as to whether or not this court has the power jurisdiction i don't know or are if we don't do we have to dismiss the case there was a room that a tour order enter into that order was never accepted or rejected if it works after it of course your friend across the aisle could not appeal you could but they couldn't if they were rejected they're the only thing the  the court use the word remez the court engaged in a room in a church type exercise that we're very familiar with it also then said and its bottom line that the motion for a miniature braun's motion for a miniature is granted in part however the court did enter a final judgment with respect to the assignment of the four fifty one patent which is fundamentally of course why we brought our declaratory judgment action to begin with there is a final judgment there but i agreed that my brother i should say i would propose that my brother wear this case to be returned and that is her fundamental submission today that for a variety of reasons the case should go back to judge brewster and if i could they know that mr rogers has to make that determination does he option on or on not at her what does that do to the what you call the caboose for separate reasons i believe the caboose trial has to go back as well and i just want to know if the been taking one step at a time  urge the court to consider as i know the court well are composed trial arguments namely that was a jury trial other something that's very foundationally missing here which is the jury it was the jury it was the jury that should have heard the evidence with respect to the relationships between three and cities watchers braun and then vi are the engineering f the entire case of the other side is based upon this mr rogers responding to braun's criticisms of the rogers patent that it wasn't working out hires v mr we're getting into the merits of the case we are i'm sorry and my fundamental question is this can we speak to the merits of the case you may be right you may be wrong but if our hands are tied if we ha  it seems to me that we cannot deal with the caboose we cannot deal with anything in this entire shooting match unless the case goes back and if your adversary they can come up and say that there was air in the room that it's her and they want to go back to the original damages that were established but in order to get to the merits of your argument or their argument we have to first determine whether or not we have a as i understand the remit of her practice and it's not even controversial we cannot touchett unless the district court first announces and there has been a election made as to whether or an opinion which is that without a case so to speak that would be the quintessential advisory opinion just you know i and members of the court i would draw the stink chin between the cross appeal and our appeal we have a judgment that is a final judgment entered against us that includes the assignment of the four fifty one panel  we're in title i believe to file and we've got a timely notice of appeal and to have that appeal heard i do quite agree that the cross appeal to the extent that the cross appeal is seeking to call into church that is improper and we have so argued so we agree but we do not think that the if i may call it that the appeal in chief is thereby non jurisdiction proper here to the contrary because of the nature of the judgment we had no choice but to file a notice of appeal on in fact to brief the issues and then to determine obviously what our response would be to their cross appeal do not have to cross appeal so that issue of remeasure would only be here your honor had it is only here by virtue of the cross appeal so i think the cross appeal do say the case needs to go back it needs to go back for a new trial for a variety of reasons and and some of them from our perspective are seventh amendment the judgment in our judgment should not and cannot properly the equitable determinations of the court to be a freestanding issue that would not be subsumed to now or we believe the short answer is yes with an important qualification we believe that the quote and if i may address the merits of that one of our fundamental points that we would leave the court with today for its consideration is that under the law and under common sense under hornbook requirement this is and has nothing to do with the values of notice pleading it has everything to do with fundamental fairness and that's what this court was getting at and m a o i systems which judge gregersen served on the panel as in  three and then later and i macs and i macs case if i could spend one minute of my time on the imax case and imax the imax lawyers stand up and say your honor to judge jensen look at exhibit you it is so specific it refers to dimensions and tolerances and this technology technology has different judge see it's nice that that's not two dimension and tolerance and that is so as milgram teaches in the trade secrets horn bought it is necessary for two vital reasons that go to fundamental fairness the defendant has to be able to know prior to trial and during trial what it is that is that issue here my brothers on the other side clearly concerned w possibility and we believe likelihood of a grant of summary judgment against them if they stayed the course staying the course evolving nature of the trade  secret issue throughout the litigation the trade secret definition which began with particularity in the first amended counterclaim and we lay this out in the briefs phase one cost fifteen thousand dollars they pointed to rogers pointed to drawing number one and drawing of or three that arguably satisfies the imax requirement but during discovery during summ judgement the other side says that's not the trade secret we're not limited to that we're limited only by all of the combinations that can be derived from those five and we have given the court the calculation i don't think my brother is going to object to the calculation that combination gives us at least are that approach to trade secret definition gives us at least jury gets a proper curious trial why isn't that harmless or well your honor the jury and is not obligated to that are if i could on the trade secret the process and procedure is so vitally important the trade secret has to be told to us not to the jury it's not up to ok well if you if you can you defend the case based on what was disclosed we could not because of what we which with all due respect to judge brewster he got the meaning of trade secret wrong he