in order to be justified for the extraordinary relief of a policeman ery injunction actually cure had to do three things at the hearing and had to identify what was provided to the defendants and had to identify what was taken by the defendant and then it had to show that what was provided and what was taken where in fact trade secrets to cure failed on all three fronts that start with access the district court cited a few pieces of evidence to justify its finding of access but none of them support it in the finding of access the district court cites a series of distribution agreements between at trick your and various companies associated with dr mom but all those distribution agreements contain our standard a language saying that confidential information may be provided if confidential information is provided it's to remain confidential there's nothing in those agreements that actually identifies what was provided to the defendants now in order to fill that nuts is that is the quote that's so memorable from there but i'm cross examination that mr saif admitted that he didn't really know what was provided to the defendants and you can find the cross examination page i even know about it but what he did do was just like mr cite he admitted that he had no knowledge of what was actually provided to the defendants in the case and you can get that admission page id eight hundred and forty eight to eight hundred and forty nine so after all of this talk about soup to nuts being provided there are only two items of information that remain that were provided to dr munger med's unit in the case and that is at page id one thousand six hundred and eighty nine mr s talks about instructions for use but it's clear from his testimony that the instructions for use are public information of the instructions that are provided to the hospital to the doctors in order to use these publicly available products and in any event there is no there's nothing in the record that the actual document instructions for use appears nowhere in the record so there's no support for a trade secret finding with regard to that is to put ice could i can i interrupt you to just ask more of a threshold question this is coming to us is it not in connection with the preliminary injunction that's issued by the district court it is your honor they have got to the merits well there they have to show a  evaluate that any differently in light of this being a preliminary injunction phase then perhaps the standard that would apply on review of the jury verdict at the end of the case that well certainly you don't engage in balancing of evidence weight of the evidence kind of kind of issues that's it and you wouldn't do that in a review of your jury trial at all but there needs to be some evidence supporting the finding  of likelihood of success there has to be something in there that at trial when this evidence is shown to a jury that there's a likelihood that the jury will find for the plaintiffs in the case so it's not just a trust me you honor by the time we get to trial will be able to support this they need to provide at least a quantum of evidence that would suffice for a jury that would be likely to be accepted by a jury trial sample is sold to hospitals all to doctors so this is the clip itself cannot qualify as a trade secret and any information that you would get from reverse engineering the clip can't qualify as a matter of law as a trade secret which gets us to the district court's findings of use those findings are just as unsupported as its findings on access so that you side the district court cites testimony from  witnesses where they say they heard dr monk confess to entering into competition with that trick year and even going so far as saying that dr monk confessed to copying their clip and copying their class but again these are publicly available products so they they themselves can't qualify as trade secrets and anything that you get from observing them can't qualify as trade secrets but when the district court justifies its finding of use it talks about conspicuous similarities that's a quote from the district court's order that were apparent by quote visual examination well those kinds of things as a matter of law can't justify a finding of likelihood of success on trade secret misappropriation  client we see tech technical documents that we needed to obtain permission from the chinese government that was mr sites testimony where he said in order to get the china f d a approval for these products they had to be provided documentation but then this or saif admitted that he didn't know what the china f d a requirements actually were and what was actually provided to the defendant so the question is is there any evidence in the records showing that the defendants received confidential trade secret documents and there's nothing in the record that would support that but they acknowledge that they did right your honor they did and there was be the only information where you can get that from is in the distribution agreements which it knowledge that confidential information may be provided and that any confidential information provided needs to be protected but there's no there's no admission from anywhere in the record of them actually receiving specific confidential information there's just inferences from the relationship but then when it actually came time to prove it that the and that what we say here is that the district court just didn't have the authority to enjoin activity in china and the place to start is with the steel versus all of the case from the supreme court which recognizes as a general proposition that we presume laws don't have an extra territorial effect here we're dealing with ohio's uniform trade secret act and there's nothing in the act itself that suggests that the ohio legislature wanted these laws to apply extraterritorial but it doesn't have that blanket rule no extraterritorial application and less explicit and seventy four dollars and it talks about the presumption the legislature having no extra territorial power must be presumed to intend to confine their operation to institutions within its jurisdiction so this is a general rule of a that it applies generally and there's no indication that you know even if you don't have a presumption in ohio there's no indication that they intended the law to apply overseas what kind of protection with this statute actually why him well and and if you look at the commentary surrounding the federal trade secrets act your honor you'll you'll see that the federal trade  congress recognized that the state laws were limited in how they could address commerce especially the international world so there is an avenue for them to go in the federal trade secret act and in fact the motorola case found that the federal did have extraterritorial effect but just to