be hearing three cases today and we will start with careers to medical the first question presented is one of statutory construction and by it we believe the statue properly construed would allow us to enjoying this repeated use of our trade secrets on an ongoing basis and to seek recompense for those uses subsequent to september two thousand and eleven the analysis starts with section fifty three o two which plainly suggests that misappropriation comes into flavors two different times there's the initial in this type of action yes rahner anaconda for example the underwater storage case both applied single a cruel independent separate continuous accrual it used the various names but each of those applies the separate equal doctrine and we really i think under water storage talks to the policy best when it said that the policy behind the doctrine is clear you cannot get baptized use the words baptize subsequent misappropriations merely because and there was an earlier misappropriation outside the limitations period and so that yes there are multiple cases as as we cited in agree with the trade secret yes your honor yes underwater the web diet  diet web diet was a court of common pleas case that made the same mistake the district court made in this case which was to to take the comment to the model uniform trade secret acts applying the second sentence of the  to a pennsylvania state case than the pennsylvania appellate courts with themselves so we don't have in a pennsylvania appellate decision we don't have a pennsylvania supreme court decision what we do have is a very carefully thought out eastern district of pennsylvania case are adopted in section three of the of the legislation that enacted pennsylvania in the form trade secrets act why shouldn't we look to those comments to reach the same conclusion that we have dieted for two reasons one is that they think the are respectfully i don't believe in sammy you would i believe there was simply a mistake there was there was a model uniform act with two sentences that was commentary that talked about both sentences the pennsylvania legislature decided only to adopt the first  e in one the commentary was imported from the model act to the pennsylvania act they imported the commentary that applied to both the first and the second sentence rather than just the first sentence that's that said and a ministerial error that but recall that the common law was consistent with our position here so we have the common law that fines for supper to cruel we then have the model uniform act that would undermine that that would would chop that off and pennsylvania remove the legislature remove the second sentence and now we're in a in a world where we're being told because of commentary language imported from a broader not adopted model language we should ignore the policy of the common law we should ignore the whole cloth the commentary rather than the commentary on a sentence by sentence basis is a conscious decision theory that seems it wasn't a conscious decision it was a mystery to bear it would have had to be a conscious decision because if if as most states did they they simply wanted to adopt the legislature adopt the model act all you do is take the model lackwit it in so someone that the legislature removed it took an act to remove the second sentence well they generally typical out in various hypotheticals in a brief i think that that is that the that the district court and ask him is incorrect in that regard once we learn all the misconduct or should know under the discovery rule the three year window starts for any given honor that image of the jetsons with the conveyor belt with people dropping off one end when people come to the front and if we wait if we sit on our rights every three years we lose the ability to gain recompense so it's not like there isn't a policy implication to us sitting on our rights or everything as time passes we lose the ability to get all the old seven and i don't quote underwater storage again this is powerful when they when they talk about your honour's exact point the court said they're gaining the defend in that case is ill gotten and the passage of time should not serve to cleanse their hands so those that have adopted to separate a cool have thought precisely of the policy your honor i suggested and what we lose by waiting is the ability to get money for a three year old or older injury but what if once you steal a trade secret you don't get to use it and you don't get to baptize it by using it once and then wait while you have it the theory of the statute of limitations is that all things good and bad have to come to an end we have to have visitor you're our you're absolutely right and this is what we have to turn back to the language of the statute which it said was it discovered or by the exercise a reasonable diligence should have been discovered this case presents an interesting fact pattern because when we were suspicious and we undertook that diligent effort we filed the two seventeen eighty two actions and gleason the court case cited by ask him says what might he have known by the use of means of information with his reach with the vigilance the law requires of him we've that's when we first became confident that there was a cause of action we were suspicious be clear that we were absolutely suspicious dated confidences posa suspicion because what that's what backed opposition revealed is that not once or twice or sporadically but that by all mets folks sat in the same room with us chems folks during development and collectively worked on the formulation and so that's when you say wait a second if i am at noah's ark trade secrets e mails those seem to biomet employee is were directly involved with manufacture on a regular basis and that that was what let was leading to the development of the whole group let me give you a general or specific answer