NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

MASIMO CORPORATION, CERCACOR 

LABORATORIES, INC.,

Plaintiffs-Appellees

v.

TRUE WEARABLES, INC., MARCELO LAMEGO,

Defendants-Appellants

______________________ 

2021-2146

______________________ 

Appeal from the United States District Court for the 

Central District of California in No. 8:18-cv-02001-JVSJDE, Judge James V. Selna.

______________________ 

Decided: January 24, 2022

______________________ 

JOSEPH R. RE, Knobbe, Martens, Olson & Bear, LLP, 

Irvine, CA, argued for plaintiffs-appellees. Also represented by BRIAN CHRISTOPHER CLAASSEN, STEPHEN C.

JENSEN, IRFAN A. LATEEF, PERRY D. OLDHAM; MARK D.

KACHNER, Los Angeles, CA; WILLIAM R. ZIMMERMAN, 

Washington, DC. 

 RACHEL ZIMMERMAN SCOBIE, Merchant & Gould P.C., 

Minneapolis, MN, argued for defendants-appellants. Also 

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2 MASIMO CORPORATION v. TRUE WEARABLES, INC. 

represented by MICHAEL A. ERBELE, PAIGE STRADLEY; RYAN 

JAMES FLETCHER, Denver, CO; PETER GERGELY, New York, 

NY. 

 ______________________ 

Before MOORE, Chief Judge, BRYSON and DYK, Circuit 

Judges.

BRYSON, Circuit Judge. 

Appellees Masimo Corporation and Cercacor Laboratories, Inc. (collectively, “Masimo”) filed suit against appellants True Wearables, Inc., (“TW”) and Dr. Marcelo 

Lamego alleging breach of contract, misappropriation of 

trade secrets under California and federal law, breach of 

fiduciary duty, and patent infringement. Masimo filed a 

motion for a preliminary injunction on its trade secret 

claims, and the district court granted the motion. We affirm.

I 

The alleged trade secret in this case, known as the 

“TSS,” relates to an algorithm used to solve optimization 

problems. Masimo uses this algorithm in devices that 

make determinations of various physiological values, including the concentration of total hemoglobin, a measurement known as “SpHb.” J.A. 110–111. To estimate a 

patient’s SpHb level, a device emits different wavelengths 

of light from LEDs into the patient’s fingertip and then 

measures how much light has been absorbed when the 

light emerges from the other side of the fingertip. J.A. 404. 

The measurements are then inserted into an equation having the form of “SpHb = Ax + By + Cz . . .,” where x, y, and 

z are absorption measurements and A, B, and C are coefficients. Appellant’s Br. 9. The coefficients are determined 

by optimizing the SpHb equation to fit the results of blood 

tests conducted during a clinical trial. Id. Because the 

SpHb equation may include up to 257 coefficients, the optimization cannot reasonably be done by hand, and thus a 

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MASIMO CORPORATION v. TRUE WEARABLES, INC. 3

computer algorithm is needed to determine the appropriate 

coefficients. J.A. 408–410. The TSS is Masimo’s implementation of such an algorithm.

Dr. Lamego is a former Cercacor employee who developed the TSS while working at Cercacor. As part of his 

work, Dr. Lamego developed an internal presentation that

disclosed two different variations of the TSS. J.A. 413–425; 

Appellant’s Br. 11. After leaving Cercacor, Dr. Lamego 

worked briefly for another employer before founding TW. 

J.A. 122. At TW, he developed the “Oxxiom device,” a pulse 

oximeter. J.A. 1378. TW attempted to protect some aspects of that device by filing patent applications.

On January 11, 2021, the U.S. Patent and Trademark 

Office (“PTO”) issued a Notice of Allowance for one of TW’s

patent applications, U.S. Patent Application No. 

16/198,335 (“the ’335 Application”). J.A. 1063. The ’335 

Application claimed priority to an earlier provisional application, U.S. Provisional Patent Application No. 62/591,158 

(“the ’158 Application”). J.A. 1018. According to Masimo, 

the ’158 Application contains one of the variations of the 

TSS that Dr. Lamego developed while at Cercacor. Upon 

learning that the PTO had issued a Notice of Allowance for 

the ’335 Application, Masimo moved for a preliminary injunction on its trade secret claims to prevent the ’158 Application from becoming public, which would occur if the 

’335 Application were allowed to issue as a patent.

