong standard for assessing irreparable harm in this particular case which is a threat misappropriation case primarily and nd the district court looked at the wrong harms the district court looked at things that weren't even alleged to be the harm it would look to whether there would be f d a approval few years down the road and what we were pointing to is the fact that this is a research and development area that other people everybody's trying to we're not everybody but people are trying to discover new things and the  our our guys from our company spent years working in developing and finding solutions for these things and they were they all left well to left a couple years before  we received assurances that they would be protection and then we find out that what they did was they built a from scratch a competing a competing research and development lab in the same town well as or any evidence that they used the information they had learned in your client's employ we presented evidence below your honor it was under seal because both sides wanted school killer she answered yes and it was primarily from our expert witness who had access to both sides technology and he went through and  he can't really look at the transcript that much because the transcript is open to the public so you have to look at his declaration and he went through extensively and made some in testified that there are already using some of the some of our technology and that there was a grave risk that they would be able to basically leapfrog or skip all the research and development so why wouldn't that be cured if the district judge issues a permanent injunction at the conclusion of the trial to say that locke so cannot patent any of these products your answer would have no bearing on whether or not there was irreparable harm between that time that the district court's ruling and the conclusion of the case no i would submit that's not true in fact that the thing that the court latched onto was testimony from our c e o explaining how critical it was and how harmful it would be if the some of the discoveries that we made including what doesn't work in this area if we figured out what does work that's extremely valuable and he was pointing out that you know a lot of stuff doesn't work a lot of people don't get f d a approval but but if we think we've got a product and all of our employees lea p she joining luxo there is immediate reparable harm and them developing the same products if they're able to patent it no primes a whole different subject than trade secret misappropriation the harm is that they get a short cut in the research and development so for example just hypothetically let's say it took five years for ray to develop it in these are specific  molecules that they're researching five years of research they figured out seven different tries didn't work one try worked in their their scientists go to a competitor and big get assigned to the very same molecule ok that's where the threat is and we've in our expert witness admitted evidence in documents below under  seal showing this immediate interruptible harm and the court did not analyze it but there was no evidence that they had done anything at that point there was no known compete agreement here there was a noncom who was a non disclosure agreement and i was in the impression that the person of the company went through a whole list of stuff and destroyed stuff that would go agreed upon and that there's no evidence that they disclosed anything that's simply incorrect there is evidence and we submitted that evidence to the district court and it was not looked at or analyzed the district court only looked at by by definition what the court looked at would be speculative by definition while the argument is that what you your argument is speculative in your argument of harm is why don't you compare this case the way most when we were i look at on me how you line up to those the threat because the circumstantial evidence indicated to the court that there was a grave risk and that maintaining the status quo well discovery could be taken to help show what was taken  taken would be equitable and prudent in that case because of the risk the mess is same thing we're talking about here that's what i want to know show me tell me what what is the basis i mean there you had what over fourteen thousand confidential files stolen you have a situation where there could i mean it seems to me fairly clear there was a concrete basis some was going to happen in those files there was a concrete basis that they would be used what do you ha st your honor there we allege that there is a taking if i was representing the plaintiff in that case and we allege that there was a taking one thousand confidential documents the other side said there's no evidence of use of any of those we couldn't presented any evidence there was no evidence the district court didn't even go to analyze the evidence that we we did submit some trade secrets in we were in the process of developing that in the case the district court didn't even go there it went to the threat and i understand they ended fourteen thousand documents were there's no evidence of use but and mr levin dowse the the individual who downloaded specifically clarified that when amish appropriate the trade secrets they would be harm not that they have done it or that they're going to do it but when they do it right at like t f downloads here the two individuals who left earlier in set up the whole scenario deleted e mail swiped their laptops at set i can give you we're asking stay out of the same molecules for the plumber injunction that's it in in the levin dow ski there was evidence that he had planned this whole thing with the o of over mr callinan and that they had set up a situation in advance of the employees leaving and in advance of mr levin to ask you leaving as well to solicit and bring those employees over while they were still working and secretly doing that while they were still working at weymouth here we've got evidence that we do discovery learns that should research this molecule you should research that molecule and explain why all right in this case they did that for two programs a few molecules here a rate suggested to lu doing it with our employees in a shop across basically cross the street that didn't exist before they hired our employees so you know similar to weigh him out you know  scientist and i think up this deal for company a and then i leave and go to a company b do i leave half my brain with company a you know i can do will you don't and that's the difficulty of these types of cases that you want to protect the trade secrets but you want to protect freedom of movement and i'll note that in the brief submitted by lots of they say we were trying to prevent these individuals from working in their profession we're trying to shut down locks those programs know we're just too molecules that we presented during the collaboration agreement and they rejected and now they're pursuing with our former employees those two molecules all right that's a huge there's there's many other programs that lock so that these individuals can in are working on in fact the individual left at the same time my understanding from what was in council is they continuously ben  walled off from