other mechanism to implement his ideas into practice he did have a drawing at the district court described as crude aspiration and we understand what the facts are and what you're arguing is that  quality what kinds of keys in texas or indeed elsewhere have held that idea which is a value which was this one was found to be and not known before case because that we think that's closest on point because you just report which was affirmed by the fifth circuit for the reason stated by the district court in a per curiam opinion and so so the fact this circuit has adopted that view of texas law in that case what the plaintiff had was an undeveloped plan to get data from solid rocket engines using fiber optics he didn't have any my recollection is that what the court said was situation any grand summary judgment judgment as a matter of law that rule in astro technologies and gonzalo is consistent with the rule in every jurisdiction that applies the common law that's been cited by either party and the reason for that is of the common law requires the plaintiff to use the alleged trade secret in his business an idea alone wouldn't be used in business in can't be used in business it doesn't have commercial the bottom line though is that there is no case under the common law in which an idea in the abstract form that dr bianco has provided here has been held to be a trade secret it would be unprecedented it would be new water and i should industry which is to enter into a contract with quote that would cover his idea and provide him with reimbursement if the idea was you he presented a contract plainly jury and the jury rejected it there was no contract to cover of this idea claim that he prevailed on and with respect to your honor's it was a square peg trying to fit into a round hole a trade secret is not a new product idea the reason that all the dr bianco had was a new product ideas because his entire theory of use in this case depended on it he couldn't show that his drawing itself was used by anybody on the design team lotus and he admitted that a trial his drawing was never communicated directly to anybody on that design team all he could show is that the self had been told to globus that idea cause the spark the inspiration the motivation for globus to then go back and come up with its own features involving the drawing the few things about the features first of all it doesn't that we don't know what they are he's never behind the district court has never defined secondly the ones that he had describe idea which is depicted in his drawing the trial presented a complete combination of publicly known elements that he said were comprises trade secrets there was an alternative trade secret he suggested and neither the district court nor see have relied on that complete combination of trees of elements after the jury verdict the district court didn't rely on it to uphold it and he hasn't relied on  this court so what bianco is trying to do is to pick and choose between the publicly available elements that he said were part of his trade secret and he can't do that there's no evidence that any sub combination of elements was not also publicly available so that doesn't support the district court verdict or the jury's verdict like to turn quickly the damages the problem with respect to damages here was that the royalty that was awarded by the jury for no relationship to the value of what dr bianco provided again with dr bianco provided was an undeveloped unworkable idea that took required if there were others involved in the genesis of the idea and he admitted that there were no he didn't know a portion of the bates it's clear that others were involved in the genesis of the idea so there's an immediate red flag there they were left with the r that it was even arguably comparable so it's a great weight of the evidence which is the standard that applies to that determination was in favor of the point five to one percent finally your honor with respect to future damages there is no authority under texas law to support an ongoing royalty in a trade secret cases simply never been done before  ultimately you mean the district court ultimately settled on a fifteen year royalty based on again non comparable agreement he was looking at agreements that had a point five to one percent royalty rate those had a fifteen year t  allowing such a royalty is that the trade secret would not have been discovered by someone else during that fifteen year period and i don't recall that there was any finding   this became disclosed upon the issuance of the patent so we shouldn't extend the royalties that doesn't seem to me to be the bands are quite different was or what i thought was pretty well established in the trade secret contacts that you didn't you wouldn't be compensated for the trade secret beyond the time when it would have been discovered so why isn't it necessary to make a finding in connection with a trade to go where there's an ongoing world view that the trade secret wouldn't have been discovered before the end of loyalty your hero that's not the rule  circuit's decision insights which are cited throughout the the briefs and what that what the court said is what we would do is we would look at a hypothetical negotiation and certainly it would have been the case that at the time they would go she did the same they would have negotiated it for the life of the product and therefore it even though it would have become public sooner than that we're going to all word the royalty as if it had been based on a hypothetical negotiation that's the stakes case it says that explicitly and we sp that in our brief and so i think that's the best authority under texas law as construed back by the fifth circuit to allow for a royalty that extends beyond this head start period that would go for the life of the product and i think if you look at  other parts circuit precedent for example university computing it creates a broad equitable authority for texas courts to be issuing fashioning remedies now don't we generally as as in the case and courts in equitable the damages can be speculative partly because you have to project it out for a certain number of years and says let's be flexible and imaginative and in particular university computing says we can look to patent law is a fifth circuit case we look to patent law for that because you're actually going to multiply the sales of the product in any particular year and if they happen to peter out before the life of the product then there isn't any royalties going to be collected there is not a single case in texas law that carve out an south texas supreme court decision is often the remedy in these cases is a perpetual a permanent injunction even against the use of the trade secret even after to go to your first question even after it becomes public that is high the texas supreme court case which is what it is a permanent injunction in a trade secret cases which hyde that is