i think we're already there police records good morning and since i am from hawaii along i mr i represent motor international let me just address a couple points if i could first the core of complained that he was suspicious of the fact that those electronics was using its technology in its products in the summer of two thousand and eight at the hearing level the court was required to listen to motors representation that it was not until late twenty ten early two thousand and eleven that it had all of the understanding that it needed to understand that philips was infringing upon its hands of the fifth or i get to that i do have a question about that as i understand it if we find that the trial court was correct on the statute of limitations issues wouldn't that control all of the claims in other words wouldn't the statue of limitation are apply even to the claims that the case to be preempted that's true for almost all the claims your honor except if we were if you were to remain and and we were still to have a breach of contract claim which did not relate to a trade secret we would still have under hole y a lot a six year statute which would if the court also agreed that it related back we would still have a breach of contract claim which i believe is count we would still have that  and it did not realize that it had significant hearings that had to go through to prove patent infringement so by the time we came on board in summer of two thousand and eleven it knew that it did not have my problem is is that that the relation back it in order to relate back it's got of a right is that the same transaction or occurrence and here what you're saying is is that there current production of occurrence is philips acquiring basically the cookbook to produce the product and the samples back in two thousand and one when it did not return those until much later and then became clear in twenty ten twenty eleven that its conduct way back when in keeping that it did not return the technology it may have physically given back the sample as i understand your complain eighteen where it was just the barest of components of being able to allege infringement a cleric to complain a lot so i guess the concern i have is in our you're able to rely on that relation back doctrine when there are no actual facts in your form eight hundred style original complaint that conjures up the notion that there was this relationship that was going on between the two parties back in two thousand and one for the patent infringement case all of the various contracts between the parties in oh you the in the way the exchange of samples the on site review of materials that wasn't needed for that but it was certainly encompassed by it because those facts that conduct is how philips acquired the technology so on a notice pleading that was required at the outset they were looking at what what were the core assertions that need be made against philips but the issue for the relation back is that it's that court condo it's not different conduct it's that producer of electronics goods basically get a head fake to moto hey let's take your subtle which aren't we the merits of your case here i don't really need to know but is that is is that what you're trying to amend your code you're your complaint there's nothing i could say in the complaint that really had anything to do with setting the basis for damages for missed opportunities right and there's no reference in anything you filed so far that deals that even alleges and we would have otherwise during this interim period unable to get contract with x y and z we were precluded from doing that because we were misled by philips and you know that in the complaint yes yes run of the fraud and and i think the east warrant cases is critical on it it shows us that the cost for that missed opportunity in of itself is a damage and that we don't need alleged damages in the complaint noted you allege the unfair competition or one of the damage zero would be the missed opportunity to give me a page number was not binding and not exclusive rights so i guess what i'm trying to figure out is that based on the documents at hand there's nothing that specifically  directing the parties towards some exclusive relationship where motive is binding itself in a way that it's denying itself illing with other potential parties in terms of getting in some joint venture everything seem to be pointing to the opposite am i wrong about that just slightly your honor ok when moto came out with its technology it went to a lot of produce little speakers inside our our laptops and desktops because i would really have hands are our product but you've got to find a producer so mona went out it was in p s p and philip said hey we'll go fifty fifty with this on this you give us your technology we'll benefaction for you look at all these opportunities and so what it was kind of white they didn't make it this couldn't go out to a lot of other manufacturers while they were still sharing their technology with with philips now maybe that was naive maybe that was bad business sense not on their part but that's a factual determination that we need to show with respect to damages th morning may please the court i represent ellie philips at the core of this dispute is the fact that the second the many complaints pleads misappropriation of trade secrets that happened thirteen years ago and they tried to amend their complaint in two thousand and fourteen too late the district court found that it's too late because first of all two of the counter preempted the other two were time for your question judge i'm alway their all time part well but let me well fully knowing infringement are that in fact we had this business relationship and that's how you got this information wouldn't that arise out of the same facts and circumstances no you are this is a question of whether the complaint relates back  first and very importantly in dispositive the issue in relation back was waived we specifically addressed in our motion to dismiss below the relation back doctrine we said this does not relate back mo not respond to that argument they only raise relation back for the first time on reconsideration the district court found you cannot raise new arguments