this case involves the development of a new novel cooking process have to start with momentary matter whenever i see that the last entry in a district court was the dismissal of the remaining cla without prejudice i get nervous that we have another subtle oyur if you think they can you they had the intent of congress and twenty eight u s c twelve ninety one so i read docket entries what are the three zero four zero six and that's exactly what it looked like happens here and we have a long string of cases with various remedial actions we take so why don't you tell me why you you didn't this wasn't a manufactured appeal to ev final word yes your honor i'll address that issue after the summary judgment order was issued the parties did engage in further litigation and it was concluded that the case should not go forward because the issues that had been decided on summary judgment  looks to me like you think if you get a reversal then we can reopen the issues dismissed without prejudice and proceed along and we will have had a wonderful interlocutory appeal and if that if that was the intent here we likely to do something about one thing we can do is the in the dismissal to be with pride yes your honor he had done that i understand also dismissed the peel for for lack of a final word we have done that now and why shouldn't we do one of those things here because the final judgment that was entered has handled all of the claims in the case you think you can revive the remaining claim the if you tell me it was dismissed without prejudice because it was basically premature viz v the patent office that would be that would be that would be different and that would that would not be that would not reflect an intent to revive it if you get some sort of relief from this chord on the claims that are otherwise here but if you think you can revive it worth posing kayaking member who was dismissed without prejudice was a declaratory judgment claim concerning the ownership of the hybrid process which was the process since well i don't want to hear all that i want an answer to the question if it does anyone think those can be revived because they were dismissed without prejudice that's the final order doctrine probably yes your honor and if that's a yes or no because you know therms position that well that's not very definitive but we can force the course they've been just going to make that clear when we if we knew what you mean disposed of in you're prepared to have them dismissed with prejudice so the claims cannot be revived is that what you mean by dispose are you not sure yet whether that's where you want to go your honor i can't because if you if the appeals dismissed then you can proceed with those claims first before the whole thing comes up on appeal we're happy to have you go try those cases and those claims and come back with a true final order if that's what you prefer your honor i would have to consult with my client before i'd make that commitment but i do understand the court's concern and we believe that the issues on appeal are the important issues that need to be decided people always think that's because then the final final order doctrine is such a pain for people who want to only go ahead with the tail end of the suit if the if the main part of the suit stays alive this is i mean in my twenty five plus five plus years i've seen this time and time again and as a as a litigator i lived with the pain and suffering of the final order doctors will go ahead with the appeal but we expect both parties within a week to advise whether in their view if we do anything other than a can these claims be revived and if you say you are content to have them deemed dismissed with prejudice then i can almost guarantee you will go ahead and finish the case if you say something different your clients may have wasted a lot of money with this appeal yes your honor let's go back to your word you want to be the this case involves the development of a new novel cooking process in the food industry it involved the making of cooked bacon with a spiral of using super heated vapor the district court granted summary judgment however on the agreement said issue ruling that the project that was involved was limited to the development of a commercial of it and specifically ruled that it did not involve a cooking process it governed the rights of the parties concerning confidential information it was specifically referenced and incorporated into the j t a with respect to those duties so both whether the oven was viable is a jury question right that's that's what i think that's your argument number one and so my question to that is where are the facts that make make make viable results under the g t a involved the and product the actual pre cooked to bacon that needed to be at premises of hormel would produce a commercially commercially viable product we had a prototype elven and then that was to be developed into a commercial of one and if it wasn't developed it wasn't viable either party could terminate and so you say that's a jury question whether it was viable and if if and then use and i say w facts and you say world it's a process that has to be viable one of my question is if we agree with the district court that the j b a focus was that of them were and the facts that make the development of a vi commercially viable of them a jury of your own or if we look at the language of the agreement the paragraph that contains the definition of project specifically refers to end of in process that would be an initially focused on producing bacon and we would submit that the oven at issue here necessarily involves a cooking process to limit it to just a commercial oven i asked you for fact references death is ition affidavits documents three question of viability whether it's you you finding it or the district court your honor if we look the appropriation request made by hormel in mid two thousand and eight mr her read of the hormel team is making a request for money to enter into a six month lease of the unified therm test of it and he wrote what page you're reading from in the append just give me a page number d batch of and can be produced in a continuous oven thus it is important for us to control this technology actively working on the project with units there and to put that into contests the test of been is an eight foot by eight foot by eight foot of and it is called a m spiral oven but it is definitely a large functioning of ng that has been specially adapted with the unit therm process to make the bacon that's requested by hormel that is the test of and we're talking about and at that stage that isn't viable that isn't viable commercial