misappropriation and theft of trade secrets and then room remand for a trial on monetary relief for both damages and attorneys fees on the issue of liability i would like to yes render on liability and then reverse reverse and render and then remand the liability question i'm sorry the damages and attorney's fees question to the district courts as we obviously was not reached on the issue of liability i'd like to make five points the st three are pretty quick and that is that the appellant's trade secret is the technology and methods and body and the patent application that's the key to patent application styled x v fluorescents detection the patent application itself says that the quote invention more specifically is a method a system a method of detecting sulfur dioxide is what's key here is that this is a trade secret this is not a patent dispute i think the district court reached the conclusion it did on liability in part because it treated it like a patent dispute as opposed to a trade secret dispute  and and forth they admit that there are technology contains the trade secret as defined in the patent application and that patent application of course the district  agreed that the trade secret is lamps there's four places in the record where they had met some of it was through testimony yet to put some of the pieces together through some of the exhibits the testimony from depositions as well as some of the exhibits and then some of the trial testimony where where they're similar because we didn't need to because the all the evidence was already admitted into the record and i'm going to tell the court this precise pages the pages in the record where the court can find the what comprises their admission of using the technology as broadly differences and similarities between the two xom or lamps which is really the technology we're talking about as well as the schmitz deposition which was eight hundred and twenty two dollars the record and the rig deposition excerpts which was barrier discharge that's a specific kind of extra lamp that has certain components that function of particular way and their patent application packs patent application pages three thousand seven hundred and thirty seven a one as well as thirty seven of three all describe the exact components that make up our eczema lamp and why they are the same when you look at what the definition of the of our technology is as a trade secret and highly fact bound stuff is typically for the fact finder which here is judge and i think the reason why this is a legal question for the court is because of the unique unique way this case got ultimately to the district these two are not identical that's not claiming they're identical it's this is they're not identical the question is are they different that this is not because all on a b are most automobiles i guess there's electric ones now use gas so if i say well i invented a car that uses gas at this is suddenly make it a trade secret so you have to kind of discern i was talking about you know using oxygen which is in the air are we talking about something unique and that's very fact here's why the court can make this clearly a legal din of a question st of all the we don't we don't dispute the differences the three differences that the district court outlined there we can see there conclusively proved those differences being of the emission aperture they call it a light pound i'll put window whether it's the same thing that you should say we don't just get the things right with those things but you were telling us something bigger yes what i'm going to tell you is that the reason this is little question for the court is we don't concede those three different we did we can see those three differences but so that this is to me analogous to an insurance coverage a porter's analysis where the court takes the the underlying  pleadings allegations as true for purposes of then construing the the four corners of the policy determine whether there is coverage this is why this is the same question the same question is because the facts are undisputed the facts are here's the differences the question is looking can string the four corners of the arbitration award the confirmation order and the patent application does do those differences take you outside of the four corners it is no it is you know i'm a car and my statement of trade secrets is this car uses gasoline that doesn't all of a sudden mean that every car that uses gasoline it that that my colleagues car that now uses gasoline is violating the treaty it is violating the trade secret because what we what was defined as the trade secret is set in stone based upon what the ark with the in the language here that judge that the district court also confirmed this is what the arbitrator's decided that it is the technology and methods and body in the patent application not just the patent claims but the entire patent application describes what it is and must and and and so it would apply to all cars so i'm trying to follow i can draw the lines for the court to give some some examples absolutely if you look at pages the tw application describes what they cannot use and what is our trade secret and again it is not any of those things they cannot use other combinations or with other things here's here's what they cannot use a system a method for detecting sulfur dioxide using a krypton chloride dielectric barrier discharge x in maryland so anyone that uses that not anyone just pack because the whole reason this is a trade secret case and not a patent infringement case is because there was a contract between the parties in the early two thousand that said hey i'm going to share you this idea that no one else is thought of and before i share you the details that i just described to this court from those pages until i share  components components of it were not not all the pieces that we put together or whether it's generally be able they made a contract that's right they would use that yeah i think what what we got a patent on is the technology that i did what is the right correct question is let's take the only three differences that judge use found let's take those findings they are set in stone we're not changing the court has to then interpret the patent application as  with the correct question sure the question is whether those three differences take out of take take us outside of the four corners of the description of the technology in and compass this language the above embodiment of the excellent can take many numerous forms and departures can be made from the details without departing from the spirit and scope of the disclosed general inventive concept all about in the language of the patent application and so so long as it has the key components there can be differences the differences with the shape of the inner one electrode does not take you out now if they didn't have an inner electrode at all then it's not accept it so these things are irrelevant these differences it's not a i don't think this an expert issue all that all the testimony we don't dispute it's simply a matter of construing how broadly the patent application describes what the technology basic physics in it that doesn't suddenly make that