i should say just for the public record we had another case for the united states versus the media silva but that's been submitted on the briefs thank you very room thank you your honors if it may please the court  and it with all good intentions i hope to reserve five minutes for rebuttal i'd like to address two issues today that i believe lead to a requirement to reverse the bankruptcy court's decision but ultimately the district court's decision because we're here to nd level review and that is dealing with the the courts the bankruptcy courts erroneous use of a legal standard of using readily ascertainable to deny protection for massimo's custom care analytics trade secret and then also time permitting the failure for that court to for the bankruptcy court to even address a request reasonable royalties where there was a finding that there was no unjust enrichment or actual damages provable for certain stolen documents i believe that it i do not believe that it's any further  disputed by the parties that it would be an error for the district or for the bankruptcy court or any court to require a plaintiff in california to prove that it that in order to qualify as a trade secret that something must not be readily ascertainable i think that that has been abandoned by the by the defendants in this case by the aca leads in this instance to the th circuit that was not argued at the district court or at the bankruptcy court it was then argued at the district court to support that after the bankruptcy court relied upon that on the finding that was that the only basis for the bankruptcy courts determination with respect to that this is a very important point i think and i think if we look at the breeze for it carefully it comes out very clearly with respect to the actual trade secret at issue before this court that was the only basis for the finding and i believe that so tara admits that in its brief it talks about there being three different bases for denying trade secret protection but the trade secrets that are being discussed are not the trade secrets actually at issue and let me you a quote from so care's brief that i think helps exemplify this at the tears brief at pages twenty two dollars twenty three cents it says the bankruptcy courts rd ground for decision and they called it the rd ground for decision it was in the rd round for a decision on the same trade secret or the proper definition of the trade secret says the rd ground for decision addressed massimo's insistence so massimo was presenting its trade secret under this particular characterization that it's trade secret relating to customize alarm analytics included it's knowledge that customisation was important to hospitals this was actually as the as the bankruptcy court recognized a recognition of an effective sales technique it wasn't simply doing analytics on a hospital's data it wasn't simply doing analytics on one versus many hogs it was in a generally known about analytics in a broader sense what the court what the court found with respect to just analytics was there was a publication out there which was relied on pon heavily by so tara which was to say hey this is out there in this publication and in that might actually publish this this document twice was let's take a lot of data from a lot of hospitals and use that to try to convince another hospital to change their alarm settings alert devices which seems like you know in the broader sense that type of marketing strategy just be just out there the district court had actually found that with respect to that horizons article there was not a finding that it was just out there there was a finding that if you went into a hospital you would learn you could learn from that hospital that they thought they were unique people so the white paper was the same as the horizons article it discussed the idea of taking a lot of it was it was actually simply a a report of a study of a lot of data from a lot of hospitals already to where it was what marketing know it was not a market well it was used yes it was used to told everybody about it they told everybody about it and what they did and what the record reflected in the findings show was that they they took that blart scale study walked into hospitals and tried to convince those hospitals to change their alarm settings on the general care floor in order to get them to reduce the number of warm so that the caretakers could respond other there why there was too many too many alarms the hospitals in the findings reflect this were not receptive to that approach because the big data approach  they didn't believe would solve their problem they didn't believe they fit within the large scale data that was collected at these various hospitals and so that horizons article and in fact the corded knowledge that it wasn't the insight it did not provide insight to go to a hospital and tell that hospital we can solve your problem we can process all of your problem by running your own data and not just doing that as part of a device but doing that as part of the sales process to convince them that this product could work for them that was the key that massimo discovered which was if we do this on this hospital's own data and we tell them this will allow you to see what would happen on your care floor with your patients and that you will only have x number of alarms that you can actually handle it interesting point right that is in effect put the bankruptcy court said it said anybody could learn that the problem in the trade secret wine california and it's different from other states in california the of language from the trade secret statute that was it's generally known or readily ascertainable was stricken from the statute and california said we are not going to do an analyzer like if it was a patent case if someone could figure it out or if it was easy to figure out what the court what they what the legislature decided in california is we are simply going to look at where did that information come from these hospitals and there's findings were under  eighty's this wasn't like the burger king ad that the bankruptcy court and alledge as to where there was an aberrant have it your way these were private sales these these sales processes go on for a long time and there are n d s that are better nondisclosure agreements sorry for the mnemonic there non disclosure agreement so there were confidentiality agreements with the hospital and those hospitals therefore couldn't just tell others that's how massimo had gone about selling them so you're the premise of your statement is that california did not include the requirement that some information not be readily ascertainable that's not in the statute but when you said that you included generally known the information not be generally known or rightly ascertainable those are two different things and information that is generally known can't be subject to trademark protection are you arguing that california go ahead and trademark you know the trade secret law in california does and does exclude from trade secret protection that the that the information was generally known and understood but the bankruptcy court did not find it was generally know trying to have as a traceroute get really was a trade secret and then that it was