those projects so they're doing stuff already that voluntarily that has nothing to do with these two programs and what we're saying is the whole circumstance here as actual misappropriation doesn't have to be based on something sorry doesn't have to be based on some evidence yes you're show us that there's a threat of misappropriation and here we've shown all those facts i just went over and believe there was a threat and the district court didn't look at those ok the district court didn't look at any of that stuff the district court didn't even address the fact that the statute says that threaten mr procreation is and state law isn't there a good reason for that you never argued in any of your briefing in district court that either the federal or state standard with regard to threaten misappropriation should bear on the existence of irreparable injury when we did argue thread misappropriation we did cite the statute for threat misappropriation there wasn't a case in the th circuit on these facts that that was applicable so we relied on the threat language in the actual statutes and the end of our appeal i said there's two things one is they provide the the wrong standard in the appeal they apply the standard from the high demand case which says quote injury must be certain great actual and not theoretical and so that's fur trade secret threaded minute threat of misappropriation trade secret case recognized by both federal and state law harm from threatened us appropriation and none of that stuff was addressed and also i just want the court to know we had both sides at fifteen pages so there's only fifteen pages a briefing so there's a lot of evidence that went in at the hearing where your honour's thank you suggests it's a routine denial of a preliminary injunction where the evidence fell short like to st address the standard for irreparable harm which the district court correctly applied and why it is fully consistent with the defense trade secrets  act and then why the district court's application of that was no abuse of discretion at all it felt easily within the court's broad discretion and finally to address the issue of the heightened standard that was a subject that was touched on in the briefing so starting with irreparable harm arrays argument boils down to this notion that there is something inconsistent about well established th circuit law that harm must be certain great actual not theoretical which is to say not speculative and the defend trade secrets act which allows doesn't require but permits a court in its discretion to grant an injunction to prevent either actual or threaten misappropriation they're not inconsistent and indeed that the district court's opinion than spec the department need to show significant risk of irreparable injury the court cited both of those because they're not in conflict with each other and there's no indication that what the court was thinking or what the th circuit was thinking when it issued those of those orders saying certain surely will result in those sorts of things with the court meant was we can only enjoined conduct that is actually occurring right now and we can only enjoined conduct that will certainly that will result in harm that is certain to occur that's not what the th circuit man and it's not what judge berman what judge bremer was applying is a well established rule that harm can't be speculative and here the evidence was he also applied the well established rule that harm must be imminent and this got this goes to judge walker it's a question from the beginning which is was any evidence of this a legit reparable harm shown to be likely to occur before the trial in this case and there was no such evidence this was largely a in and inevitable disclosure case a case about what people retained in their heads with no evidence of any stolen molecule that was ready to go to market or anything like that in  that's that at least would raise an eyebrow for some people including me so explain why why should that factor into the question of whether it's certainly your honor to simply talk about the idea of going into and by the way these are molecules these are areas of research these are known causes of cancer and public literature there were discussions between these companies which their c e o dr salk amano described as a mere pitch about arrays capabilities a detailed existing molecules they didn't have a lead candidate a compound anything in these areas that were pitched so the companies were free to work together on those or not to work together on those and it's also worth noti that a raid was the company that decided to end the collaboration between these two companies which had been going on for years under which there could have been other projects together there was no exclusivity requirement in the agreement between the parties there was no non compete between these companies and lock so in college he was free to go pursue its own research in these areas once that collaboration ended and indeed when describing such issues it comes about as the about face i mean that's what gives pa why did all the sudden become interesting when it was an interesting when you didn't have your employee well it was not interesting because they didn't come forward with a with and there was testimony on this there they didn't come forward with anything that would it an advantage they were also starting at the earliest stages and this was one of judge rumors findings is that even in these two allegedly overlapping areas out of twelve alleged trade secrets where they sought top secret areas where they saw an injunction both parties were at the earliest stages and the evidence about what lots o ecology is actually doing in these areas is starting from scratch taking working with a different contractor different contract research organisation that has a huge library of its own compounds and doing what's called high throughput screening and testing those we're doing what's called benchmarking which is simply looking at publicly available scientific research about what's out there this is what companies do when they don't have a head start when they're starting from scratch that was the evidence the court was confronted with and it was no no abuse of discretion to find that that scenario didn't show a likelihood of irreparable harm before and certainly not before trial the other verhoeven presented was you know while this focus on what happens down the road in competition instead of what's happening now but that was the evidence that a ray presented extensively in support of their claims at the hearing and in their papers they spent pages on it saying this is we put a lot of work into this and a lot of it goes nowhere and a lot of it fails and so here they are with programs that are at the earliest stages and under cross examination the even this thing that we think is promising will probably go nowhere and so you had a company with starting from scratch you have another company that's that's not much farther ahead if at all and nothing's going to happen there was no evidence of anything that would happen before trial it was it was a ray who said they faced competitive competition in the clinical trial or a face they would face a competitor down the road in this list of abstract hypothetical harms