someone designing a mitral valve replacement is this how to keep the valve where it's supposed to be through all of the stresses and strains it faces each time the heart beats need to bask came up with a novel approach based on anchoring the implant to the fiber scaffolding of the heart itself as opposed to the valve that was a novel feature deserving of a patent and indeed they got it at the district court's decision that actually a make this distinctive and b make a substantive difference because if it was the prior art that you're talking about maybe is in fact or was prior art for legal purposes but at seventy three where the court said we find it implausible to say that a person who contributed only to the non novel end were obvious elements of a claim can be called an inventor in the cut in but not no one up to it cont you are but the point is prior art has one meaning in a statue with your honor's question implies is that we will have one definition of prior art for purposes of things like one of two in one of three analyses and another definition  prior art for purposes of inventor shit that doesn't isn't it pertinent that the point in time at which the information was disclosed was before child was published not in not in the patent context i believe what the district court disclosure agreement and it ends up going to patent the schools are none of the restrictions apply no you're our trade secret restrictions certainly apply that's what trade secret laws for but the question is are you one inventor and if in deciding whether or not someone's an inventor not we have to decide that they come up with something that is happening to people that is different than the prior art known or unknown public or not and as levin suggests if it's something you would have gotten a patent on in the you can be a joint inventor one is you can contribute something novel let's assume that out claim has limitations a b and c limitation c is new and novel you contribute solely see the other inventors contribute  you're entitled to be a joint inventor in that contest the other way is if a this isn't barred for example or excuse me in nor trial where you talk about the claimed invention as a at a minimum what the district court should have done is accepted showers prior are accepted solum is prior which she didn't discuss at all and say all right now i'm going to compare and see what was novel in the claim these in light of the didn't do the relevant comparison but more importantly she didn't address challenge again so long at all because of this legal error prior art as prior art whether it's in the one or two week context of the wanted to be context and i suggest we invite mischief problem in light of the so with that your honor i think that at a minimum what should be done is that the district courts will be told to go back look at what was prior art and say all right was there anything that was truly novel that would have been make were not made below they have to prove they're entitled to be named as co inventors and you don't get to do that on in the wreck in light of this record so with that if i could turn to the trade secret issues as the trade secrets are to find they legally flawed as a matter of liability and just as importantly cannot support the damages request but with respect to the trade secrets you didn't object to any of the jury instructions regarding trade secrets did you your honor i'm not aware that trial counsel objected to the that the law that you're comparing the evidence to is the actual law irrespective of whether of whatever the law was described as being in the jury instructions i have been i'm unable to find whether that same  principle work is in operation when it's a new trial motion for this is a verdict against the way the evidence or or or whatever and at least no your honor but i'm not aware of any of that with any such authority but that's in some ways beside the point because we have an unusual circumstance here where the instruction given was correct this is a trade secret sex ah but then in the new trial restated her own instruction and restated it incorrectly she correctly argued the standard of massachusetts law that something had to be in continuous use she then turned around in the new trial said well but the evidence supports the  because quo they know what to do and what not to do while the instruction she gave had nothing to do with what not to do you know why it seems to me that if you did not ask for an instruction that said what not to do is outside the protective will trade secrets then you don't can't complain about that now if the answer to my earlier question is you for new trial as what why that's why that's true that is every day i learn that i know don't touch that button and i just kept constantly deciding don't put in this chemical don't do this don't do that i have been shown in secret even in a secret confidential process that that would be a very bad thing to do i think that's a gloss on the massachusetts articulation that massachusetts secret that's correct john and something so you are not you are up under a very deferential standard here and you have to say no reasonable jury could find that it's a trade secret and as such the toronto says that if my trade secret to you is do it this way but make sure you don't do it this way then why is that not in continuous use if you're following that advice because the materials development case at ninety seven says continuous use means court state court decision as the best evidence of the state's law your honor there is no dispute certainly athletes do not argue that if we were anything other than restatement law they didn't believe it's an incorrect articulation if we could talk briefly about trade secrets for the fundamental problem is that we don't know which one or more of the sixty plus combinations the jury found misappropriated and the criticized expressed some frustration that the challenge to trade secret for wasn't raised on summary judgment but the final sentence suggests that that she considered the issue on the merits rejected the physician that the avast took below and under massachusetts law that is sufficient to preserve the issue and so we believe that as a practical matter we don't know whether the