said the trade secret can in fact be a combination and we put before him iran or in the motion in lemony so this is not latter day inspiration is to error low and the motion in lemony number seven we specifically said the other side started out by pointing to design one and design three they've moved from that if i may say there's a reason they moved from that before fifty one patent is not design one and it's not designed three and their own experts testify to that they have a powerful and i believe quite dangerous generative theory namely we can claim very broadly mix and match combinations what is the case citation for that they've come up with a one case we've come up with night circuit law they've come up with one case from the northern district of illinois that they say justifies next and match we told the judge in the motion in lemony they're trying to mix and match we can't try that case it's  a careful reading of that the court will the cern the judge their district judge not binding on this court nor those who will annoy in fact engaged in an i am max reasonable particular kind of analysis that is so foundational but if i could just say two other things as my time evaporates one there were issues going to in light of the very important issue of ownership outside the statute of limitations mr rogers returns this is a tell tale it's just one one example of a not the case i'm talking about a statue of limitations issue that should have gone to the jury the jury was not permitted to even we credit him for that but then there was an issue well who should pay who should contribute to that braun then in march of one nine hundred ninety three wrote the check for one half we refused to pay for the full tab but we said for half is fair respect to the estate but his testimony at trial he demonstrated the relevance of this issue going to the jury he said we did not want her to be an issue with respect to ownership of phase one you're honest it's undisputed braun paid every cent two hundred sixty six thousand dollars for phase two it paid for all of phase three it has paid over a million dollars just for the machining it has worked on the ultra site which is a permitted to go before the jury the jury didn't get to decide this we paid the bill clog the doll testified who is with all the engineering but he's got a terrific group of engineers in santa barbara we credit rogers for having yes this is a good group and we said we can work with this group we can work with this engine hearing from so we enter into what purchase orders that they knew about mr rogers knew about it don't lose because there are an expert said the four fifty one is not in fact any of the joints those five drawings in face one and all of those drawings brought together fifteen thousand dollars several weeks publicly known elements undisputed publicly known elements that's when the real work began in phase two for which braun paid for we should have been able to try that before the jury i think the court for its attention i'd like to reserve my twenty the court then went on to say if the request was a prop pursuant to a motion for judgment as a matter of law the court may remit the vam a just without giving the prevailing party the option of a new trial the court very specifically denied bronson motion for a new trial the court specifically granted frons j m a well and reduce the damages what judge did was he said as a matter of law that rogers could not recover unjust enrichment damages could only we cover actual damage and then calculated wh he believed to be the maximum amount of actual damage that was the legal ruling it's interesting that along with that ruling and we've cited his statements in our brief the court made several have them at the very same time he was taking argument on this several very telling comments when he said that yes it's true that a wrong doer shall not profit from his wrong then he found that there was substantial evidence supporting the sixteen million dollars that were awarded for tat past damages he said the evidence was that sixteen million dollars was on the lower end of the scale of past damages apparently he was troubled and i'm not searcher why buy the provisions of thirty four twenty six point three which say in a misappropriation case the damages are actual damages unjust enrichment to the extent that they don't duplicate actual damages and only in a default situation where there is no proof of either of the former only then is that is that a royalty what he did though was he wiped out what the jury was given under proper instruction which was unjust enrichment and awarded actual damage he acknowledged that the case of rogers for damages was largely on unjust enrichment i would point out not entirely the only evidence of actual damage was that given by dr buckley who testified to the value of the patent in one nine hundred ninety four which he calculated at eleven point six million i believe that was you know and with the interest at the time of trial would have been twenty one million dollars so i guess for sure an answer is you think it's a legal conclusion on her not her action it is a legal conclusion and he's very specific in his order that that's what he did he did not offer a new trial my colleague indicated that frond had no choice but to appeal neither did we there was no discussion up a new trial again to do that given the seventh amendment it's not for the judge to vacate legal determination as to want to use the appropriate damages for unjust enrichment for fraud or for anything else and if there's a proper  jury award the a city klute an element which is improper the judge cannot excise out what the jury picked as the appropriate damages either way the argument coast it seems to me that what he did was trying to cut the baby here and and issued what was we've all done many times  the damages which he felt were excessive for whatever reason i agree with the court but i don't think he can do what he did on the record in front of him various with no assignment of claim that any ronit requested jury instruction was not given there is no claim that any special interacted torrie to the jury requested by pran was denied the claim is more fundamental patent by way of certain specific dimensions that would be applied to the device that was described but he wouldn't tell apparently wouldn't tell the other side what those dimensions were and that i mentioned in this case and then i'm sorry why is that different from this case you had a very loose definition i know and if i