The district court evaluated Masimo’s motion using the 

so-called Winter factors for determining whether to issue a 

preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under the Winter factors, a 

plaintiff must show that (1) it is likely to succeed on the 

merits, (2) it is likely to suffer irreparable harm, (3) the 

balance of equities favors the plaintiff, and (4) the injunction is in the public interest. Id. In the Ninth Circuit, a 

court may enter a preliminary injunction “if the moving 

party demonstrates either a combination of probable 

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4 MASIMO CORPORATION v. TRUE WEARABLES, INC. 

success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of 

hardships tips sharply in his favor.” Johnson v. California 

State Bd. of Acct., 72 F.3d 1427, 1430 (9th Cir. 1995) (internal quotations, citation, and emphasis omitted). 

Regarding the Winter factors, the district court first

found that Masimo was likely to succeed on the merits of 

its trade secret claim because the TSS was not generally 

known and Masimo was likely to show that Dr. Lamego

misappropriated the TSS. J.A. 10–16. The court next 

found that the risk of irreparable harm and the balance of 

the equities weighed in favor of a preliminary injunction. 

J.A. 16–17. Finally, the court found that issuance of a preliminary injunction was in the public interest. J.A. 18. After finding that each of the Winter factors favored a 

preliminary injunction, the district court granted Masimo’s 

motion. TW then filed a motion for reconsideration, which 

the district court denied. This appeal followed.

II

On appeal, TW raises three principal arguments. 

First, it argues that the district court erred in determining 

that Masimo was likely to establish that the TSS was a 

trade secret. More specifically, TW argues that the district 

court erred in finding that Masimo was likely to show that 

the TSS derives economic value from not being publicly 

known, and in denying TW’s motion for reconsideration, 

which was addressed to that issue. Second, TW argues 

that the district court erred in determining that Masimo 

was likely to establish that Dr. Lamego misappropriated 

Masimo’s trade secret. Third, TW argues that the district 

court erred in its balancing of the equities.

A 

In contending that Masimo is unlikely to succeed in establishing that the TSS is a trade secret, TW argues that it 

presented evidence that the TSS was generally known, and 

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that the district court failed to properly consider that evidence. The existence of a trade secret, including whether 

the information at issue is generally known, is a question 

of fact that we review for clear error. Olaplex, Inc. v. 

L’Oréal USA, Inc., 855 F. App’x. 701, 706 (Fed. Cir. 2021); 

Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir. 

1999). 

The district court’s analysis focused primarily on the 

definition of a trade secret under the California Uniform 

Trade Secrets Act (“CUTSA”). See J.A. 12–14. Under the

CUTSA, information is eligible for trade secret protection 

if it (1) “[d]erives independent economic value, actual or potential, from not being generally known to the public or to 

other persons who can obtain economic value from its disclosure or use,” and (2) “[i]s the subject of efforts that are 

reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code § 3426.1(d).

 TW argues that Masimo did not meet its burden to establish that the TSS is not “generally known” to “persons 

who can obtain economic value from its disclosure or use.” 

See id. In TW’s view, the only evidence Masimo presented 

that the TSS is not generally known is the testimony of a 

single Masimo employee, Jesse Chen, who stated that he 

was “not aware of any publications that include the derivations found in the [TSS] or describe an implementation of 

the [TSS].” J.A. 411; Appellant’s Br. 41. That characterization ignores several pieces of evidence presented by 

Masimo that are relevant to whether the TSS is generally 

known.

First, Masimo pointed to evidence that Dr. Lamego protected the TSS as a trade secret while working at Cercacor. 

J.A. 807–820, including an email from Dr. Lamego to another employee describing TSS as “not known in the literature and . . . a trade secret,” J.A. 809. Additionally, after 

founding TW, Dr. Lamego labeled a notebook including 

TSS and related material as containing trade secrets. J.A. 

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6 MASIMO CORPORATION v. TRUE WEARABLES, INC. 

823–828. Moreover, and of particular note, Dr. Lamego argued to the PTO that the TSS was not “common 

knowledge.” J.A. 1095–1096. Under the CUTSA, evidence 

of how the owner of an alleged trade secret and the alleged 

misappropriator treat that information is relevant to 

whether the information is generally known. See Altavion, 

Inc. v. Konica Minolta Sys. Lab’y, Inc., 226 Cal. App. 4th 

26, 63 (Ct. App. 2014) (considering evidence such as plaintiff’s “documents extolling the novelty” of the information 

along with defendant’s attempts to patent the information).

Despite Masimo’s showing, TW argues that its evidence compels a finding that the TSS was generally known 

to those who can obtain economic value from its disclosure. 