of viable commercial you are your honor and because the test of him was a functioning one lane of and that could cook bacon the oven that would only needed to be developed would have three lanes and it would be larger but the of an itself was fully functioning and using the unit therm process in a high quality way we would submit it isn't your lead project means the process not the oven isn't that your point or are you saying even if project means the oven there still a problem with some rigid fact under that reading of the contract are you we are not saying that if it is truly limited to just in oven and you're buying an oven only and you're not dealing with process at all that we would submit the contracts don't make any sense if that's the case but if that is the you just talked to something that the consumer buys or the retailer buys i thought we were talking about an open hormel would you to do commercially viable product it would market to retailers who would then sell the bacon product do i have this resold or anything yes it is a process that as it's referred to in the g a t a that was being purchased from units there but the district court's ruling was that the project just involved the development of the oven by itself not the process correct correct year i don't know what's wrong with that ruling given the way the greenman was drafted with the parent article at the end of the sentence that refers to the yes your honor if we look at the j b a and the paragraph that we're talking about there the last sentence reads that hormel has developed a prototype high steam level of n that produces such bacon yes and would like to work with unit therm to develop commercial of ins using high steam levels which would be exclusive to hormel the using high stain steam levels we would submit is the reference to the process you need to develop the oven in a way the spiral oven so that it is configured properly so the bacon doesn't set fires that it has a quality that is necessary in order for this to be a viable project but what does it have to do with whether you say  use a microwave first before you use the of and i thought that was one development of the process here became a two step process how would that involve anything concerning the commercial oven all the hybrid process was was putting in a microwave oven before the spiral oven and then produced the bacon it is a pretty heating that was contemplated by mr howard when he developed the unit therm process and it doesn't change the product at all but aren't you saying that the idea to do it that way was part of the quote project it was not communicated to us that that's what hormel wanted what it was communicated to us was just the spiral of been and the unit therm process when they cut off communication in the fall of two thousand and eight they did not tell us anything from that point forward the financial crisis was in play we believed they gave up on the bacon product project and that is why they terminated but the mc da was still in place they had obligations that they couldn't go out and really reverse engineer our test of and and they did and that's what this case is all about your honors i have would like to reserve the remaining time was ever developed for the project and the undisputed record shows that a commercial oven was not developed in fact if you look to the record there are problems with the oven appendix seventeen sixty five identifies by way of example i believe are in january of two thousand and eight there abouts you're on i want to focus on the j d a and the damages because that wasn't mentioned in the opening and the district correctly found that you know therm cannot establish the damages element for its breach of the g d a client at summary judgment you know thermostat at three specific breaches for the g t a the first one was improper terminations the second one not made a single argument as to how the district court erred in its conclusion that you know them cannot establish damages as a matter of law with respect to those breaches under the g a t a under a circuit law we believe that issue has been waived commercial process again the undisputed record shows that a commercial oven was never developed and under the g t a either party had the right to terminate the g a t a if no commercially viable project had been achieved  been damaged as a result of the alleged breaches that they have made and the alleged breaches that they made is that hormel improperly terminated and the district courts said well how have you been damage and they say that we've been damaged because we believe that the project should failure to share information on the project on the district court asked how have you been damaged by the fact that even if i assume you're correct that the evidence shows hormel didn't share information with you during the g t a how have you been damaged in uniform with not unable to point to any evidence of how to even damage such that the that was other than pure speculation and then with respect to failure to provide thirty days notice again uniform was unable to establish how they've been damaged by that specific breach your honor i agree that the contract interpretation we believe the district court got it right that the project is about development of a commercial oven and that never happened and so it can be affirmed on that basis alone the language of the c d a the restrictions and obligations of that agreement do not apply when information is or becomes part of the public domain and it was the undisputed record shows that the uniform process and the uniform of and were both in the public domain the uniform process was placed in a published patent application and july of two thousand and nine the uniform of it was publicly marketed by uniform and retroactive what of what is five being mean if it doesn't if it doesn't mean that your client's already this if your client already disclosed truly confidential information it would be in breach on the day it was signed that's what it says to me a but more important way that information was not confidential there's no evidence in the record that the information was confidential and in fact if we really want to know what was happening i understand that but that's not what that was not the lead argument the lead argument is you can't breach of contract before it's form you just said well we didn't breach it because we didn't we we just went out in the marketplace to see what shared prior to the contract then five b would be applicable and the parties would have that understanding the problem is in this case there's no evidence in the record that establishes that any confidential