may differ we had a very tight definition it was sixteen pages it was the face runs one report with drawings each of which was testified to be a unique drawing each of which was established to be a trade secret it was not known in the industry and it had economic value added method definition of thirty four twenty six has something which is unique it's not nominates it is and of the testimony from professor anson our expert testimony from mr sheehan their expert was that none of these diagrams were case law is in for currents the trade secret is in the combination of those building blocks just as the words of the work are all in the dictionary but the book isn't it's how they're put together and what is  it's difficult to say looking at the trial what the precise trade secret was think if you're trying to claim a trade secret protection of all the building blocks i think that goes far beyond what we've allowed her anybody's allowed as being protected let me be very clear we are not claiming three somebody great secret in the building blocks we did not claim it at trial we are claiming the concept drawings created by the vi are engineers someone came up with diagrams of three concept vehicles they all have tires wheels transmissions and so forth an attribute of those if that they presented it to g that's all that was ever done here was that the ats an actual beauty of these diagrams is that certain of the elements can be mixed and matched but we should also be very very clear that was never mentioned to the jury either in the jury instructions or in an argument of counsel nor was it in the jury verdict form the jury verdict form was very specific do you find trade in phase one well let me let me see if i can understand maybe i'm not understanding your answer understand your position you aren't claiming trade secrets and the building blocks themselves no we're not you're you're claiming a trade secret in the combination but you didn't argue what that combination was all right you know we did this what did you just say to mainland when the said we didn't argue have at any time what the combination was we argue of the combinations are type one that is a combination of tires wheels in france whatever that is a combination of and the experts testified to how many there were there may have been fifteen there may have been twenty separate building blocks but type one is a trade secret type two is a trade secret a separate distinct concept or i type three is a trade secret and the experts both of them were questioned at length as to the progression in this case from type one to the our offices broken the n answered and stole this report and took it back to their engineers and base their further development on the trade secrets contained in the diagrams in the concepts that were prepared through rogers by the i r we'd still have the same claim we have today what in fact they did was the they stole it in the different fashion and in addition they stole the consultants of rogers to bring it to fruition but we still go back to the trade secret the court instructed the jury  its verdict had to take into account the degree to which phase one in this case the type one but try contributed to the patent and the jury's verdict found that it was substantial the only inference that can be drawn from the sixteen sixteen million dollar war the court concurred but there's a very specific statement of what the trade here or point one six millimeters or whatever it might be they never said that well in this case whereas it's just what combination or reshuffling of the time it is the trade secret no combination there was no contradictory evidence it was not known in the prior art the building blocks are not this is not one of the building blocks this is composed of twenty building blocks put together in an unique fashion piston for example is one of the elements in any of these valves that is one of the building blocks and other devices had pistons other devices had walls other devices had springs other does that devices parts and openings those are the building blocks this is not a building block this is the trade secret and this is the trade secret that was presented to the jury you don't know what the trade secret being claimed is they began discovery without objection during discovery they never said neither we know they can proceed with this discovery to the court because they haven't met the gatekeeper role of establishing what the trade secret is they didn't do that they went for five years in this litigation without doing  that they went to today they say they don't know what the trade secret is but they had no problem none whatsoever doing discovery on phase one most of the discovery was directed at phase one which are much more show what part of the that was at the heart of our case quite sad in ruling on motions if it is true that i'm just enrichment as a matter of law is any profit made from the wrongful conduct then it seems to me the verdict on compensatory damages portion is supported by substantial evidence both if that which is really how to take the leaven really involves off the because what  were eleven or twelve million our evidence was that they were with the interest twenty three million yeah that's the basis for the sixteen million dollar award which is pretty and it and i don't like the heart of every other thing but it seems to me the the compensatory damages which the jury had awarded finding for whatever reason that it was that five million dollars was his estimate of actual damage ok but you claim you have a lot more than five million dollars of damage and there's a question certainly as to whether or not you had any any damage at all that that you were suffered anything actual damage by reason that for us we didn't have an ongoing production yet we couldn't this was a new product so did we lose sales that we otherwise can prove we would have had case or the question was detrimental alliance which is not enough to show you had the capability to show that you had actually was a market you would have actually succeeded so you have to put on that kind of evidence here looks to me is the only evidence of detrimental reliance is the fact that there was reliance you didn't show you were going to market or could market or there was a market that that evidence seems to be lacking there was significant the other case the evidence was pretty strong that there was in that particular case a a market that was strong evidence here that there was a market brian was willing to pay a one