Specifically, TW points to an IEEE conference paper that

disclosed an algorithm equivalent to the TSS and that has 

been cited over 1,200 times. J.A. 3118. In addition to its 

arguments based on the IEEE conference paper, TW points 

to testimony from its expert, Thomas Goldstein, stating 

that variants of the TSS have appeared in statistics textbooks since the early 1960s. J.A. 3107–3108. In his declaration, Dr. Goldstein noted that an algorithm equivalent to 

the TSS was “widely known and widely used by the statistics community prior to [the TSS’s] alleged appearance in 

the ’158 Application.” J.A. 3103. 

The district court was not persuaded by the evidence 

relating to the IEEE publication. The court noted that 

while the publication in question was “not obscure,” the existence of the publication did “not mean that the particular 

techniques described in them were ‘generally known’ to 

people who could obtain economic value from developing 

noninvasive blood content detectors.” J.A. 12. “At best,” 

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the court added, “the articles could be a basis for determining that the TSS was ‘readily ascertainable.’”1 Id.

 TW argues that the district court’s statement “improperly deemed evidence of publication of the alleged trade secret irrelevant as a matter of law to whether it is ‘generally 

known’ under the CUTSA.” Appellant’s Br. 36. In our 

view, that mischaracterizes the district court’s opinion. 

The district court simply found that the evidence regarding 

the IEEE publication did not conclusively show that the 

TSS was generally known among those who could obtain 

economic value from its disclosure. The court acknowledged that the evidence regarding the publication could be 

relevant to whether the TSS was readily ascertainable. 

The court then explained that TW could not avail itself of 

a defense based on ready ascertainability because it failed 

to show that Dr. Lamego obtained his knowledge of the TSS 

based on the IEEE publication and independently of his 

prior knowledge of Masimo’s trade secret. We see no legal 

error in that aspect of the district court’s analysis.

Citing several cases, TW argues that “display in a single publication of an alleged trade secret in its entirety is 

1 Under the CUTSA, the Ninth Circuit has explained, ready ascertainability is a defense to a claim of 

misappropriation of trade secrets, but the defense is available only if the defendant can establish that the alleged 

trade secret was obtained from sources that made the information ascertainable. Imax Corp. v. Cinema Techs., 

Inc., 152 F.3d 1161, 1168 n.10 (9th Cir. 1998). Based on a 

California pattern jury instruction, TW argues that the 

Ninth Circuit has misstated the rule in California. See Judicial Council of Cal. Civ. Jury Instructions No. 4420 

(2021). In the absence of a controlling California court decision to the contrary, it was appropriate for the district 

court to follow the Ninth Circuit’s interpretation of the California statute.

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8 MASIMO CORPORATION v. TRUE WEARABLES, INC. 

conclusive evidence that it is generally known.” Appellant’s Br. 38. We disagree with that proposition, and we 

find that TW’s cases are distinguishable. In Ultimax Cement Manufacturing Corp. v. CTS Cement Manufacturing 

Corp., we held that information “disclosed in a patent” is 

“generally known to the public” for purposes of the CUTSA. 

587 F.3d 1339, 1355–56 (Fed. Cir. 2009). We emphasized 

that the “relevant public in the cement industry” would be 

likely to know that the alleged trade secret, the use of certain compounds in cement, was disclosed in a Japanese patent. Id. 

Similarly, in Convolve, Inc. v. Compaq Computer Corp., 

the court held that information disclosed in two academic 

theses was generally known and therefore not a trade secret under the CUTSA. No. 00 CIV. 5141, 2011 WL 

7144803, at *10–11 (S.D.N.Y. Oct. 6, 2011), aff’d in relevant 

part, 527 F. App’x 910, 922 (Fed. Cir. 2013). In that case, 

the plaintiff developed technology for use in computer disk 

drives, and the theses disclosing the alleged trade secret 

were directed specifically to disk drive technology. See id.

at *1, *10. In both Ultimax and Convolve, there was a 

showing that the alleged secret was disclosed to others in 

the plaintiff’s field. Here, the evidence shows that TSS was 

known in the field of statistics, without evidence that the 

statistical principle had particular application to the plaintiff’s field or a related field. 

In Attia v. Google LLC, another case cited by TW, the 

owner of the alleged trade secret authorized another party 

to publish information disclosing the trade secret in a patent application. 983 F.3d 420, 425 (9th Cir. 2020). In fact, 

the owner of the alleged trade secret admitted that publication of the patent application “extinguished” its trade secret rights. Id. at 426. In this case, neither the IEEE 

publication nor any other article potentially disclosing the 

TSS was published under authorization from Cercacor or 

Masimo, which continue to assert their trade secret rights.