information was ever even shared before the c d a was entered into and under uniform had not entered into the confidentiality agreement on july eleventh and bussed in this closure could not have been a breach of that agreement now one of the rights it's not though the question was whether then the agreement that comes later retroactively brings that information into the disclosure or the nondisclosure obligation right and so if that's true then it is your position that yes it brings those disclosures in but it doesn't make it unlawful to have disclosed things before the agreement was signed is that your point your honor i think yes that that's that's one aspect but i think the other thing is is to look at that's that's one basis and we submit that was correct but there's another basis your honor that the district court decided the other basis yes we believe they did and that's that's the point i'm trying to make that i'm not going to i'm ok with that's a question of the district court's opinion and you read from a footnote which doesn't say that right now i'm going to provide context of that footnote your honor appendix thirty ninety seven at the out so this case hormel move to dismiss you know therms breach of the m c a claim because they made allegations that hormel had breach the m c a on july eleventh two thousand and seven because of the very letter that there that the district court reference in a summary judgment or and when we moved to dismiss that and c d a claim steam but no details of what you know theron was claiming was the confidential trade secret the uniform process appendix thirty one twenty four uniform also told the district court at the outset of this case unit therms complaint paragraph forty four to fifty one specifically makes the following assertions none of which are based on the two thousand and seven actions by hormel no where does the complaint focus you know if there is a breach of contract claim upon the two thousand and seven actions you have to the record doesn't support a breach prior to july twentieth two thousand and seven and we also believe that the district court got it right when they said that you can't breach of contract before it is form three reasons first the district court interpreted the definition of inventions to narrowly the is not limited to a showing of improvements rather the definition is much broader as it covers all discoveries improvements know how found at appendix twenty fifty seven third district court ignored unit therms own admissions that confirm that the partly developed you know through process was further developed during the j d a and relates to the project before th mr howard told the patent office that one result of the parties joint development efforts was the cooking process disclosed in the patent applications you know therm owner david howard testified in his deposition that the patent application for the cooking process disclosed in the uniform patent applications was filed in furthering of the g t a well now you're talking about the process and i thought the district court concern was you were trying to have it both ways you're trying to limit the project to the development of the oven when you're talking about unit their claims but now on your claim you're trying to say relating to the project means relating to the process what's wrong with what's wrong with that it was why should you be allowed to expand project or are you expanding project in your argument here no we're not not expanding projects your honor the project was specifically defined to be about the development of commercial em good ideas about cooking process and why isn't relating to the project mean good ideas about an oven it can be it can mean good ideas about and of and as well your honor but the being about ubuntu it was the finding that the it was it was understanding that the parties are going to get together and they're going to exchange ideas that come up regarding the development of an oven and one of those ideas was the process of cooking baking in a super heated  environment you say it relates to the project relates to the development of and it's about the process what we're saying is this i guess is a little bit more narrow than that but the evidence in the  at under the g t a it's about ownership and that's what this video is or tory judgment that you effectively own the patent because that we own the invention of the declared her judgement that hormone seeking in this case is not seeking under the g t a we believe that we have a claim to ownership if you've got that declaratory judgment that you will in the cooking process this is closed in the patent application what happens to the patent in terms of what happens to the patent i believe  once thank you your honor first the appendix site that judge politan was looking for his appendix volume two fourteen ninety eight and i apologize for not having that earlier i believe the answers to the questions that were posed by the court indicate how important the process was to the development of a commercial oven in this case and submit that they can't be separated and that it was a error for the district court to limit everything to a commercial oven we believe the summary judgment entered should be reversed on that basis we also believe that our primary claim in this case relates to the obligations under the mutual confidential disclosure agreement after hormel terminated this j d and we would point to section twelve of the m c d a which commits hormel from not entering into any other contract or agreement pertaining to that would prevent compliance with the m there is in absolute obligation for hormel that lasted five years after to not do what it did when it went to j t a competitor that was a breach of not only the reverse engineering obligation of the mc da it was a breach of the entire contractual relationship and we would ask the court to look at it and take it apart what they can't do is convey the information to a competitor they can't go to g b t at that stage and feel different than reverse engineering which is the term that keeps popping up and j b t reversed engineered the test of that's who came in in changed their oven configurations and air flow and everything so they could make the product requested by hormel that's the critical breach and there we submit there's a fact issue surrounding that cock how can it be wrong for them to reverse engineer something that the owner has said work on this because the test because the test of and that was sold was sold at cost less the lease payments did not include the ip and what is in this oven has intellectual property in it where the fans are located where th