jury found that it was component two and five that that was the trade secret we don't know whether it's one three and six we do know that each of them individually was acknowledged to be well known in the in the prior art and the judge said when that was challenged on new trial well that's taking it out of context well unfortunately the way it was presented and analyzed by the judge it would we need the context know what the new trial motion is being tested against i only have a minute or so your honor and i'd like to talk about this most important in the context of damage primary trade secret claims one two and three and based on those the damages expert said well we could get fifty percent of the valley well if one component out of the thirty is all that the jury found or at even six components out of the thirty w all the jury found were misappropriated then that cannot possibly be substantial evidence to support the damages find in this was preserved this was a challenge in the new trial motion and so again all the as a new tr issues i'm not sure that a directed verdict would have been appropriate this case i really do think i mean to be blunt looking at the record as a as a relative newcomer case it seems that both parties tried this is if they thought it was going to be an either or that that all the trade secrets were misappropriated or not of them weren't it doesn't seem that anyone really contemplated that only trade secrets for five and six could be misappropriated because mr wagner the damages expert author offers nothing but its effects as to how say a different record acknowledged this correctly at a ninety three in her memorandum and order and looking at that contribution now it is so there was nothing novel that we provided well we did may have been present but they were well that's not certainly not going to be the case when the events itself argued for the novelty of the claim as a whole so we were in a position to say everything in that claim we had the only the only thing allegedly missing and essential one were right is when we're trying going all right i construed to mean by design correct and not entirely sure whether yours here's twelve anchors some of them will necessarily contact the trigram to what's claimed is to add this were try going on to say well we're going to we're going to create pre design which of those now when we compare that in the context of the whole invention which is what the district court correctly did at the time no one to have ever made a working trance catheter mitral valve implantation device mr lane the named inventor had never worked on  with this this information for example showers your honor noted that was wasn't even known it was secret at that point time so against that whole background the contribution was qualitatively quite significant and we do  was there a trial testimony and that challenge did disclosed specific elements or not it was something that was addressed only it was put into the record at the close of trial no witnesses described it at no point did we have anything other significant contribution was not in that prior we certainly had have the ultimate burden of persuasion on the issue of having contributed qualitatively to the invention and again that that is measured collaborative co invented process occurred number one number two we know from other areas that we can have two sets of inventors for example in an interference context we could have one group of inventors and another group of inventors both invent the same thing it doesn't make them any less inventors that they're working on it at the same time and we don't need to decide whether the claim patent is valid under one of two und challenge that wasn't the issue here and in fact i'm a facia the earliest priority date that shall could be entitled to is its provisional filing date which was in december of zero nine and  showed that we provided the breakthrough design to this revenue design in october of zero nine two months prior and that's at eight twenty five sixty four through five so we certainly secret issues i think it's important to get told so look at the standard of review here there was reference to evidence supporting the jury verdict well we're here on the on the new purposes of this new trial the correct legal support that the legal standard being used to assess as the metric for assessing the evidence is when given the jury instructions where that's objected to or the correct law if that happens to be different because it is that correct law in the jama text is the new face they don't have authority i can cite and that your honor i do think that it makes sense that the judge the jury instruction which was not objected to be the operative legal standard i do believe it is consistent with the standard that judge burroughs did apply in the new trial context and it was all in the context of this continuous use requirement for treat secrets under massachusetts law and there was an instruction to that effect which it made clear that we needed to show that we had something other than a single femoral event the jury instruction had examples of things like bit information or salaries that that were evaluable for just a moment in throughout the development of the project and that it was used in later versions in fact the first in human sample of this d m v i device was testified by d the un availability under mass just it's lot of negative trade secrets based on the one nine hundred seventy one superior court decision i don't remember whether you in your read brief a law as it would now properly be understood it was there was a list it was a trial court decision and it has not ever been followed and if you're asking the question what would mess supports the view appellants want to present which is that there is the right line rule no negative no how can ever be protected what the court in that case did some somewhat i think we got a better case that happened in that case there the defendant worked on a trade secret for a metal coding process he never quite perfected it never quite got it to work but he then left the plaintiff and joined up with the defendant shortly after makes the final few steps in the r and d process and it is successful the plaintiff susan and prevails and