seventy three today twenty three years oprah has the searched and develop the use of microspheres for the delivery of release a pharmaceutical isn't the human body micra feared microspheres are particles substantially more than a millimeter microspheres pharmaceuticals deliver medicines by using microspheres that are injected into a person they travel throughout the body in a time their release over a sustained period of time this science in the research and development of safe and predictable microspheres pharmaceuticals is so extraordinary difficult that the science requires many years of trial and error it requires extensive clinical studies over one day i'm sure y my question to you is have they accurately described your position that you're not you knew not take the position that these things were improperly acquired the secrets that's one that's not accurate tell you why so was then then explain what the wrongful acquisition step was sure there are two here right so you have the st wrongful acquisition which is the parties this is oakwood and want to do in the future so there was a wrongful acquisition at that point because the they were taking it for a different purpose than what was intended in the party's confidentiality agreement and if we were reading into it we would have a holding that says that that say i mean everybody who enters into a confidentiality agreement for business venture doesn't get protection if the venture doesn't take off and then they go later on the other side who gets the information and goes and competes with the information fashion doctor phil had a right full ability to have that information when he was a loyal employee of the company but once he left he was not able to disclose it to rd parties so when d and there must be communication of the information to the employee those three are not up for any issue on this appeal the remaining three are right disclosure by that employee breach of the confidence the secret information was acquired by a competitor with knowledge of the employee's breach of confidence and the secret information was used by the competitor to the detriment of the plaintiff what was that clip where were those issues put those were planted in the complaint that could take you through that paragraph by paragraph abruptly the discussions for the joint venture and then doctors the new life the oakwood tells him he's going to go into an area of science and pharmaceutical technology that did not involve microspheres systems like knology so you can take that inference of the projects product two of which were from oakwood and in other words within two years of hiring doctor thenew our movement was able to announce that it did what it took our what it took over twenty years do one hundred and thirty papers coming back on that point about you stole our trade secrets the response from the after least as i understand it has been you've been all over the opposing parties it's own business secrets and technical secrets on the basis of an assertion that you stole my quote secret without identifying with specificity what the secrets are so have we come to rest do we have an agreement and understanding is the court approved some statement about what is the trade secrets that we're talking about here it has your honor get to the next stage before discovery starts you try you you exchange the trade secret information but we had dental by the trade secret in the complaint in one of our complaints it was sealed i think a motion to seal still pending before the rd circuit on that we certainly don't want that information out there for the public but at the end of the day the district court found that oakwood does have protected trade secret interests in what it had filed and with respect to what the opposition does in their rip opposition brief is a little  they'd look at one form suitable over another pharmaceutical but i think when you look at microspheres you've got to look at it like a bus in a city right people get on the bus the bus goes forward and disperses those people throughout the city right and the people on the bus could be a metaphor for the pharmaceutical that's injected into the microspheres right we're talking about the transport system here we're talking about the bus so whether it's liberalized a peptide this tide or that tide it's all about the microspheres the technology to move the medicine from point a to point b and the time of release which took my client twenty years to do and so when you look at this knowing that there's a treaty because the district court already said we've got a trade secret now what would we have here we have all of the smoke which probably a little bit of fire a gets past  door on the low bar threshold of the pleading standard that's what we're trying to do is get into discovery but how it's common sense dictates that it's takes me twenty years to do that and you know and your and your assertion is they had nothing before doctor it's a new within a relatively short time after doctors to do their announcing microspheres product best but that's is that the whole of it is i mean do you have your your assertion of use depends on the entrenched that that's just that's the logical inference that's the best logical inference are or you know they're there are you when there certainly are a few more inference is number one he lied about telling us where he was going what he would do why would somebody lie about your inference is he was going to do something improper nd he was responsible and or a been developed for r n d injectables if you look at his linked in page which we and he was hiring all personnel tremendously microspheres technology in building the technology and i think even more compelling then than that is yet the two years that transpired over our two thousand and ten percent of the time you're talking about to do what what we had done at at oakwood and then you look at that and you look at the fact that they're doing that microspheres research at the same exact facility that doctor thenew was working at in dayton new jersey judge we get to the point where and they built that facility and a team around him those are all inferences that would lead somebody at a police agency yeah there is a lot of smoke here that gets you past the threshold if i look at defendants public announcement that it has what we have significantly reduces our ability to partner with other companies raise finance and develop to develop our own products or or derivative products from from investors and folks who now  deem our competitive advantage materially diminished as a result of the announcement that being said again we could we can avert damages here pretty generally which we have the complaint with the that that's an issue that's at paragraph eighty eight need seven of the complain it's linked to that usage it would permit relief let's let's let's start with use we've just heard from mister barry and we've read is papers on behalf of his client and there are you know i will that justice but i understand you say obviously they're using it because nobody goes from zero to sixty in a nanosecond the way these people did in a highly complex area and they did it clearly on the back of the trade secrets that walked out the door with the new why why isn't there a reasonable inference even if you're ultimately able to fight back effectively at summary judgment or trial stage why isn't there a they're right now everything they said i'm only trying to get you to respond to what i understand their key point to be in which you've had in your briefing you say they haven't said anything about use i hear them say in in front of us and read it in their briefs they had nothing before nothing in microspheres technology doctor syn new left us he was our head guy on it and within two years they were able to say we've got more products coming to market they could not have done that without using not just having but using our trade secrets now respond to that why is that not a fair inference that this goes to the open allegation of a truncated timeline and i think the relevant complaint here is a rd amended complaint which was announcements lays and still trying to develop some kind of a product so the idea that it's still very much still very much fast tracked very much fast tracked as opposed to what oakwood had to go through well the allegation certainly is that secret they say the proof that you're using their trade secrets is you're telling the investing public you have made substantial progress