i'd like to address st the issues as they relate to the cross appeal taken by the defendants in the matter and i think it's most important to note that the issues that the sole issue that was raised by the cross feel was the court's denial ultimate denial of an award of attorney's fees to mr highs and trite for his costs in defending against my client's claim for breach of a non disclosure agreement  and that issue which was the sole issue raised on the cross appeal was neither preserved in trial court nor in these appellate proceedings and and i want to address that specifically  what the district court did in this regard was to find that even though the jury concluded that mr hasn't tried did in fact reach the nondisclosure  agreement that he was the prevailing party because the jury did not work in damages for that breach and based upon that the court said it was willing to consider an award of attorney's fees to mr h tried the court wanted mr highs and trying to submit its damages apportioned soley to the defense of that contract claim by my client and mr hyde and try declined to do so offer neither any evidence as to what those apportion damages that is the attorney's fees for defending against the breach of contract claim were nor did he file any objection to the court's request that those be apportioned and as a result mr highs and tried was denied any fees for his failure to offer claim for attorneys fees and the cords exercise it is just a question in requiring apportionment and and ultimately denying that request is nowhere to be found in a in the cross should judge collins in point of fact they did not raise that issue in their opening brief and if in fact the only issue that they raised that could even remotely be related to this issue mr eyes and try to turn and then he has argument on that is that preservation of your honor and he issues presented which as i understand this court's rules and public procedure require a statement of the issue  to preserve it for appeal there is no mention of fees there's no mention of the court's ruling with respect to those fees or a portion at the end and i see what you're referring to  they do reference that in the body of the brief but nowhere do they raise it in the issue presented as required by the rules and there and there is nicer i'm sure we would find that could be a waiver they live it  and our objection to the court's refusal to find that that mask group was the prevailing party but nevertheless your honor then they have clearly waived that argument before the district court by failing to respond in any fashion when the district court suggested that it might award east to mr highs and trite as the so called prevailing party on the breach of contract claim  when they fail to offer her any any evidence of a portion damages nor did they file an objection saying this is impossible and give the court the opportunity to either modify its order or give us the opportunity to to support the court's exercise of this discretion to apportion fees i also like to point out your honor if i may that we believe that the court was unquestionably incorrect when it deemed mr highs and try to be the programming party on a breach of contract claim that where the jury specifically found in its special verdict or california law where consent is that the breach by itself is adequate but secondly where the contract in and issue the non disclosure agreement contains explicit language stating that  that there is no need to for there to be damages either for an injunction to issue a warrant for my client or the non breaching party to be deemed the prevailing party and it's essential in non disclosure agreements of this kind seeking to protect trade secrets which which the california courts have deemed a constitutionally protected form of intellectual property  it's very important that the non disclosure agreements guard against the use of trade secrets and other confidential information even in the absence of any proof of actual damages because as the contract states it's very difficult oftentimes to prove that damage but the need that the parties are mutually expressing in that agreement to protect demonstrate or have a finding of actual damages for misappropriation to have occurred and in this case ask you about your misappropriation claim as i struggled with that one a little and so let me ask you about it the court said that you can present evidence at trial supporting a reasonable royalty right yes and i understand your argument on that that you didn't have an obligation could we understand what  include reference to the reasonable royalty claim in the pretrial conference for and we didn't put on evidence at trial that that was the basis or the bases for her our briefs the central district local rule explicitly excludes any reference to damage theories and the judges the judges own instructions to the jury were that there there may be consideration of a reason royalty post trial but it was not an issue for them during the trial and given that given that we were extremely limited in the amount of time that is all parties that we are allowed to offer evidence to the jury and there was an explicit jury instruction that said this is not for your consideration to be determined by the court in a post tr  both of which addressed the issue of the reasonable royalty and the injunctive relief that we were seeking and and we stipulated with opposing counsel that this was the method of briefing all of the issues pertaining to the judgment of what it should alternately contain and we were very explicit very explicit in our briefing to the record so if you have them were at least the dates that you filed those prejudgment briefs yes your hon denying any consideration of a reasonable while not denying a reason morality based on anything other than the fact that we had put in evidence at trial was very clear that there was no consideration of a reasonable royalty and it is on all fours with the condo case which remarkably involved a claim of very similar facts where there the jury found that there was  see a reason a while so oh i agree with you on that but that's why i asked the question i did my impression of it as to how things unfolded were that the jury's verdict came in you were at that point alerted to the fact that hey i'm going to need to seek relief from the court i'm going to get anything out of this trial the judge told you in the other side to