on reconsideration in the district court address it then on rico and then to continue to in the alternative address it now to get to the merits of that issue but if it didn't quite come so strongly out and say this is wait oh by the way i have some thoughts if i thought the district court said it more like this could be waived this could be grounds for waiver but in any of this doesn't relate back is that a better way of reading the recon decision i don't think so your honor the district court gave to alternative bases to deny the motion for reconsideration the first was this is not appropriate for reconsideration this should have been raised earlier the second was and this goes to the substance of the question the original complaint does not provide adequate notice to philips that this was an allegation of fact that there is a bare bones paragraph and it is bare bones that says the infringement has been willful suggests nothing in any way about a contract that existed a relationship that existed some opportunities that were miss misappropriation of trade secrets mota has gone out of its way in its briefs to accentuate the difference between patented materials which are public and not patent materials and the allegation that we willfully infringed  in no way puts us on notice that there's going to be an allegation of breach of contract trade secret misappropriation unfair competition or fraud so the court was in the second alternative ground correct in denying that motion and very important imposed waiver so we'd have to read that to really be alternative finings so assume we don't and and were and we were looking at the merits not that then it would be preserved for appeal that is correct i fact the district court had not said what it said and said i'm finding that this should have been raised earlier the fact that the district court went the extra mile and said in addition in case someone disagrees with me here's the analysis of the m opposition mota completely fail to address whether its contract and trade secret misappropriation claims relate back this was raised only in philip's pleadings and on the following page on this basis alone the court would be well within its discretion to deny re in the court merely recognizing that at the discretion it got the issue but then didn't actually act on that discretion as dead weight at it or even if i can see that reading it's the language a little bit ambiguous went when see how you could read it both ways we think it's in view of how the court approached this clear that the court was denying it on two different bases but it doesn't matter to us on the merits we think it's not a close case on the merits there is nothing in that original complaint that suggests in any way that we should have been on notice that there would have been a breach of contract fraud misappropriation it's just not there if we cited cases many cases on this  point that just because there are some interrelationship between the facts the key is there has to be an interlaced unship between the facts that are pled in the original complaint and the facts that are pled in the later complaint in this case the facts that are pled in the original case have nothing to do with any of this the only facts it's not even a fact the only allegation in the original complaint that could be pointed to is this allegation of willfulness but there are no back up paragraphs that say here's why willful it could have been willful for instance because we knew about the patent it could have been willful for any other number of reasons but there's nothing in the complaint that suggests that it was willful on the basis of the facts that formed the basis of their new conflict so for that reason ask you about why that matters i mean year view of the statute of limitations as it is that dispositive that what they were looking at three years for six years and doesn't really matter based on your theory i'm sorry but why are we arguing have a flag on here in the second american plate is it j thirty seven and a thirty seven as you can see is three paragraphs that happens zero factual allegations they simply point back and say every because of all the things that we've s before we also have an unfair competition there's absolutely nothing in there that provides any basis for an independent basis or in any cause of action in fact motor mit's in its brief that its unfair competition its briefs mota points to paragraphs fifty four fifty seven and fifty nine as somehow showing an independent cause of action apart from the mis representation of the misappropriation but there's nothing in those paragraphs that has anything other than misappropriation their fraud claim is that we allegedly fraudulently told them that we were interested they gave us confidential information then we made products with that the question of preemption asks look at the complaint remove the misappropriation stuff and have restated a claim not can you come up with a claim that's a different question if they had originally filed the claim back in two thousand and twelve where they had supposedly this is on j sixteen s supposedly disclosing where alleging this missed opportunity theory that's it and there's absolutely nothing in that that  that they lost opportunities all of the stuff that we just heard that microsoft and chrysler and all of these opportunities that they couldn't pursue because of our relationship it's simply not in here now i am not saying that they needed to plead specific customers that they lost or perspex ific opportunities but they need to say that they were harmed by this and the only statement of harm in the entire complaint is paragraph fifty nine and it's the only place where they say that our alleged misrepresentations cause them harm and the harm that they allege if they didn't get the share in the profits of our products there is nowhere even a glint of a suggestion that they missed opportunities that's all in the papers now they're stuck with this complaint the district court properly found that they had waived their request for leave to amend and properly are from that agreed with us that they shouldn't have leave to amend because it's not timely and would be futile they're stuck with this complaint this