point six million on the one one for which was a totally five million dollars present value the number of valves that have been sold the gross revenues the growth of the net profit of brawn from precisely what was agreement and they were willing to pay that amount for it without even making an attempt to develop it and that for only a license that would be canceled the oval in one nine hundred ninety four when the reliance takes place because by that point in time rogers had the right to terminate the one one four but he was told the father was continuing to develop it is there there's no reason to believe that the value of that one one four had in any way diminish particularly since all brawn bought was a license for one point six riders have the right even to sell the one one for much less advice fraud you were prevented from realizing a profit on we did not have an expert address bath specific issue i like those i said if you must prove that you're going to recover  money for fraud count those damages can be determined by the jury based upon the value of the one one four and ron itself set the parameters of those values by what they were willing to pay in  damages correct it's got some damages prove here on this fraud count as far as the grieving is concerned that rogers did not attempt to market for their market the one one for because rogers was told when i was being developed by friday that this is what you get into their profit it's a different scenario but that's the problem with the american thank and other cases that a decision not to market isn't enough to sustain that i don't believe you have to show what the market is what it's worth but but we did i think there was substantial evidence from the brown personnel themselves as to what the market was and as to the value of this particular device in the market well if we're dealing with a related or we can't be talking about the merits of this case which you and your adversary have very ably dressed to us maybe i can use a different term that's why we think the order of the court and you don't save the parts you like but it was not but it was not a truer metric by his own words very specifically motion for new trial denied after saying practical it here there was no evidence on this point and i'm reducing the dirty think of this but your argument is different your argument is no he was just estimating the damage and putting substituting his own factual findings for the jury his knowledge for that of the jury what he said in two separate instances was if if a wrongdoer profits by who cannot profit by his wrong then sixteen million is supported by substantial evidence what he did say was essentially that he finds that rogers can recover unjust enrichment i will award him actual damage he said as a matter of law he can't recover for unjust enrichment now i don't know where that came from but that is what he said that is the error rogers can recover for un just enrichment there was no objection to the instructions they were properly given there is none here to day the jury properly performed its function there's no reason to believe otherwise what he can't do that's got to take it one step further if you were to not accept the five billion saying look i want the sixty million you could try the case again and if you get less than can deal with the with with this case where number one you have no damages for the actual loss which you sustain well and the judge appears to be to have said sixty million dollars for unjust enrichment is for whatever reason inappropriate i'm going to lower it to five million again i think it's important that i correct actual damage he didn't say that sixteen million is not a good number for unjust enrichment in fact he said the opposite he said there is substantial evidence for the figure of unjust enrichment and he said if the standard he is to follow for the wrong doer is that of wrong to or should not profit from his wrong then he had no complaint with the sixteen million dollars he just didn't buy that standard he threw out the un just enrichment and replaced it with hi rogers and razi the right to use it if they own it until two thousand and twelve we're already in two thousand and five they have waited ten years to try to get their rights confirmed in this stuff that the first legal effort made was made shortly after mr rogers found out about it in late ninety seven the complaint was filed february of ninety eight at that point we're under the control of the court and we know what the panel will decide this case but assume we decide that this is a minute or by any name assume that what is your position concerning your adversary's response to that assumption that that's fine for your case but as far as are concerned their case the patent reassignment and so forth that that's not until their dog is not in that fight i believe of the other findings made by the jury li the judge's second what we call the equitable proceeding because that's what he did in this case perhaps it should have been something else but it may make that move because it was predicated on on his i would think in the interests of judicial economy and in the interest of justice that the other findings that are appropriately made should stand in the remember chair should go only to the issue of the the courts charge both under the complaint and the cross complaint to determine who own the patent the cord made that determination who has all right title and interest in the past the  a does not have other remedies or other causes of action not based on this appropriation it does not supplant common law remedies and the cases are multiple not only sections twenty two twenty three and twenty two twenty four i think that you need assuming that there is a remedy of reassignment assume for the purpose of our death yes you put fifteen thousand dollars into this  r as their representative so why isn't a damage remedy adequate those rogers owns the patent owns the intellectual property the lead to the patent rogers it was rogers consultants and that's the word now the agent that he uses in this finding from under the contract was not allowed to take back to its own use and they did everything that vi are developed rightly belong to rogers according to the findings of fact made by the court below so they only the pat doesn't belong to him by theft by misappropriation or by fraud that's fundamental in the law whether it be a house a car or in this case intellectual property we can't condone the acts of that wrong who are in fact that would