confer about a schedule for post from oceans and then the next thing the judge got was your proposed judgment with a line that just a reasonable royalty blank dollars and if i were the judge then i would say no there's no way i can fill this in because you never presented to me any evidence of those trial you never even asked for a reasonable wrote you till you give me this proposed judgment and that's to so that's why i wanted to know was there something between the juror is really coming in and your submission of the proposed judgment in which you asked for a reasonable ruthie you yes your honor we filed a brief we we on our own filed brief regarding the judgment because and then the court asked us to confer and we reached read up on schedule and submitted another and both of those briefs specifically addressed and requested consideration of all on all issues and that's what prompted us to file our st brief before the entry of a judgment before the entry of the judgment and and raise the issue of a reasonable royalty and raise the issue a motion we were focused on trying to get the judgment modified because unless we were the prevailing party in a modified judgment we wouldn't have a claim for reason morality or permanent injunction and that was the fundamental defect in the court's minute order that we immediately addressed and we addressed the reason more wealthy and the injunction issues in the context of that fundamental overriding issue which without which it would be pointless for us to be filing motions you've used up all of your time oh if you two minutes for a bottle but if you can on rebuttal please give us the a cross appeal and hopefully that's that's acceptable i plan to taking about ten minutes and then i will take there maybe five are you guys addressing different issues are you dividing them we really are both dressing the same issues i don't think there is much much there's not a clear line of them occasion between the issues that we have there's obviously some issues that apply only to my clients but i think the ones that we share in common we shar so i want to address st the what was said about mr highs and try the attorneys the award and the failure supposedly to perfect that argument what happened was there was a motion for attorney's fees including our that argued of course and the opposition and the reply was whether or not the all the fee should be awarded because this was a unfortunately a very big case with relatively speaking with a lot of attorneys we explained very clearly that we felt that this is a classic case of the intertwining fees and really i'm i'm frankly at a loss if for example the court denies r p o of that and we're going back period that's the breach of contract i can't pick a spot and say oh yeah that was my time on the contract was it didn't your friend on the other side in the engine in the jury itself find that your client did they just didn't find damages or how are we to read the verdict is i think pretty straightforward which is that the jury found and i can agree or not but the jury found that certain that the elements had been met for a breach and for various other clear but they zero damages with respect to all these claims for copyright they found no liability whatsoever but for the other claims they found by and large that a certain thing had occurred a breach of misappropriation but then found zero damages across the board and we've submitted a variety of cases th circuit otherwise that say when that happens it is entirely proper for the judge exercise discretion and it's an abuse of discretion standard terms of the judgment that they're going to make following a verdict that judgment for the defendant is appropriate i think it's very important this case a key distinction is that there was no nominal damage instruction given we have a case for example the wills case that we've cited to point out that there may be an exception where there is a nominal damage found sorry nominal damage award found and that could be enough to trigger the difference but it's zero damage means that that portion that elements of this claim and  like the core indicated just now it is a serial and for all the claims that issue and it was found to be zero damages and so therefore the judgment was entirely correct the court was entirely correct to say judgment should be found of our excerpts of record there what's called a joint report regarding the form of the proposed judgment and this was filed on this is dated february th two thousand nine hundred and it says the defendants prepared to propose judgment proposed judgment on plaintiff counsel for consideration plaintiff object i'm paraphrasing plaintive subjected to that form of judgment and right of their own form of the proposed judgment and exhibit was given on the phone the transcript of the court said is there anything further there was anything about we intend to file a motion on the rule fifty we intend to file a motion for an injunction or reasonable wealthy way you see in that condo or cases that such a motion was filed in fact and i know this gets a bit that never happened there was back and forth on the form a proposed judgment there is no evidence that says this is what the injunction this is where and how that injunction there's no evidence that says this what do you say back and forth i'm sorry what do you mean by that back and forth between the parties or were there filings there were filings i'm saying that there was a filing regarding and basically an opening in closing briefs that both parties did this is by stipulation in terms of how the briefing schedule would go at what you'll find in this is on the record is that plaintiff in his closing brief a nd brief on the form of judgment the judgment that he then favored was something that's sad basically of reference the verdict judgement is injured according to the verdict entered on blanks for reasonable royalty that it should be insured and there was always this this reference to a post trial motions but between the time of the jury entering its verdict and then to the time of the judgment being entered there was no motion was filed and even though there are arguments about potential waiver the court of appeal said well this motion was filed and decided on the merits and so we're going to consider on the merits there's no motion here and now we're at a judgment stage and now the only way back to mr holmes st answer is whether