you know in my time but let me if i may when i'm the general answer i just want to make it clear this was on summary judgment in what gleason is called an intensely fact bound inquiry and recall that in just a few months earlier in july of two thousand and eleven both the court and the parties all agreed as of that quite still ask him could have been an innocent bystander to all this so that's the general level the specific answer to your question your honor is that those e mails show that biomet was feeding information as cam it didn't know it on a sporadic basis it didn't show that eskom though was sitting down as part of the development process with him in other words the did the evidence that the e mails tend to show that biomet was saying do this this and this and ask him to say ok whereas the dance with that position suggested they work together and if it's just as a matter of common sense if you're working together in the same room consistently in development that raises it i mean it's all in the continuum i'm not suggesting there's a december two thousand and eleven but ask him was using our actual property correct or are you me that it was intentionally with knowledge or that they were using it i'm sorry might have misunderstood c u z yes we believe that we believe that they were using our actual property but as all the parties in the courtroom agreed at the time they could have innocently been using that and of course misappropriation require see enter so that was that was the hurdle that needed to be crossed that was the line until we had see e mails and we have the e mails i realize that the transcript of testimony is sealed but and can you point us to even line numbers without discussing the content that had something different than what you good morning and also may please the court we have a case here that involves irrefutable facts the clear statutory law this circuit has addressed the discovery rule in cases over and over again and how it's nearly construed how it's nearly interpreted and how it's to be applied for the very reasons that counsel for the race was being asked yet race wants this crop of court to make it the first case in history anywhere in the united states that applies the separate accrual rule can say no we have what you have some deference to the general assembly's decision to not to adopt the specific single year and there is what was the reason there's a reason why is they want to continue we now there's an explanation for that your honor in reality pennsylvania didn't it topped you until two thousand and four twenty four years earlier a couple other states adopted you'd say without the second sentence and in the law review article from the wake forest law review from i told one nine hundred eighty two they actually addressed the rationale seemed to drive why a particular state might choose to enact or not enact that that sentence because they started out their comments and you there is presently a conflict with r t as to whether trade secret misappropriation is a continuing wrong that it adopts the occurence rule so they at a separate accruals can be taken into account they have changed of course in two thousand and four when puts it was install when you take a look at this and the discovery rule was put into effect clearly there was no legislative discussion in pennsylvania but the fact the matter is there's been plenty of discussion in this circuit that wind at the sky over the rule is apply it's applied as i mentioned near only it doesn't g always had a separate accrual rule right even before the statute pennsylvania rule before the state you had a common law heavy and accrual rule that's correct but then would succumbs in with the discovery rule in this court is if you look at the gleason case if you look at the the military says ford's case they would be inconsistent the opportunity of converting a discovery rule statutory discovery rule into a damages limitation rule is not at all what was contemplated puts not at all was contemplated anywhere in any uniform trade secret what what is the significance of deletion of that and the significance is that this state just like north carolina is a state that rigidly enforces discovery rule cases the discovery will standard and as mention in carolina there's no need to take a of a bold straightforward statutory discovery rule and say on or by the way that means that there's no accrual if if pennsylvania was to do that in other states were to do that they'd they face the possibility that other statutes of limitations based on the discovery rule that don't have a second s claims that pre predate the three year period so that those are being cut off but consistent with what any backer in a very thoughtful opinion was recognizing is pennsylvania's approach to trade secrets in this appropriation is adopting the property interest instead of the holmesian confidential relationship approach to to trade secrets it's it seems to judge when to split it in the miller case the opportunity to have recurring events that could spark a new damage period and just keep a discovery statute of limitations going and going plaintiff the benefit to begin with the clock does not start running on the mirror currents of a cause of action you've got to discover discovered through you know reasonable diligence if there's already a benefit to the to the plaintiff this circuit repeatedly holds there because of that there's a narrow construction and that there are no recurring events that can started over and over again with you because given your take on mr ward's position that he did not discover in his use of  that occurred between two thousand and five and two thousand and fourteen two thousand and eleven reading the crucial day amongst them is the court notes were emails were representations there's seven hundred eighty two action suffer filing to the german complaint t