complaint does not state a basis independent of misappropriation for the  i was going to move on to the leave to amend it as have length please problem with this whole approach i've never seen a circumstance where a where you can say well there's a choice of law problem here but we don't have to choose as long as we both agree that we don't have to choose then that the court can just take whatever wants one from column a word from count baby i mean it seems to me that it's a pretty easy announces that the contract clearly has to be analyzed under california law and all the other claims would seem to be the breach of contract law statue of limitations is what governs here and that is four years in california not six years without respect everything else hole y is probably the right law everybody agreed however when they say everything else what would those so it is a question that has not been actually decided by anyone or advocated by any i think there's a very good basis to come to the conclusion that that you can to judge which is that a white seems like the natural  naturally right conclusion for those i guess the point that everybody has agreed on is that with respect to preemption the laws have developed identically and for all intents and purposes are the same for the issues presented here and with respect to statutes of limitations there are differences in the statutes of limitations and we've pointed those out in our brief but they don't matter to the resolution of the case ok with respect to the you know i want to move to the statute of limitation in the discovery will because this is really important and and to me is the crux of the case the judge the supreme court in the california in california in the jolly case has already decided that when you have a suspicion of of contract well yes they did because they admitted in their opposition to their motion to dismiss on j a ninety nine they said mr perasso at that time suspected that we had our technology in their product but the case law is very clear on this point the question what type of wrongdoing is explicitly answered by jolly and by the fox case i thought you sent that quiet trade secret law applies so why are we talking about a california supreme court case those cases were adopted by the association of homeowners in the newman case ok hawaii has adopted california exactly one fifteen hawaii to thirty two they adopted the jolly suspicion of wrongdoing reasoning and all that so the question is what does wrongdoing mean the fox case is really important the fox vs african case explicitly asks that in answers that question and sa we're not saying you have to suspect every element of a particular cause of action nonna you have to only suspect that any type of wrongdoing has happened that you've been injured and that injury has come from that wrongdoing it is not explicitly nonspecific as to a particular cause of action they declined in the fox case to take that approach and so the fact that they investigated a wrongdoing is proof positive that they in fact had a suspicion of a wrong doing we don't parse which wrongdoing at that moment in time they were under an obligation to investigate and sue or lose their rights and that's exactly what the supreme court of california said you cannot wait for the facts to come to you once you have a suspicion of wrongdoing you have to proceed or lose your rights and that's what happened what if the person in costco for vote as said self serve i wonder if this is  j ninety nine and in paragraph twenty two of their second a minute complaint there isn't this question about is the wondering really enough to have suspicion of wrongdoing the language of the case has been admitted it's all over motives brief mota agrees that the suspicion of wrongdoing existed in two thousand and eight the only disagreement is what the legal impact of that suspicion is now very importantly this is this is critical and something that may be missed on first reading of the briefs if mota is going to rely on the discovery rule it must rely on something in the complaint box states this explicitly if you're going to rely on the discovery rule you have to have pled facts a when that discovery occur and why you couldn't have discovered it earlier the only thing in the complaint that comes close to that is paragraph twenty two that refers to this summer of two thousand and eight cosco experience so all of this notion that we discovered it later it is absolutely irrelevant it is the law in california by the way in the april case that motive cites from one thousand nine hundred three it says the same thing the supreme court of california and hawaii have been very clear on this you have to put it in your complaint so the only day that they could possibly rely on for discovery is two thousand and eight but that's already too late they've already there now six years after that that for all the political statutes they did you thank you very much just one point your honor i believe that the three cases that are most relevant under statue limitations are direct t v thomas vs q donnie and the yamaguchi s and they clearly say that the plate of must have knowledge of all the elements of the cli and at that point that's when the statue limitations starts to run and that's all i have  still he didn't make all that connection and in the summer of two thousand while i'm standing at costco when he's standing and costly sees a philips home or entertainment system a boom box that looks different than the ones it had years before the size of the speakers has been significantly reduced but it's not as if you can buy that take it home take off the back and go oh their science says mo cutey technology when he then had to do was go out and reverse engineer that to see if that's his technology and that took time money and effort and that's why i say on the facts before the court at the motion to dismiss at the standard that judge kern was supposed to be looking at he should have given all the sway to mr prot so it's testimony that it wasn't until december thought the law is a suspicion of wrongdoing now if it's it's an understanding of all the elements involved not just a suspicion that way that that may be something that he needed to know and was told