published twice in the horizons magazine white paper and that it was generally known so i mean those articles publishes analytics  someone with more information and so the just the bankruptcy court was finding that's putting out there what we're doing the idea is to get these hospitals not to be concerned about alarm fatigue and you know not respond to alarms are worried about that so this whole notion of the analytics was put out in those articles so the idea of doing now a little was put in the into those articles but that was a separate characterization of the trade secret simply the idea of doing analytics and what the district court or what the bankruptcy court and then did and what sotero acknowledges didn't briefs that with respect to the insistence of massimo that the knowledge was important to the sale of the bankruptcy courts here that i think in for coffee  well you're what you're claiming to be the trade secret is kind of slippery it seems like it may have been different in the bankruptcy court before the district court and in your briefs i don't really even as we sit here today understand what it is you claim with the trade secret could you just articulate that so we clearly know what if this is the basis of your claim yes the trades well the trade secret was many factors and the and the bankruptcy court noted this after going through those st two reasons that soteris identified and that that you just question me about horizon's article does not disclose providing them a linux to a pair location using the care locations own data using the analytics to persuade the customer to optimize their alarm settings persuade the customer given the customer confidence to buy it was an effective sales tool facilitating a successful deployment the th point gathering successful data is discussed in another section when the court when the  with that trade secret that's where the court then two paragraphs later in three thousand six hundred and sixty nine said providing care locations is reasonably ascertainable and thus not confidential or proprietary that's where the error occurred with respect to the trade secret that i just articulated and it also included she stated in terms of convincing the customer massimo had articulated that as knowledge that it was an effective sa low but you know there are other reasons and when i what i gathered from it was this idea and which i didn't mean when i my st question i didn't mean to suggest the white paper or the other right but just the general idea of using analytics to market this kind of device doesn't strike me is so unique and then to say it's a trade secret to apply that technique to a particular location how could that so how would it is so you have what is so distinct about that as apart from the sort of general idea of using an analytical approach to marketing a device of this kind well that's the point in the trade secret law we don't look at in california whether it was would have been easy to figure out we simply figure out whether or not that whether it has been out there it is generally known in the bankruptcy court did not find it was generally known and i go back to soteris brief again because there were not other reasons with well that this is a chapter for the method of using it in a hospital but the use  anil there was no evidence one way or the other or findings that using the analytics in the hospital was generally known there was evidence that it was published in the horizons document in the white paper but not that that was just generally a way of selling that hot items reporter publication is an industry publication yes and so and so really known in the industry once it's published and this is significant because it's generally known it doesn't have any value is a secret so so that's a separate issue and i do want to reserve some some time for a bottle but i think there's a very important finding here that addresses these questions which is what the court found it a e r one hundred and sixty nine paragraph three thirty seven is that massimo tried at some point a big data approach mr wells published massimo's results in the industry journal horizons but hospitals were not receptive this is the finding of the bankruptcy court  massimo eventually realized this didn't just come overnight eventually realized that hospitals would respond if it gather that hospitals data and then applied the same analysis to the individual eyes data and very importantly after mr wells the mass employ moved to so tara he persuaded them to cut to use these custom alarm analytics when selling visit i'd like to  your honour's may it please the court let me begin by just addressing two points that came up in the st part one is that the trade secret was the distinction between retrospect analysis generally and retrospective analysis as applied to one hospital that's how the court understood the trade secret and that's how it's articulated in the decision and that's it thirty three thousand eight hundred and thirty nine of her suggested the court's discussion in paragraph three hundred and sixty seven is a moment where the court says i found that customer analytics was disclosed in the horizons article and in closing massimo made argued a series of distinctions from what was disclosed in the horizons article so she was addressing an argument that massimo made in closing she wasn't recognizing those four elements as additional aspects of the trade secret and then she went on to address them and i do think that the court doesn't need to address readily ascertainable that was a rd and alternative ground for the bankruptcy court finding the st two grounds that you would agree to that was that's not california law i think it's not california law clearly it's that it's an element of the definition of a trade secret i think there are a number of california cases that say you can consider readily ascertain ability in considering whether or not information derives independent economic value from being secret i think it can be an evidentiary consideration and then there's that comment in the legislative notes about whether or not it's a defense to misappropriation but as a requirement or an element of the definition i agree and so the court st said it's not a trade secret below witness who is supposed to defend this distinction we had called the distinction meaningless in our opening brief and in massimo's opening statement they said we think that distinctions key that's the crux of this and below musin is going to describe to you why that distinction is so important and the court found that the distinction was nonsensical and the district court said that that finding was intitled to deference and i think the court can this this panel can find that custom customized retrospective analysis is not a trade secret on that ground alone and seventy four dollars she says the key idea customized analytics was imbedded in the article and it's not true that the article merely described a study of aggravated data and made recommendations about alarm threshold and delays based on that aggregated data if you read the article the article is addressed to clinicians and encourages those clinicians to set internal policies for the for given populations based on this kind of automated retrospective