summarize that detest the court should've applied is in vanity fair mills versus eaton where it talks about a three factor test where you take into account the citizenship of the defendants the effect on commerce in the united states and then the potential for conflict with foreign laws and if the court had applied that standard it would have sprecher dies that  injunction in china is improper there's no question that the defendants are chinese citizens chinese corporation there's now it's interesting actually cure says the district court found like i'd like to go back to gender white's question because it seems to me you still haven't answered if you've got a male heigho statute that protects straight secrets somebody allegedly steals those ohio secrets they're going to be used in china it seems to just logically want to one that if  your client can then make sales of this product that's derived from using stolen traits trade secrets that the plaintiff is not going to be able to make those sale so the the effect of this is is likely occurring in china but it's going to it's also going to have an adverse impact on the on the plaintiff and in ohio so what's the point of the statute if you can steal trade secrets but use them someplace else and and a court can adjoined it well injunctions on overseas activity in certain circumstances where for example the theft occurred in the united states the defendant came to the united states or has a presence in the united states those kinds of things those are all taken into account by the test by the vanity fair mills test but here you have an american company going to china signing a contract with a chinese company that has chinese choice of law chinese arbitration provisions everything occurs in china and so i'm not saying that a chinese company can never be enjoined by states court but you need to look at the factors that the precedent sets out and here are all the factors china but those kinds of concerns would go to personal jurisdiction and it's we're not talking about a personal jurisdiction issue that in fact the vanity fair court noted that there was personal jurisdiction over the defendant but still extending u s law into canada under those circumstances were improper so so there is some atmosphere exaggerates the contacts with ohio but even if there is personal jurisdiction which we contested but my name is martin meadow and together with my colleague cameron fein we appear in the appellate court on behalf of the trick you are we propose to address three issues today one trade secrets do they exist here too where they misappropriated and three whether the scope of the injunctions appropriate as i commence let me observe that the characterization of the facts that was just related to you is if you will appreciate from our point of view inaccurate and it doesn't fully take into account statements made in the orders of the court or the evidence a lot of the th circuit with respect to the state motions found that that same problem existed in earlier papers filed by  turning to the question whether there are trade secrets here it's apparent these are the kinds of things that are often found in the parlance of our courts and the legal system with the the issues hand if you look at page eleven of the judge's order you will find that he found as a matter of fact a judgment keep this goes to your question about the standard of i thought the crux of the argument here is that those findings by judge bear that were not supported by the evidence in the case is that the issue first the issue is whether there's a buse or clear error or mistake and that it would be very difficult to come to that conclusion with this kind of hearing more to the point however my colleague focused on one set of testimony but didn't go into the other six witnesses at any length but with respect to access which comes up with mr preparation but also goes to the trade secrets he came to ohio he visited the factory in mason ohio he was provided with inside information on the construction of the product and how it was produced and quality controls and all of that and he did it on more than two occasions he had his national sales manager is based in minneapolis minnesota so when you talk about what's in the record sam privet tara testified for a number of hours then we had an actual demonstration of the product in which cream of a prima tara and the nurse were subjected to cross examination at that time to show how it worked and the lesions that could be but on human heart tissue which you'll appreciate comes in different fatty conglomerations of tissue so how this medical device works is very high and it's in open heart surgery and in a in a place in mode where you are putting lesions and or burns on one skin and creating scars of the improper elect electrical mr among her meds or one of these other entities and that that would not be apparent from observation or just discussions with it so there is there evidence in the record that the  that we do not have all of the evidence because the judge mckeague pointed out read the preliminary injunction stage and of course we had no disclosure or evidence provided until the day of trial in the form of affidavits and mr clamps and other devices to accomplish the of lation now the algorithm provides literally real time feedback on the depth of the scarring that's placed on the done is it tried apparently to produce the power unit and the algorithm it sends you don't know this with a manufacturing unit separate from itself  in shanghai they were not it seems able to come up with it we don't know this for sure but they had they came up with an ad out there so that they could try to plug in if you will to the algorithm with the clamp that they produced two or three critical issues here one no testing of that to make sure that that adapter does anything with the clam all you have testimony in the record about deviations in power or millimeters th of an inch on the clamps can be misread by the algorithm and that's and trying to get that to marry up with their clamp or pan or whatever other interest or product they've copied so that that's a question of use in your misappropriations claim doesn't doesn't the fact that they they couldn't make their own unit work and they had to use this adapter suggest as jones calls asking you that they didn't get the algorithm it may you're correct we don't we don't know all the facts just yet but it may suggest that that they don't have the algorithm but they are definitely trying to misappropriate and steal as you suggest that trade secret in its substance i meet you from the machine but that doesn't take away the notion that the other medical devices functional medical devices have been comp beat here and the judge found that they were in fact copied so we have drawings that have actual specifications down