routine in texas created secret cases is ok then certainly a more measured memory remedy of an ongoing royalty should be ok the second data point i would point to is again the psychs case which recognizes a life of product royalty this is like that but instead of doing a lump the which has the problem of it being too speculative because you have to predict fifteen years out what the sales going to be this is a more measured computing provide ample authority that shows that the ongoing royalty a word here is well within the province of the court the third thing i would point to you on that is uniform trade secret act now clearly this case is not directly controlled by it because the explicit provision that says an ongoing royalty a word just like the one worded here is an acceptable form of relief because it is a lesser included form of the permanent perpetual type of injunction the texas courts have long recognized and again hyde is i think the best authority for that now on the ongoing row to the other thing i would point out is that this that this remedy all along the first time that will be subjected to this as a permit  other objections as to why you shouldn't do an ongoing royalty the head start theory and other things but the first time that they objected that this was beyond the scope of the story of the court where at the will fifty p hearing and here is what actually the  proper compensation for past injury in evidence on which it was based prolly support globus argument that monetary relief in the form of an ongoing royalty will provide full compensation for any injury attribut the first assertion being that texas law categorically excludes new product ideas from trade secret protection and the second being that dr bianca's trade secrets here was in fact limited to a mere abstract idea neither assertion is correct and i would start with the second one because i think it virtually obviate the need to address the first one as a district court confirmed that this is clearest dandan pages one twenty three one twenty four of the district courts will fifty be opinion essentially been litigated as a product design and that is the protectable trade secret here and it's interesting and let me say that we set out some of the features and put no date but the design features are not limited to those  appendix leaves out numerous design features beyond of the core idea of a continuous to continuously expand the ball contract a ball in her body space or it lays out several significant features and let me just enumerate some of them for you to be concrete actuation of the implant via a rotating screw mechanism to an extremely triggered locking mechanism so that the implant will lock in place when you remove the instruments to read a dial with markings to the level of expansion of the implant once it's inserted and you can see that on the drawing and for even though this is not on the drawing this testimony that was it was communicated to globus that the time that the spacer implant be made with the center of t um to provide enough strength so it's not just a smear abstract idea which they continue to characterize and mischaracterized the phrase secret but as as the district court recognized it was that idea plus these other they're there they're providing two extreme characterizations of the trade secret of course the truth lies in the middle and at least the jury was well within its province to look at the evidence to look at that expert testimony and find that there was screened this is not the place to retry the jury case now as to the first issue is if there is any means i don't think there is to resolve this question of texas law as to whether whether texas product ideas i think the clearest authority is not astro technologies which is a district court decision which was affirmed in an unpublished non presidential one paragraph opinion but it is in fact like a published fifth circuit decision and on which they now live that it has to be used in the business and that once it's used it will become obvious the pronouncement can hardly be clear it categorically rejects richter as not as stating a possible rule that's followed by some jurisdictions but not followed by texas and in fact if you look at the restatement provision which they say pages twenty seven and twenty eight of their brief that's a restatement third of unfair competition of section thirty nine comment they cite the first half of that comment jurisdictions draw a difference between new product ideas and trade secrets but the next sentence which they don't quote is other jurisdictions however disagree and then if you look at the reporter's note in that thirty nine it's pacifically says here are the jurisdiction that reject that clear distinction between trade secret and product ideas the first case that site is site the published best circuit decision so i think it's well recognized both within published fifth circuit law and within the treatises that describe the general rule that they're describing and discuss and describe texas as falling outside of that general rule i'm happy to address othe not be a trade secret here all we have is an abstract idea there's nothing that's workable in the device there's no design there is no prototype all that value was created by globus in as what dr bianca calls in response element combinations that mr that dr bianca relied on at trial and it's critical no that it was the entire combination that was described as the trade secret very explicitly pointed to eight seven zero one six spacer that's the important thing is that so it's not any one single feature no with paul they all come together the reason that he had to rely on the complete combination of elements is because they were all publicly available he couldn't rely on any s combination and there was no evidence that any sub combination wasn't publicly available it was a complete combination that was one potential trade for the other problem with that complete come initially is that as dr bianco admitted there was no evidence that it situation we argued and put evidence before the the district court about head start that the royalty should be limited to a head start period we think that you're exactly right in that questioning the evidence supported of more limited royalty period be on the trial date than fifteen years in addition your honors the underling royalty applies to any products that are not color really different from caliber and right what dr bianco has done to essentially preempt all development by globus into any expendable basis and he's done it based on a two page design that the district court described as aspirational crude and unworkable that is not the law of texas trade secrets if the court were to hold this jury verdict in the poll the judgment would be the first time that a mere idea has been held to be a trade secret and under texas law and the first time that an ongoing royalty has been applied in the situation we