disputes that a rose in two thousand and five the disputes that arose during the seven hundred eighty two where where documents are being funneled through and everything all one has to look is at the complaint that was filed in september of two thousand and fourteen not once in that complaint is any reference made to a deposition from december of two thousand eleven that supposedly there was a suggestion that biomed knew it was getting bad information questions of knowledge when you realize that significant event occurred is typically a jury question your honor it would be if there was an issue of fact as to when a race in this case knew about it when complaint two thousand and fourteen issue of eighty years in the issue of fact if he says it occurred on such and such a date december the sixth well the i know you disagree of course but we do know from the complaint that they claim that the information that they got from that deposition you know the crucial deposition they claimed they had that was revealed to them in two thousand and eight in two thousand and nine in fact their expert witness they have an expert witness who said a document proves the s cam knew what they were doing was absolutely forbidden that they were getting trade secrets and that stack you meant was given it's actually in there amongst the  long before a half year before the crucial they need to harass so everything they have including the accusations in the complaint that biomet was aware all along it knew or should have known well how could how could s camera either have known or should have known that they were giving trade secrets but harass not i mean this is same is the same information it's the same standard big queues them for nine years and didn't file until long after long after the the crucial date in two thousand and eleven came in what let's let's assume there's there is nothing in their record that's been developed that indicates some knowledge i in the two thousand seven deposition that they didn't have earlier and so we we do need to look back to the question that the single of a cruel war what do we do with the public law section for when they're when pennsylvania is in acting the hands of a uniformed trade secrets act it specifies as to misappropriations that are occurring prior to the act that the act one applied to misappropriation prior to the effect of date and then it goes on to say including a continuing misappropriation that began prior to the effective date of this act which continues to occur after the effective date of this act with the legislature is making specific provisions for continuing misappropriations and using that term of art doesn't make clear that there is particular significance to their decision to omit that language i  in the second sentence of use of the act itself your honor i read it differently than the court does actually that's the strangling rule and with regard to the federal trade secret act they permitted straddling the something was occurring before the act was adopted you could you could sue on the basis of a continuing act afterwards in the case of court so that's not the basis if if if there was a violation of that was occurring beforehand  was to be able to straddle and to me my interpretation of that is is that continuing acts are a part of the rule infector so not a part of the rule that if it was occurring before an meant you should be so we know under the common law but that's not the case here with ascap that's not at all what happened with has come to me that confirms that you shouldn't be able to have separate accrual down the pike continuing toward the continuing tor logic and that's not the way that this court the third circuit even ignoring the pennsylvania cases which the court raised and everything that's not the way this court the third circuit has treated a discovery basis statute limitation is that you have a family complete a very within three years of your very first knowledge of misappropriation if you if you have knowledge or you could exercise a reasonable billikins to determine alledge you have three years  trade secret there after the three years after the first violation goes into the public debate sure i'm not sure i'd be candid with the court but i can tell you that the the defendant in this case the apple e in this case is this camp and they knew for nine years what was going on  belief through the e mails and otherwise in the complaint they actually said in the complaint that biomet was aware or should have been aware everything was brought out information and belief because what they claim was said in december of two thousand and eleven was from the i your form trade secrets act to the extent that appears in in the pennsylvania and if you did statutes that's not something that was brought in by any pennsylvania commission or the pennsylvania legislature that's actually an editor west law addition and administrative addition as your as your colleague was was terming if it's my understanding that those comments did not come in from pennsylvania from pennsylvania legislation  nor should it have needed to come in from pennsylvania because of the sky every rule stated limitations clearly on its face has to be enforced under the rules of this court files again this will be the very first case ever where repeated a cruel occurrences i'm going infringement would be permitted to restart a uniform trade secret you haven't pointed us however to a case where this issue has been said where they presented it under one of the other two state laws where they did delete the sentence that's true your honor it hasn't been attacked with that approach although narrowly and that's that we're just asking for consistency and how it's interpreted here it's it's much easier when you're dealing with express statutory language as sentence one gives you and that try to read  determining what was the intent