the trade secret so it's what's unique about this document is what makes it the trade secret not the generic concepts of physics that may be contained in it so you're asking us to say as a matter of law we're supposed to understand that this matters and this doesn't this is this and this is that that does sound very expert to me though even the ones you  i'm looking at it is fairly complex it is complicated stuff and leave scientists i'm the mutation so i would want to hear a little more explanation if i'm trying to decide this and that sure sounds factual to and i've cited to the court the the documents in the pages from the depositions from the patent applications from both sides that define all of this the the similarities that make it similar enough to fit within the scope of what we say is the trade secret it's not it's what is gasoline and what is the color of the car versus what is gasoline in the color of the car versus what is the core of the different it's not a scientific question here because we don't dispute the facts and the facts may be difficult to understand but they don't change the fact that as long as it has those key components it's our technology and i don't want the court to to get  in this case is that the general and and time i didn't do patent cases as a lawyer but i did trade secret cases and you couldn't just show up and say oh this is a trade secret that you just read in the newspaper ok your argument on that is it is a matter of what was in the newspaper because we're we've got this law of the case that makes it a trade secret but i'm saying you still have to have something that's unique because everything is going to have some physics in it in the science world and physics is not a trade secret could i answer the question again uniqueness is not the issue because it's simply a dispute between two parties we undisputed miss is even in the district court's findings we disclose this technology to  them it's not about whether this is a novel idea it was but it's not about that this court doesn't have to decide whether it's new or novel or different or an invention it simply does the four corners of what is the law of the case describing  technology can we fit the pieces that are relevant and that are the key components can we fit their technology into that box and putting aside that those three differences don't take it out of that box because they were they were contemplated in anticipated patent application itself that square that squarely defines the term the trade secret so this court the district court does not have to decide oh this is something new or different cases is a trade secret and we can't look behind and say it's not a really a trade secret because it's not unique enough that's right your honor they've had it's not what i'm saying ok i'm saying that in a document every word in there isn't suddenly a trade secret it's what is this thing that because you're always going to be describing stuff and if you say well i also use water that doesn't suddenly make water a trade secret ok that now there are barred from using so it's just how you used it in what way you used it it's not that there was water that's what i'm trying to say the whole document is providing the information but how we figure out whether that was stolen or not means we have to know what in that information was different and then we can compare it you're just saying we should ignore the differences that the judge found because they don't matter and i'm saying how do we know what we know that if i could answer that question to an electrode in the outer electrode they didn't have those things they're not violating the trade secret thank you may please the court my name is steve knight on there on behalf of petroleum analyzer company as the panel has just heard there are two primary issues in this appeal the st is to the district court probably determined that all stealthy in his company adam failed to establish that petroleum misappropriated his trade secret with its multi track instrument and seconded to the district corps properly award petroleum it's attorneys fees for successfully defending the texas death liability act claim they answer to both of these questions is yes it will begin with  the st after unsuccessfully litigating in the state court whether petroleum should be forced to disgorge all of its profits in connection with its multi tasker instrument which used technology from its earlier version the technology described by the arbitration panel and the conclusion of law on the robot so you go to conclusion of law number five this is what defines his trade secret in his technology what the arbitration panel said and how they describe it is very important it describes not any x that uses krypton clora if it was about simple that's all they would have to say what they said is the technology and methods and bod said is the issued patents or patent applications pending it is important to compare technology in methods that are embodied in his patent application he redefined when the patent examiner said this is too nonspecific this is all public give me more details which is what he did so judge hina simply encompassing that but what i technology again technology and methods in the application the drawings and the issue patent or any amended patent that he that he submitted after it was a really rejected it is important to compare the technologies in the methods and that is precisely what judge he was did even though as you pointed out judge there was not a lot of help in in the trial court from any witness that they presented but even looking at the the the original version of the application of the planes that's what he asked for that's at record thirty nine that's there filing judge hughes simply reverted back to what the arbitration panel found those three things arbitration what i say what judge he was ordered in federal court in the litigation that they chose to file governs but what i'm saying is if you eat it if you also look to what judge hines wrote it doesn't change the analysis because contrary to what they argue judge hines did not recognize as any and all tech summer technology that uses krypton chloride as defining his trade secret if it was that simple that's all the order would say judge hines also wrote  technology and methods substantially identical so he's referring back to the arbitration or two and this is why this is so important in this case as i've already mentioned he described his his methodology in the original patent application  embodying this and you describe the method of how it works when he when the patent was issued after he submitted the amended application he described his technology in even greater detail his technology depends on any mission aperture at the remote end of a course on the book he described the methodology of that emission aperture he says the photons will leave the lamp via the emission aperture he goes on his invention is so specific and so technical that it requires or  es additional technology that's unique it has an internal power supply the internal power supply is critical to his invention because he also has inner electrode comprising of a conductive solid metallic rod why does that matter because