he had sought this was by a motion to amend the judgment there is very specific requirements in terms of what a motion to amend the judgment without a manifest error or something not the new and unusual circumstances that awarded many of the judgment so we can this case doesn't just stay open forever and maybe at some point will receive a motion that says it with an expert declaration talking about the value of the reasonable role of the of the traits you consider issue seems to me you you preserve that issue in these i guess i was inclined to think that the district court in the views its discretion in saying listen there are a whole slew of claims in this case copyright said no i'm not going to do that i mean you're going to have to come up with some basis for giving me some subset of these fees that's the only thing that's really reasonable here given the way this case played out and then you just said no we're not going to do that will take our shot at getting the appellate court to overrule you so just give me your best argument as to why the court abused its discretion in requiring you to come up with some way of presenting a subset of the fees that you thought of and i know that that's the standard and i know that that's not an easy one to beat i would say this is that one this is that example of an abuse of discretion we cite to the am tower so really my my submittal or my primary evidence for that is the amended the operative minute plane itself i think i simply have no way if if you look at it there everything is repeated over and over again the breach of contract applies to everything including the copyright crimes really that's how the state because the idea was there was a non disclosure agreement in terms of what our clients can and can't do and the operative complain case beyond what you would have done just for the breach of contract when it also meant conquering queens i just find that possible to to accept and that's why i'm saying if that's your position i just don't you know abuse of discretion that disregards part and say no there must have been one minute of extra time you had to spend during the copyright kit is that didn't involve the country well and i think if you look at the allegations of the you'll find that those claims that underlie the con the contract claim the sorry the copyright claim are found in the contract in order to what about all the jury instructions you prepare for example your all all those were related to the contract claim and doesn't that exists throughout the free trower or you ferret areas not related i  judge's order was was posed is that i had to find a way to find a portion of the breach of contract that's different than perhaps the negative that you're talking about which is maybe i can find things that would be the breach of contract  give him that minutes to add anything else that's fine so with respect to the misappropriation of trade secrets claim that was also mentioned at the outset whether or not who is the prevailing party is ultimately that is under the abuse of discretion standard as well and the situation in which no relief was awarded the damages there was no motion for his morality or an injunction prevailing party status  very clear that that is based on a practical look at the release granted and so you look at that that relief that was granted which is nothing plaintiff literally has walked away with this with nothing the judge was entirely within within its discretion to  prejudgment world should request because i looked at the docket and the only thing i could find that you filed with the verdict and the judgment was the brief that docket for twenty and in that brief what you said was as explicitly provided by the f r c p in california law plaintiffs will see from the court such a reasonable world keep unit  we also filed an additional brief on march th asking the court to consider our request for a reasonable royalty and to include it within the the form of the judgment and  but prior to that your honor prior to that the court had indicated that we were not entitle to consideration of a reasonable royalty by by commenting at that that it wasn't subject of evidence at trial so we were trying as we knew we needed to to get the court to modify the judgment or vacate the judgment to allow us  discovery and and including depositions and expert reports and submission of evidence and briefing when none of that had been submitted in the district court  previously and there had been an opportunity to submit that and that's what the th circuit said was was not fair because it wasn't fair in that case and it's not fair in this case to say we're not entitled to a consideration a reasonable royalty because the court based its ruling early very early on that we were not entitle even to consideration of a reasonable royalty because we hadn't put on evidence at trial and that is just fundamentally wrong as a legal matter and that's and and that is what the client or case stands for that you're not required nor are you allowed to put on evidence to support a reasonable royalty if we had dared to try to put an expert on the stand and talk about what kind of reasonable royalty we would have been entitled to the judge would have instructed me to to discontinue that offer of proof because the jury instructions that we had agreed to and to the court subsequently re were very clear that that was not an issue for the jury's consideration so the judge having issued a ruling mediately after the jury trial to the effect that we will not be do yeah just trying to instruct you that you did well exceeded your rebuttal time so please just wrap up with me or i do not like to just very briefly address and i appreciate that your honor the point that was made by my poison counsel with respect to the prevailing party determination be an issue being an issue of discretion of the courts with respect to the breach of contract why mr i didn't try to whom the jury found to have breached the contract that's not a factual issue of discretion in this context where the court based its determination that that mr highs and try to was the prevailing party on its legal conclusion and a pure legal conclusion that notwithstanding the jury's verdict that mr eyes and tried breached it my client could not be the prevailing party as a matter of law and it's not an issue of the courts discretion over a factual matters i beg to differ on that and with that i