and they couldn't show that any of that was likely to occur before trial well we're going to that point the two cases that we write case in the way mckay's one of the things that was in them it was sort of interesting when you talk about this developing technology issue is the question that there could be a harm if you could it dance to the point that you could be attracting both personnel and money you know even if you've got a long rise in on this kind of research and you know scientific research of this sort that if you start being able to attract the best scientists if you start being of a track money in and you know in some instances government money you made a tremendous benefit there and so in when you talk about this notion of there just being in you and them just being the formative stages on this was there any sense that you would be at such a point there was no evidence presented that any of the alleged misappropriation here was positioning lock so to attract additional employees i wasn't even an argument made at the hearing about money nor was there evidence of about soliciting investment on the basis of of the it's alleged trade secret areas keep in mind a lot of this was this inevitable disclosure about what people have in their heads with no evidence of of any use the two overlapping areas again we're early stage there was discovery in this case there were there were months and months of discovery they could have sought discovery trying to show whether there was any and used to attract these people secondly the question isn't just were you able to hire somebody but was there a reparable harman on the subject of the hiring of the seven person now to whom by the way were independent contractors  couldn't even get a job at a ray but those two plus the five the evidence we introduced showed that the c e o of a reggae at the time they left stated publicly that the purchaser of this small group of employees is not expected to impact our ongoing research efforts they were saying publicly there's no harm from these people that but that's that's the converse of their theory theory is that not that it destroyer part of it is that destroyer or interrupted their to bill that also that it gave stuart to lots by giving them the opportunity to attract alan but there was there was no evidence that any of those seven individuals who are the accused other accused misappropriate hers in this case were attract because of any trade secret misappropriation the evidence which was an rebutted their testimony in declarations and one witness came to testify at the at the full day evidentiary hearing was that they were attracted because they had been working on a collaboration with locke so for years together knew the people there liked the work they were doing the accomplishments they were achieving and wanted to continue that work this isn't a case of a company that just goes and raids strangers from another company these scientists had worked together for years in an agreement that had no between the companies there was no non solicitation and no non compete so ray was understood that it could hire from laaksonen lock so could hire from array the scientists work together  and at the end of that collaboration which are a ended lock so obtained exclusive rights to continue doing work in the areas of the collaboration technology which these scientists at are a had worked on so they could continue their work with people they knew and liked in boulder helping to cure cancer and it's just it's simply not it's not the suspicious fact pattern of a case like were fourteen thousand dollars documents are taken the witness takes the th amendment there's a six hundred and eighty million dollars investment in that been impossible for them to independently develop technology within the same period of time but for some disclosure to have taken place was there any similar testimony here about where your client was relative to the two areas of research that had occurred in other words absent any sort of communication of trade secrets what was the the path of investigation that your client was undertaking was that something that could have been done apart from that so our experts our witnesses and our experts testified that they absolutely could get where they were particularly in the two accused areas where they started from scratch where they had an independent scientists developing his own computer model where they had a rd party contractor that had huge volumes of existing molecules to test in these areas and that none of this showed a head start their expert in general terms talked about the fact that a company could get a head start from t trade secrets but that evidence was obviously not something the court found with you that's one compelling and it and of course it's your take on the record but i want to understand clearly your take on the record it's one thing to say yes with this kind of trade secret you could get ahead it's another thing to say the along the lines of we right it would be impossible for them to be where they are if this had not happened i don't think the evidence in this record came anywhere near that  and you know these were the courts the district court's findings that there was no imminent risk that there wasn't there were speculative allegations of irreparable harm and those determinations those findings are reviewed for abuse of discretion this is your error clear air and us you know the fact is that even in the way mckay is the judge denied much of the preliminary injunction that they sought and you know and a district court opinion certainly unreported district court opinion might be interesting but it doesn't tell us that it would have been error for the district judge to reach a different conclusion this is the question now is whether judge bremer abused his discretion in finding that this evidence fell short and and he  referring once in the order to a heightened standard being a heavily and compellingly standard which the o central case rejected of the on back occurring decision although it said it still heightened standard we're just not going to use those words why is this not an error here judge bremer referred to that in the context of saying whether there is a heightened standard at all and he found that for the vast majority of the relief here this is not it's not an disfavored injunction it's an the that that had to show but heavily in compellingly the precise words or reject that clearly is right so then then we look at what the evidence of irreparable harm was though and his analysis there and it was an we know they found the irreparable harm under the normally difficult standard was insufficient as to everybody else and there was no differentiation in the alleged harm that are represented so if it fell short injury which fell short was the same undifferentiated mass that because the evidence presented on a repertoire harm was so amorphous and so general and not tied to any thing specific to eight year eight a what brand yooper andrews were doing the court's rejection of irreparable harm for across the board under the under the normally difficult standard we think applied to them as well and also under the schreier case it would be harmless error if there is support in the record for the judge's decision even after using