for this what could have been the intent for that frankly i think it's a logical they have is is your honor has suggested that if there's something in there that you're uncomfortable with as a legislator if you're comfortable with something you leave it out the specially if it all of a sudden affects your other discovery based statutes of limitations certainly this is not the case where there's a nine year hiatus between first knowing and finally filing suit this is not the test case that should be the very exam at my recollection you say nine years what was what was the knowledge that that henry is who wired nine years before it filed suit in two thousand and five it discovered the crew who had the jury action in germany or no two thousand and five there was the discovery of the competitive product and they had an expert coming test fourteen samples only have been acquired if it was taken illicitly that was done in two thousand and five now these parties horrendous and biomed didn't just go their merry ways for three years between two thousand and five and two thousand  there was a lot of fighting that was going on but it wasn't until two thousand and eight better race brought the german action in two thousand and nine they brought the seventy needed to actions in two thousand and ten two thousand and eleven big at thousands of pages when there was more than just enough for speculation that that that and him had the necessary mental state oh there was a lot more your honor effect i mentioned previously there were thirty two items i could go through the appendix citations to you right now with it but at least three occasions and really if you could your honor take a look at the complaint that was filed in two thousand and fourteen we've got her a saint back in two thousand and five  ken should have known in two thousand and eight they should have know when the germination was filed two thousand and ninety should have known that they were getting trade secrets they're going on and i'm a man about what else can should have known and yet her rapist didn't know is it your view that you know i still think of the as question of knowledge as being a faction issue is your point that it was so much available information that that array is really new we are clearly should have known that they got the bullet and all came out of s caps documents now all of this was acquire in two thousand and nine two thousand and ten in the beginning of two thousand and eleven again before the crucial date they represented that they had everything they wanted they found gain reviewing seventeen o three a p p seventeen zero three those four pages what they claim is the revelation from there it's not in there that somehow s can should have known it was a trade secret it's not in there and it wasn't fact that very issue one looks at sixteen zero four is one of the e mails your honor reference and i would just ask when you get back to chambers to look at the bottom sixteen zero four where there's a representation as to the public or nonpublic nature of the information being disclosed and it would suggest that it will actually lead to them put this way it is contradictory to our understanding of the december two thousand and eleven deposition now fast forward to august two thousand and nine counsel just suggested that for s cam is complicit in any misappropriation we believe at this point in time that as can only acted on whatever instructions they may have for we've been provided by by a met with respect to these to cope our very take me back and who is the author they didn't discuss disagree with us similarly in two thousand and eleven the summer of two thousand and eleven the court said s camp could be a total innocent risk this regard they could be and then were this is it six hundred sixty nine and then our lawyer races lawyers said they could be agreed with the court that they could be a total innocent in the summer of two thousand what people whether the district court was aware of the discovery that had been exchanged or counsel had gotten  weeds of going through the discovery that exchange isn't the question for us whether there there was discovery before the deposition that gave you the very same storm warnings that should have triggered there the running of th revelation that gave you the necessary knowledge right so you're your adversary has suggested that is actually i in documents that were produced in august of two thousand and ten in march of two thousand and eleven iraq i don't what's different there is there is no evidence in any of the e mails pointed to or any of the testimony cited there was no reference to disclosure from by him that to ask him about any of the trade secrets that are obviously under seal not even in the record before this court so none of the emails they point to discuss the trade secrets that are in dispute below what we now know in december two thousand and eleven is they were in the same room at the same time discussing development and common sense would dictate that although to this point we had no evidence that there was a disclosure of trade secrets from biomet as cam to ask him was aware of now that they're sitting in the same room it defies common sense to suggest that as ken would have become aware of it now that we know the intensity of the involvement that it is these e mails have exchanges where they're discussing specific it's the specifications for it how the batches are coming along if you are not does that not show close collaboration where they need to be physically in the same room when their e mails indicate that they're working closely together on  details of this development you're on this is where we're a little hamstrung because those are not the trade secrets separate issue below the trade secret service and some sense one level of specificity down from that and you may be right that in  december of