the you know the ultimate outcome in that case is that that was a protect know why it doesn't work and we we've given up we gave it one shot and now we're done that might create a more interesting issue under you know what this continuous use mean and what does that material development  mean in terms of not protecting simply mistakes to be avoided here we've got we've got both the learning from that experience and terms of what what to do as we go forward we've got the testimony that that that experience is drawn upon still to this day and so we have met the continuous use requirement has instructed and like i said i think even a strong we've got a stronger case than even materials development which a conclusion that that the that in carefully reading your expert opinion with respect to how he got to his numbers now granted the jury discounted the numbers but that in in we were starting from this construct of the hypothetical negotiation where we were forced to be treated as a willing license or when reality the parties agreed that neither of them would have ever injunction put a stop for eighteen months it's easy enough to read the n d a provision as in particular say as being satisfied by a bar  injunction for some other for some period so it doesn't seem to me to establish that you're entitled to shut them for eighteen months well i think that the eighteen month actually you know at a temporary injunction actually less severe than an entire bar on any use permanently but also we did propose the alternative to the district court which would have been a an even shorter injunction the injunction in place unless and until we are peed on the judgment so that the district court said it's a double recovery because you're getting the damage award which we have represented a hypothetical license we never would have but only seventy million of that has been placed in escrow to secure the judgment and that was a result of a contested state motion where we saw th i would i would certainly and i would like to be able to do that although we may raise that as the issue previously in certainly some direction from this court that due to vacate that portion of the denial would be would be helpful so that we're they want to argue that below then we can get into the physiology of it but it's not this isn't the q argument they are they're very different places on the heart one is again the the structure itself and the other of the valves so let me just say that there's there's a difference there so on your honor it's on absolutely it was it was never addressed at all by the district court and chalo should be addressed and the property in the proper light all of this can go back for a proper consideration a comparison of in light of the of the law that we've talked about the proper comparison briefly on the damages and then i'll get to the to the injunction request we talked about the fifty percent issue which is how can one or two or three people fifty percent of the problem i heard nothing from council that particular issue we didn't get to the ex post argument we made in the brief and that is a significant one that in the window between twenty ten and twenty studies there were canaveral studies there was the first first man probe and all of that took uncertainty out of the equation all of that uncertainty being taken out of the question in europe to their benefit from mr wagner's perspective so we think that a new trial saying no no when we mean hypothetical negotiation you can look in the book of wisdom as a cross check as a double check as a reality check but you don't write that side with the value of the first check should be and that's what mr wagner  injunction just a few points by april or may of twenty ten it is twenty ten it is undisputed that everything that was purportedly a trade secret was in the public domain voluntarily they had a published an application they trade show presentations etc so what they're saying is more than seven years later not knowing which if either of these companies products will actually save lives we're going to hold us back from doing clinical research for eighteen months to figure out what works and what doesn't that doesn't seem to be something that it was an abuse of discretion for the district court judge to say no i want to see how the science plays out it's to all of our benefits you know thing your honor rightly points out that it talks about an injunction not not a specific injunction fact the court did order certain elements of injunctive relief we had to destroy certain documents return certain documents etc so there was an act of will relief even in this case just not this eighteen month specific kind of equitable relief the court did not abus discretion i think i'm out of time mike i think you are on the backside but i would it's particularly on the damages issue if there's anything that the court has any concerns about with regard to damages you think that is particularly appropriate for a new trial in the light of the way the split verdict caught until information and trade secrets were made public as of the shortly after the pardons the business together he said and the actual prototypes and the sharing of the front row view as the district court referred to it of our development process was something that no one else participated in you there during the course of the development and collaboration or or afterwards a patent application publishing did not have the same level of detail as the kind of information that was actually being shared with three of the real problem i think is the judge's sentence is on the public interests has a significant factor  and to that your honor i would respond that you know this court in twenty sixteen decided that i t v koehler case and similarly there the district court looked at the fact that the technology at issue could potentially be lifesaving and this court said it was it was error to use that as a bright line rule to say that the public interest and that potential safety outweighed the interest in enforcing ip rights and in that case koehler the parties actually worse selling products there was actually a real product of vailable here where at a much earlier stage and the district court candidly admitted that it couldn't know