on this and you're about to do some great things with it and they just say that's impossible without having stolen and used our trade secrets so that's the that's the i mean yours sounds like what you're arguing is what they're really you can there's another reasonable explanation but is that the standard response to apply here isn't the standard supposed to be every reasonable inference in their favor that that is the standard your honor believe we think it's helpful to look at this question through the lens of harm and how the how the allegations of abuse would make a showing of harm that we're just reading the complaint in and giving them the benefit of the deaths of speak right now they've been hard the the allegation of harm is in the complaint is limited essentially to this fair one sentence allegation of economic harm in the form of alleged loss of investor interest in some way but when pressed by the district court on this questions over what it was only able to provide any sort of meat as to specific investors that lost interest pacific cygnus partnership there are a lot and so at this stage and maybe so maybe you'll in that summary judgement we're talking about a motion to dismiss here the standard of proof is plausibility why isn't it at least plausible that having lost a significant competitive edge they would lose investment interest why isn't that at least plausible we would think your honor that they have to allege some tasks that would make  about harm and really if we assume that you're using it then why isn't the justice relief pretty straightforward you discords all the relation and you're precipitated from using it in any fashion your honor we do think that it ties into the concept of you and that is that oakwood would have to allege and and be able to identify you know how oral bindo is using the trade agreements to remission so that that usage would be would be prohibited it and it is worth the legal stage all hold on i'm just i'm mystified by region something from the from the district court's opinion this is page seven of the district court's opinion a seven in even had oakwood sufficiently alleged a detriment to harm the critical missing component is any allegation of precisely how defendants misappropriated playing a street secret where does that come from where is it anywhere in the federal rules of civil procedure and the defend trade secrets act or in the case law of this court that there has to be stated with precision how something was how we treat secret was stolen point right and in fact the district court acknowledged that they had done that correct that this record didn't adequately identify yeah ok so and and they've laid out in detail these are the things that we how if we if every reason bill inference is drawn in their favor the allegation being made that they had nothing before and they're on a super fast track to development now does not imply use that they said it in print they said well that's been had nothing before or and now they're about to release something it took us twenty years they're doing it in a fraction a small fraction of that time so you can say they're wrong but how can you say they have alleged  and a statute that says even the disclosure enough is itself a violation of then given we have to recognize too that the use for example in the development of the r and d even if it doesn't ultimately produce a product but the so so you're saying that the fact that it's already happened means it can't constitute harm that's compensable under the d t s say what the what what what we're saying just starting is that because of disclosure has already happened at this past disclosure you're still using it you're using it now and you're using it to their competitive disadvantage then and someday when you show up and market you will be  competition with them is that is that a bridge too far to say it's harm to them now immediately today for you to be taking advantage of their trade secrets to develop a product that that constitutes a real harm now whether or not there's product on the market or not the very fact that you are accelerated in your development of a product constitutes a real continuing harm you're saying that's this complaint if if there was some allegation so assume assume for the sake assume for the sake of argument that we believed everything they said we accepted it all as we have to at this stage your legal position then is they have to wait until you complete your research and have a product ready for market and go to market and then they could get an injunction but they're powerless to stop you from the development of the product using stolen trade guy and you hired him to steal it and he stole it and you're using it that that's the basis on which we're having this discussion we have to assume all that's true for the purpose of this argument we're having right now and your legal position is we can steal it and we can use it and you can't stop us because the disclosure happened back then it happened when we st brought him over so too bad we can keep using it and we can use it until we develop and release the product and you can't stop us fact that would support reparable are armed and not be remedied by damages or in some other way or they have to plead economic damages a basis for or relief for economic hurt and your assertion your assertion is they can't print they can't argue irreparable harm because nothing's it market and and of course if something were to market it assumed you'd say they can argue irreparable harm because their damages and you're saying they can argue damages because nothing's at market so they've got nothing that's that's where you come out right your honor that what it necessarily means to be some launch of the product there could be some more concrete and to shut up the product being launched whether that is regulatory approval or submission for regulatory approval or other other in dishes that could support that kind of conclusion about advertising what about advertising that are there on the brink of the product market that they're on the verge of release respect your honor that is that that is not what the investor call that is not the allegations here on this complaint and the investor call that aren't there but that the statements in those calls are very general high level sort of order looking we are trying to develop this product we are thinking of it and as the as it remember the develop over the course of many years and it's not as mister barry suggested it is a two year certainly if there was an allegation that there was a submission perhaps the approval which opened alleges would then trigger something like a twenty four month timeframe before there could actually be approval that might be that kind of allegation  points number one we started about a half dozen cases out of delaware new jersey in the eastern district of pennsylvania that says a claim does not need to make out specific allegations as to exactly how events used were disclosed plain trade secrets and the reason that is because that information is solely within the defendant's hands subject to discovery so there is no way for me to sit here and tell you exactly how doctor thenew and  used or bindo used the confidential information but that would be fleshed out and discovery with respect to the use you have a one hundred yard dash in the starting from the seventy five yard line i don't think the law is that you get an injunction only when we get to the eighty five yard line and we don't even know how far along they are but we do know that if we look at the complaints at paragraph seven hundred and seventy eight through day we talk about the financial calls we catch them to the  the transcripts as exhibits to the complaint and it says the next year they're going to be filing for f d a clinical trials that they're getting close to market it's all in the complaint there combine that with the fact that remember this is not only a misappropriation of trade secrets case but we also have a breach of contract case or does violation of that n t a that we signed at the very beginning of the parties relationship and so the lower court dismissed that breach of contract case because it says well you need to id you need to have the trade secret in order to have the misappropriation in order to have an order to have the contract claim but that contract specifically permitted injunctive relief as well and with respect to a point the judge krauss had raised with respect to reasonable royalties we d