two thousand and eleven that still might not have been enough to pull the trigger maybe we were actually too aggressive or maybe the date was we have additional facts in two thousand and fourteen we filed the complaint we had learned a lot between december two thousand and eleven two thousand and fourteen so to an argument appeal is that deposition and specifically learning from that that position that they were working closely together on the development of these two powers that seems to be the same information in it we respectfully it was it was not it was a level of intensity and and concurrent work that we were unaware of before and maybe maybe it doesn't strike you as as a compelling difference but that is when we became aware what if if and when we get to a jury we will have a witness on the stand and said that's why we went from suspicion to probable cause and that's not the right phrase but you get you get the point what do we do with the fact that your expert has already said something a little different than that as to ask him i believe he said that as to by a man and that's kind of where this gets confusing we were there are certain that biomed had stolen our trade secrets it was whether pest cam was as they were saying in two thousand have been an innocent supplier to the guilty by im collaboration with the trade secret your honor is next from actually point and it goes to the language i read earlier and anakin gleason which is all right so you've now been presented with this evidence that should that that a non deaf dumb and blind person would recognize raises issues and what the case seem to suggest is you have if you put bury your head in the sand we're going to find the statue of limitation we're going to have imputed knowledge you to special imitation starts to run but if instead of burying your head in your stand or filing a lawsuit what you do is you aggressively seek out further information which is what we did we exercised diligence through the seven hundred eighty two process it raises an interesting policy issue think eskom wasn't in repose they didn't think they were off the they were getting it assuming you know for these purposes that they knew they had stolen trade secrets well they knew the jig was soon to be off this isn't a situation where we were lying in the weeds it was just a question of when we're now aggressively going  that you didn't have to dose actual knowledge that they were stealing your trade secrets i think that you should have been away or i was on the reasonable same reasonable suspicion i'm sorry to the full suspicion might be phrase we we were under were i think that at some point the point where the suspicion became enough that we could act we believe things but that will be the testimony at trial if we get there that that's when we said this to this innocence we just heard four months ago that they could have been innocent bystanders to this we now know they weren't bystanders they working with statement exactly who said participants were actually in the room as part of the development team that was the that was the statement that they were cautious is there that they're physically present as opposed to conferring through other means as opposed to sporadically interacting i guess it's not it's not a it's not of a literal where there was a phone call or email it was that they weren't just sitting there in pennsylvania getting e mails saying do this do that through this especially in light of your honor's e mail i read you at sixteen zero four where there have been specific suggestions as to what this the public were nonpublic nature that suddenly became impossible that they were suddenly is a strong word where it became increasingly implausible that that line was every member of there was a period of time where in germany there was found to be no misappropriation by biomass and i suspect until that was reversed it was affirmatively found that there was misappropriation if we had filed suit in that window of time speculation on my part but the timing works i believe that we were not in a position to actually pull the trigger as to ask them until the german court confirmed that i am had had as a factual matter taken on trade secrets counsel even if there was a paycheck by paycheck it was almost exactly the same phenomena were a policy was put in place that turned out to be unlawful some of it pretty statute period some of it after and the court found that each pay period where the pay was unlawfully low was an independent tour and so you could get recovery for up on a paycheck by paycheck basis within the window but not before the window but if you were going to look to that sort of clean the model we also had the supreme court's approach to that very similar issue in led better although congress came in afterwards and enact a statute that treated lower pay for women differently the courts analysis in them but the majority was that you look to the the first the decision that that put that policy in place and that all of the subsequent checks that followed in a sort of automated way were continuous if they were triggering  why wouldn't that control your i think if you look at the two cases that are before that we did brief because not so if an organ breach both talked about new independent injury and there's also a notion in pennsylvania that i don't believe was implying lead better but my my my recollection is not as strong as your honour's about the uncertainty of each amount so next year as ken could make five batches the year after they could make twenty the year after that they could make zero and so sitting here today we couldn't unlike gordon bridge which wasn't a misappropriation case but is helpful for the analysis we can't sit here today have a damages expert tell us what the remedy would be on a go for basis because each you know they're there could be and frankly tomorrow ask