when he describes his methodology in the patent and the patent application he says this the method the method involves the electrodes working in tandem with the internal power supply here's the quote a charge will begin to build between the electro as the voltage or strength of the applied field continues to increase a critical point known as the dielectric breakdown is reached so what we know from the patent application and the issued patent is that for  lamp to work it requires his version of this unique emission aperture it requires an internal power supply it requires in inner electrode comprising a conductive solid metallic rod the you need expert testimony on this because the critical claim here is that we stole some technology that they want to characterize as hits the factual dispute is the her a s x m or lamp uses technology that is completely unlike the technology that he developed in functions different it's not it's a factual inquiry and that's the factual inquiry that judge hughes was actually able to embark on despite the meager testimony based on the testimony that we offered similarity they really didn't present any evidence at trial and most importantly he himself during a six hour trial which is shorter than the average car accident truck he declined to testify now  be presented to witness two witnesses in two witnesses only both of them well the district court can and the district court should but even more importantly the district court has every right to examine what testimony did they offer and what they offered was testimony by two former petroleum  things about it that make it unique it's their witness lamp has to sell the electrodes it's putting up the differences and again focus on that patent the patent in the patent application and the drawings all of them highlight so that's why quite frankly it in light of the arguments that we're hearing in the briefing on peel when judge he use said in this is quote jointly report what the parties believe need to be done to progress the litigation well they could have said well we think that the definition of our technology is already defined all you need to do is you know proceed with with the trial instead they said quote judges we want you federal district court in your jurisdiction to quote make it's a small part so the one thing that's interesting is that the test that we submitted which is a record for ninety and this this is sort of part and parcel to the idea that whereas they want to claim chloride that notably says we reached a particular result and were able to achieve this result not based simply on the use of krypton chloride but based on the physical attributes of this lamp that we were able to manipulate in various ways to achieve the appropriate nano meter reading that they were trying to find  the similarities again they'd not only failed to do that the witness is the two witnesses both that they presented supported our position that the technologies are are different in fact i talked a moment ago about mr what mr gaddy said what mr mendez said was even more telling what he said again this is decades a lot of litigating over our instrument and why he wants to take our profits because he says it's so similar mendez detect those details of the land i'm not an electronic engineer he also stated he explained that he cannot discuss physical attributes of the axim or lamp quote unless i perform tests on it they didn't perform any tests on it the only person that may be able to explain something about why they are accusing us of using their chariot trades or by using a next summer lamp that is completely unlike anything that they developed the only person that was in the courtroom who could have filled in the blank was mister and he not only didn't testify in support of their direct claim after we presented our defense primarily through misused and who described in great detail yeah we worked with mr all stealthy at one point in the past one long time ago but when we developed our our instrument with her raises eczema lamp it was completely wall off it was absolutely wall off to even a void the appearance that we could somehow have access to court that's what started the clock for when we can claim our fees and even at that the detailed affidavit goes through the methodology in averaging the grades and all that stuff that you're supposed to do it's a very detailed affidavit and i and this is actually when i  got involved in the case because i handled the hearing on the attorney's fee request and what's notable to me is that they are making or humans here about segregation and whatnot that they didn't again make to judge issues most of the time entries are from shane nichols who was the main trial lawyer throughout the federal litigation shane nichols he was in the courtroom they could have put him on the stand and said how does this injury relate how  absolutely none of that so you know there were there was segregation there claiming there should have been a greater degree of segregation based on what they've said in the brief those discussions didn't occur before judge hughes and again they have the the witness there to quiz about this so they didn't allow judge hughes to even consider what they're now claiming on a judge means i want to answer your question better than i did before and it goes to the your question about why wasn't the expert testimony you know all explained why they were there you don't need an expert i'm sure the court would agree to give to construe rights protected versus there absolutely i'll do that so so there's kind of three points i want to make on that st to the reason were we didn't have an expert to go up there and testify about why they did these things or differences because we don't dispute the three differences and that's important judge she's only found three differences that we that we say are in compassed with within the patent application they could have raised mormon differences if there were many and numerous forms that that's all those three differences consist of is differences in the form of the wild you know the percentage or the mixture of the facts that make that technology what is defined very broadly but but specific in the patent application so what judge hind was doing for all of us frankly when he signed that clarification or we don't think it was really a clarification we think he he construed the patent application as this court must do her so i sleep the way we had all along which is to say if the the arbitration award and the confirmation order as affirmed by the court of appeals functionally it's the same thing it's the light has to come out to be able to excite the sulfur dioxide so our position is that is a physical difference as the patent application says departures may be made from the details without the parting  spirit or scope of the disclosed general inventive concept and this is a general inventive concept that became patented but the more broad patent application didn't narrow that one piece of that the  paragraphs pulled out of the order traders decision you said the technology developed by your current means technology using unix with an extreme or light source that uses krypton chloride specifically to measure sulf