to millimeters on the depth of that and chin the metal what kind of electrodes will be used how all of this will work  being delivered to months so now my opponent argues wall how does he get access what we've already talked about i mean common sense would have to be left at the door for any court to conclude he didn't get access then he gets them in china we have as my opponent says confessions we call those admissions he said he copied it that's important we copied it that tells you it didn't just get it through reverse engineering that's that was testimony that was put on mr monk chose as i said earlier not to appear testify there were others in the rooms both there and in houston in beijing there were even lawyers in the room in beijing at the meetings who told the interviewer personnel that it was copied now again we're not addressing here or or in your opening by my opponent no discussion about the c e o mr carroll and his meetings with money in amsterdam houston and in beijing and what was said that the problem with this is the least arguable superficial analysis made by the district judge in this case that so somebody says they copy well you can copy things without violating a trade trade secret so i'm not sure where where that gets you and you it just seemed like reading what all of your witnesses said none of them where they said well  must have gotten trade secrets but they couldn't identify what the trade secret was so i'm just telling you as the prelude to my nd question what i'm concerned about in terms of the question of trade secrets i'm just wondering if you prevail on the misappropriation of a trade secret as opposed to the theft of the traits you cannot and i understand oh well i'm not sure that i fully understand i think those are two different things then are you still entitled to the preliminary injunction you got if you lose on the st one you went on the nd absolutely were entitled but it but as to the st point look to the cases out of this circuit with respect to and i'll hartland also look at the lionel trains case the fact that you can observe something doesn't mean that the trade secret has walked free and it's out in the public domain the fact you couldn't see parts of it says judge easterbrook in ip x doesn't mean there's no trade secret there he didn't find a reason a trade secret in the algorithm he said it hadn't been explained so i think that's all that's all true but i just want to ask you the obvious question that's on my mind and that is why didn't you have one single witness that secrets about we told him everything we gave him soup to nuts we let him see how it works which witness should we look at that had done a phys a specific trade secret other than the algorithm or i would something designed drawings if you look at that alone if you find that the judge didn't have a clear error of fact and didn't have him in effect as to justice if he didn't abuse his discretion in these findings and if you find that he said there was testimony presented to him of drawings that way take a breath and so on your products are patented in the united states right in part  that's true so there are there are figures and drawings in patton's so are you contending that he was given drawings that had trade secrets beyond what was in a patent which destroys the trade secret yes because you don't have to and patents disclose all of the various materials involved nor the amount of power remember these are radio frequency you can characterize it as being radio frequency you can characterize electrodes you can characterize the object of the game if you will but a patent doesn't supply you with everything in it necessary because if that were so that every patent filed in the united states would lead to the disclosure of every medical device metron iker anybody else produces and that is not the case so where we're at is we have an age eleven a judge who finds drawings went specifications went materials went then there's when you know that the distributor had access to pricing and to customers and all of that which courts have repeatedly found leads to irreparable harm and here we haven't even paused on the equities the equities are substantially in favor of a true cure here scope  we're down through the last seconds but there are many cases that do reach beyond the boundaries of the united states with injunctions and do so in an appropriate case  here we have someone who's been in the united states a lot you know this from the a g h case this person has had an approach and a play in him which is to twist off medical device exits from the united states and begin to use them over there this court found that he was copying each and every one of a trick yours products that took years and years to develop and millions of dollars you cannot find that that is credible and the judge found it incredible we think you can decide they don't need to cut you off that your time is expired  and mr papias you have three minutes  honor just just a few things educators counsel cited page eleven of the district court's order when you look at the support there on page eleven pm seventy eight paragraph eighteen that's mr sayce declaration and adapter issue that they stole the algorithm using the adapter we've challenge them several times to cite a single case that shows making an adapter for a publicly available product is trade secret misappropriation and they've not even attempted to do that newdow talked about design drawings quote down to the millimeter there's no evidence of that in the record he's the he's that's just statement of counsel there's  citation to the record provided with it and there's nothing in the record that would support it well or would it work provide it with design drawings designed well the question is well there's no evidence they were provided design drawings  which gets me to the other you know that it's common sense that confidential information would be given to these guys to get china f d a approval it's not common sense and it's what you provide to a public agency becomes public knowledge unless it's protected you know unless it's filed under seal nobody here knows anything about the china f d a procedures i know about the f d a procedures a little bit and you know you have to be careful about what you provided so it's not obvious it's not common sense that confidential information necessarily would be given they have to prove it and they didn't finally the idea that a publicly available product can still have trade secrets that's refuted this court's decision in tri state plastic molding jacono versus invacare these cases are you know  legion there cited in our briefs that as soon as it hits the shelves nothing that can be reverse engineered in those products can qualify as a trade secret unless you have anymore questions your honor i think we can put this under