alarm analysis and the horizons publication that we're talking about was an issue of horizons it was an issue of horizons that was published for a conference on addressing a lot infinity and all of the articles in the horizons publication were intended to recommend methods that clinicians could adopt let me ask you address why what you didn't a sales technique be a tr secret we're not we're not suggesting that a sales technique can't be a trade secret i think that's a red herring but the court found based on the evidence at trial that this particular technique wasn't a trade secret that there was no meaningful distinction between retrospective analysis as applied to a broader and narrow dater says you haven't seemed to suggest that so terribly got the whole idea from this from the source of information that was provided to them by the two fellows who came over so the analytical technique of retrospective analysis was developed by jim welsh when he was it massimo and he published on that he was directed to publish on that initiated that kind of analytical approach without without him being out sotero no and not only that i think it didn't have a kurd doesn't that suggest that you got this information improperly know in fact we embrace the idea that jim welsh brought this technique to so tara he had published on this technique and the testimony at trial was that jim wells walked into the office of one of the junior engineers and he drew the grid on the whiteboard the same grid that's in the horizons article available for other clinicians are dotted was withdrawn the grid and that's it nothing else yet and the can you get all the documents that he brought over he didn't take a look at them and so there was no here's another strategic methods that you might utilize that the bankruptcy court judge found that there was only evidence of mr wells only opening for  five a very very small number of documents and with respect to the one document where she thought that the document was a trade secret and that there was some evidence of use she awarded damages she actually awarded certify to that over a period of time  so the other point i wanted to make about the horizon's article in the white paper and i suggest this is just in the briefing is is given the broad publication of this technique i think there was no reason for jim welsh to know that he was using improper means when he introduced that technique to sow terror and i think that's an alternative ground for this court to find that there wasn't misappropriation of that trade suit because there was no reason for jim wells to think that he couldn't draw on the whiteboard the same grade that was reflected in the horizons article if the fort would based on downloading of documents the mere acquisition of documents one had to do with customer information trade secrets and the other had to do with technical information trade secrets and  it is true the bankruptcy court did get one the district court got one thing wrong with respect to those documents which is that the bankruptcy court did find that those documents had been misappropriated because they were downloaded on the hard drives by welsh and hont and in so far as they were so terra employees and wells had connected his hard drive on a handful of occasions to a so terror computer and hunt may have used this terror hard drive the court found that there was acquisition and misappropriation by vicarious liability but the court with respect to the customer information trade secrets massimo argued made allegations of use with respect to some of that information and the court addressed those allegations of use and in certain instances the court found that there was use and awarded damages and in other instances the court found that either it wasn't a trade secret or there wasn't use with respect to the technical trade secret documents massimo didn't make any allegations of use they sought damages based on the acquisition alone and what the court held in its decision was that the there one where the court says that i didn't find that there was any use or actual benefit with respect to the technical trade secret documents and therefore damages would be inappropriate and with respect to the customer information trade secrets the court explains that where there was use she awarded damages but with respect to all of the other customer information trade secrets the balance of the documents she fell in that there was no use and no benefit and therefore there were no monetary damages and those findings which massimo hasn't challenge those findings are sufficient to encompass their royalty claim whether or not she specifically addressed the royalty claim in those discussions she said no damages without any actual benefit or use and we've cited a number of cases that make that point the most important of which i think is a jack so which says that a royalty is for past or future use and that the when when when a royalty is appropriate is when there's been valuable but non measurable benefits here the court found that there was no benefit and no use with respect to the rest of those documents and that's why she didn't award a royalty and the same point with respect to use and royalties is made in all division a t n t and atlanta and the last point i want to make is on reply massimo makes an argument about how so terra had access to the library of documents that welsh downloaded there's no evidence in the record that he had access to them the evidence was that he only opened a very very very small number of them but in any event that argument about the library of documents that's an argument that they made to the district court the district court didn't find in their favor on that argument they didn't make it in their opening brief on this appeal and i think it's been waived and in any respect the court disregarded the expert testimony addressed to that paragraph one hundred and sixty eight thousand one hundred and sixty nine massimo as an expert there was a there was cross examination a trial where massimo's actually said that even if the documents were sitting in a draw and no one knew what they were there and no one had ever looked at them that massimo should still get damages for that and the bankruptcy court specifically rejected that testimony and found that it wasn't credible expert testimony and with that i'll yield the lesser additional questions for you of the balance of my time thank you briefly very briefly your honour's i want to just respond to two very small points st off it was not just putting that concept on the board as i mentioned earlier the bankruptcy court found that mr wells persuaded so quote the presentation is a very good sales tool to talk about so tears ability to help our customers with alarm management this was a presentation put together by mr welsh it was not just saying hey let's do a large analytics  briefly on the issue of whether or not this was something merely from closing this wasn't a change of the trade secret that came from closing the bankruptcy court quoted to our opening our trial brief process knowing from his work at massimo that this technique was an effective tool in convincing assisting hospitals to alter their alarm policies that was part of the trial brief info opening statement we