make a bronze plan as you put forth in one nine hundred ninety five when they had their meeting and decided to do all this that would justify what they did why not why offer to rogers all he'll get is a royalty anyway well that's that's not the law and hopefully never will be there the thief takes title to the stolen property if he's successful enough at it you never takes time and the court is not powerless to turn it back there's an issue of on our cross appeal we haven't touched on if i may have just two minutes perhaps the court doesn't care to curate the license agreement was pulled from nowhere it was never pled it was never even request i'm very grateful i'll speak a little bit more slowly but i'll try not to burden the court we've got the courts excerpts of record page eight fifty two where the judge specifically found this goes to the damages issue  based on profits improperly sought to punish our brothers on the other side chose not to even address this point in their reply appropriate a pro choice by the judiciary on review is to examine what the court below actually did and as we said before and i don't think that i have heard a response to this particular point that the judge judge brewster actually engaged in a way but my brother refers to as to the sixteen million dollars is justified is a much earlier reflection on the record it is not to my brother keys that the judge quote calculated what he believed was correct i quote mr keyes very able lawyers said to this court the judge brewster calculated what he believed to be the correct that's classic for a miniature language point to much has been said about this document phase one specifically and expressly invoking the principle which is the key but the principle embodied in imax their theory a trial was mix and match and there's a very good reason that they needed to mix and match he held figure one figure one a drawing one is not the four fifty one pattern there are elements in any valve if you bring a valve in the medical device it will have elements what is undisputed is that every one of these elements or building blocks was in the public domain and judge callan's point about this process and we are in the process but it was a very limited process of fifteen thousand dollars and then the language of about thievery i beg to differ disagree in light of the fact that it's under spirited that with mr rogers this knowledge he was quite content to see the relationship with vi are moved to braun in terms of he was delighted for braun the pick up the tab that's the point and in this industry this industry if a consultant not age if a consultant over the judge bought into an agency theory which is a jury issue a seventh amendment issue but if the consultant is working for braun and pran is paying the tab that explains why the assignment of the patent rights by the four engineers in santa barbara not in san diego not mr rogers but the four engineers in santa barbara working for vi r and then claude vidaza himself said on contradicted testimony my client became braun what is your response to th trade secret is that they claim we this appropriate your honor it was so clear i'm referred earlier to our motion in limine number seven and liberty ok so that's before trial and that's when we saw this well and that was that i it was denied we said i am x they are involving the theory they are moving to mix and match mix and match cannot be done under the law your honor and the judge denied our motion no that was pretrial but what had happened th learned brother on the other side said i do not have to stand on phase one i do not have to stand on drawings one and three i get to mix and match he needed as he so i think to mix and match to get to the four fifty one which had elements that vi are developed in phase two that grant paid for our point is that's a jury issue i don't want to convince you here but i would love to to convince you here today that the real interrelationship and i have one final point is something that you can decide is a matter of law our submission is it was a jury issue and when my brother speaks of the judge found this and the judge found that we invite the court to its findings forty seven through fifty two which was the judge findings with no citation to the record and there's a reason for that we try to be respectful in our brief that we've been firm zero support for the idea that during phase two of the critical phase that we were paying for that there was in fact a relationship with r and r now if they thought that there was or that we had somehow violated the contract why did they not bring an action contract they instead brought an action on misappropriation ignores exactly what two phases that ignores what phase one is phase one and he is now charting face one is a sketch done in four weeks three weeks that combines drawing itself one drawing a distinction between the elements and the combination your honor if he had stuck with drawing number one in face one is our trade secret i don't think we've had an imax it would be a very different i don't know definitively are you because he didn't he chose a next and max kind of theory so he has a definitional problem for starters it still brings us back to what is phase one and then what is phase two and the fact that phase two is where the intellectual work was done that generated in the four fifty one and then we paid for it and he's speaking about theft is very very odd when that cost two hundred sixty six thousand dollars and then well over and all this is under skewed it so we think with all due respect that phase one that the trial that the judge the court i will conclude conclude with a subject to the court's questions conclude as a matter of law that they lose as a matter of law because they fail to identify the trade secret with sufficient particularity imax controls and imax is grounded in the structure of the statute it could also conclude as a matter of law that the assignment is utterly imprimis civil and i heard my brother's answer i did not hear him citing two principles of california law certainly not the uniform trade secrets he chose to bring a trade secrets case and not an assignment case in the contract case had he brought that perhaps assignment depending on the evidence would be a permissible remedy but he did not he chose to bring a trade secrets case our final point is so many of these issues should have gone to the jury and the seventh amendment jury trial is foundational tarsa mission here today i think the court for its attention