and at the s p c in this case was bifurcated into liability i e was the contract breached and damages we tried the liability part didn't get to the damages par but according to the situation from the board we lost on damages and we don't think that's the correct decision we i don't think there's any dispute as we set forth in our brief that there was confidential information during the contract that was marked properly properly marked because there was no protest on the mark during the time i asked him is hom right questions are yes with that we get to the question of harm and the entire decision is based upon we don't find liability because the invention was not very useful we don't find liability because eventually was not profitable all the reasons why the court ruled against us or based harm was also testified to at trial referring to this document that was entered by the government as here is harm the the agreement between the government and counsel was that we don't need to bring in rd party witnesses because there are a number of rd party would just as we testify to the quantum of damages if we could establish damages which is why we were trying to make this argument to the board you didn't make the argument to the board d that the powell letter disclosed at one hundred and fifty six thousand one hundred and fifty seven established harm you didn't do that didn't make the argument you're asking us on appeal to accept that this letter was the proof that you proffered of harms the court shouldn't have found against you on that point you didn't make that argument we submitted this document in the testimony to the court below that was the harm of it again it was bifurcated it was not we didn't have to prove what the damages w if you look at my brief it starts on page ten of the brief for the judge talks about mr powell the rd party not being there what's in the document is correct that we have we were damaged in the court well actually government objected mr powell is not here this is really moving into the damages space we agreed to the document had to do with the damages phase but also established established and met the standard which is the exercise in liability is not merely academic that's the only standard we had to meet in spite of that case law that's what's that step or what we were surprised at was when the board runners decision saying we don't we find that you have not shown sufficient value you have not shown that there is a good market for this and that what he went on to say and we cite in our brief that in our reply brief that because you have established when the board cites to the fact we put the powell letter in there we put the testimony of mr walker stein and we said that's the damage with the board said was yes but we didn't prove that the investment of the five million  company would have produced a profit some time later by selling product the board was well aware that we put the five million dollars last investment in as a heart and they analyzed it but they went again into damages whether or not the five  would have or would have turned a profit later on due to sales is quantum of damages it's not makes liability not an academic question and that's the standard that we were operating under and with the understanding as judge peacock's at the very beginning that hearing this is a much less formal hearing and you would have inquired and we had many discussions on the record with the judge about many many things that were less formal and this was an agreement was not to bring rd parties in disrupt their businesses destructor lives to come in and give testimony until we got to the damages phase so it was accepted that this was an issue that shows that there's a real harm there all question also questions of whether what disclosed in the post was proprietary correct and that's because the board never want and decided what the package of rights were if the package of rights were limited rights than the proprietary nature may or may not be a relevant issue because these were restricted rights the proprietary nature isn't actually an issue in sight to the code and i can take a long time through that here but the code says if you already had it and you believe it's proprietary you market is proprietary and the government can't tell anybody even if it's not proprietary didn't the government shell the poster to the company and with some changes there's that confusion there were three total of three posters ok it was a poster that was going to the closed door session for the intelligence committee that was sanitized poster which took out most that information with a back and forth between mr walker's and the government the government recognized those things that mr walker's find said proprietary took them out for the sanitized poster and then another government employee in the same group you do the poster to go down to florida for a very public display and that individual took the the private confidential poster and brought it to florida not the sanitized poster that was that one in florida was a slightly modified version had a different header on it that's why i say three posters the same information that was a restricted need to know only intelligence committee poster that he took down florida displayed so there was no one there's no dispute in the record that the things that were splayed in florida were marked by canvas and the government's told not to display that publicly the arguments that are made defense of that is well it didn't matter other people could have figured out it wasn't sufficient to build a device a lot of arguments that have no basis in the statute statute says you're signing a contract the government is signing a contract with a small company the government gives the money to develop something to help the government and in exchange the gov they have to tell the government information but in exchange back for that is the government promises not to let that information become public and the government breached that promise they breached the contract liability is not in dispute it at least harm them in that they lost five million dollars with the funding and we should be set back all we're asking is to be sent back to the damages phase because we've established that they breached the contract there's not a dispute that they breached the contract everything the board said was not only to breach the contract they said it didn't matter it didn't matter because you might not have made a profit on that five million it didn't matter because other people didn't buy some from somebody else it didn't matter we were in the didn't matter regarding the title meant other didn't not reach a final conclusion as to whether there was a breach bigger sleep dispute that there was a breach in fact many of them the findings of fact that the board me would be incompatible with a finding of a breach for instance the board found that they had made findings of fact that showed that they did not use the proper markings consistent with the paragraph of the contract on which they were high another another aspect that the board found was that that the technical and the reason why was because the information was made publicly available it wasn't a private terry and and all and with regard to the powell statement to be very clear about that that was never offered it was never preserved below because  below the war below did find that the price marking did not exactly comply with the statutory requirement but as the more also found that if there's no compliance the contracting office have to say there's no compliance and give you sixty days to curate so the more also found the contracting officer never gave the sixty days notice so they accepted it the technical data was not generated in the f b i are we showed that it was done in an earlier project or earlier phase and in the proposal for the s are the technical data was already present in the proposal from public availability again that's one of those issues that were accepted by the board that is not it's not an excuse it's not a reason why the government trade secret and it's no longer a trade secret this is a breach of contract place case the government is contractually obligated not to disclose anything whether it's publicly known or not there's no publicly known exception that there's no fundamental principle of science exception that they also that the board also found no publicly known exception so the other reasons why there was no finding of liability are also not correct and they also go again to the failure of the board to even make the st finding they had to make which think they admit in the in the decision they didn't bother to make the finding of what the bundle of rights were if there's three factors that a court has to consider in order to willing your favor and only considers one or two of them and fines against you isn't that enough well if that was true that each of the factors was an exclusive factor yes but if the other two factors depend upon the st factor the no that's not correct in the very very complex area of contracting  contracting contracting in general the st step you have to determine is when were when was the the material the the proprietor of mission developed before or after the contract was it included in part of the pose of a contract decisions addresses at the very beginning saying we didn't find that if this falls in and we believe it does the restricted rights category then the technical data generating the s p r is an excuse the public availability liability determination and that would be a sufficient reason to affirm the decision right arm you're required to show one to establish liability or asst acquired to establish that the issue of liability harm part of not merely academic and we cited the case law that states that were not spit what is your evidence of harm that you proffered is the failure of the company to continue on which was testified to because of the lack of investment which was testified to which is the power issue but none of that was introduced in any of your money thing in this case and you didn't introduce the powell letter it didn't i mean i don't know we  a it was an x during is miss mccarthy wrong when she said you had two rounds of briefing and you never mentioned the five million dollars you never mention the palin letter you never meant to mr pelz testimony in any of those rounds of briefing she long when she makes that bar license confident that you cited it because you just said we cited it to know when i said ms mccarthy says it's not cited anywhere in any of that briefing and you responded affirmatively without a moment's hesitation no we cited it so is that nine months and i can assure you that we discussed it and i showed you the transcript with the judge who accepted that it was what it was an issue that established but did not want to go into it because it went into damages if you look at the transcript we cited we tried to explore that further and the judge said the peacock said that's a damages issue we're not doing dealing with damages issue we're only dealing with the liabilities issue thank you council we have your argument before you sit down i think you would produce the gentleman at the table as a client rather than counsel that's true that is the counsel table not for clients i state that for the future i didn't want to mention it before and disrupt your argument so we'll take the case under advisement