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TW’s other cases also do not aid its cause, because the 

plaintiff in both cases placed the alleged trade secret into 

the public domain. See, e.g., In re Sotera Wireless, Inc., 794 

F. App’x 625, 627 (9th Cir. 2020) (unpublished) (the plaintiff published the alleged trade secret in a white paper on 

its own website); Forcier v. Microsoft Corp., 123 F. Supp. 

2d 520, 528 (N.D. Cal. 2000) (alleged trade secret was published in a patent application filed by the plaintiff). Here, 

no one alleges that Masimo placed the TSS into the public 

domain.

In addition to its arguments based on the IEEE conference paper, TW points to a declaration from its expert, 

Thomas Goldstein. Dr. Goldstein, a computer science professor, claimed to be the kind of person who could “obtain 

economic value from” the disclosure of the TSS. J.A. 3101. 

TW argues that Dr. Goldstein was such a person because 

his curriculum vitae lists work for an alleged competitor of 

Masimo’s on “algorithms for medical image reconstruction,” and that “attendees of an IEEE signal processing 

conference” are also such persons. Appellant’s Br. 17. 

The district court noted that the TSS’s economic value 

derives from how it makes development of SpHb-measuring devices practical. J.A. 14. The district court was not 

required to credit Dr. Goldstein’s declaration as establishing that the TSS would be well known to persons involved 

in the relevant field of art, because Dr. Goldstein’s declaration did not tie the particular statistical information to the 

field of medical devices for measuring blood characteristics, 

or even any related field. The court’s conclusion in that 

regard was supported by the evidence that Dr. Lamego had 

described the TSS as a trade secret “not known in the literature,” and had labeled a notebook including the TSS and 

related material as a trade secret. J.A. 809, 823–28. 

Under some circumstances, the publication of an alleged trade secret will clearly be sufficient to indicate that 

the information is generally known. However, the fact that 

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the trade secret has been revealed in some publication

somewhere does not necessarily compel a finding that the 

information cannot maintain its status as a trade secret for 

a party in an entirely different field from the one to which 

the publication was addressed.

We need not decide the precise boundaries of the class 

of persons who could obtain economic value from the disclosure of the TSS. In analogous cases, such persons have 

been described as those falling within the class of “business 

competitors or others to whom the information would have 

some economic value.” Syngenta Crop Prot., Inc. v. Helliker, 138 Cal. App. 4th 1135, 1172 (Ct. App. 2006); see also 

DVD Copy Control Assn., Inc. v. Bunner, 116 Cal. App. 4th 

241, 251 (Ct. App. 2004) (the “relevant people” are “potential competitors or other persons to whom the information 

would have some economic value”); Restatement (Third) 

Unfair Competition § 39 cmt. f (suggesting consideration of 

whether a disclosure was “reasonably accessible to competitors”); All Am. Semiconductor, LLC v. APX Tech. Corp., 

No. G046605, 2013 WL 4434345 (Cal. Ct. App. Aug. 14, 

2013), as modified on denial of reh’g (Sept. 10, 2013) (“Information that is generally known to the public or to persons in the relevant industry is not a trade secret.”); 

Kittrich Corp. v. Chilewich Sultan, LLC, No. CV1210079, 

2013 WL 12131376, at *4 (C.D. Cal. Feb. 20, 2013) (considering whether the information was “widely publicized in 

the industry” along with “industry custom”).

Ultimately, the class of persons who could obtain economic value from the disclosure of the TSS may well be 

broader than just those entities who develop noninvasive 

blood content detectors. For example, disclosure of the TSS 

in a publication directed to persons working in related 

fields, such as the healthcare field in general, might be sufficient to render the TSS generally known to persons who 

could obtain economic value from it based on its utility in 

signal processing in medical instruments generally. There 

may be other fields in which the use of TSS could result in 

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MASIMO CORPORATION v. TRUE WEARABLES, INC. 11

economic value. However, based on the limited record developed in this preliminary injunction proceeding, the district court was not required to conclude that the fact that 

the TSS was known to at least some persons within the statistics community meant that it was generally known to 

persons who could obtain economic value from it. The district court therefore did not err in finding that Masimo is 

likely to succeed in showing the TSS to be a trade secret. 

At minimum, Masimo has raised a serious question as 

to the validity of its trade secret, i.e., it has demonstrated 

a “fair chance of success on the merits or questions serious 

enough to require litigation.” Pimentel v. Dreyfus, 670 F.3d 

1096, 1105–06 (9th Cir. 2012) (citation omitted). That is 

sufficient to justify entry of a preliminary injunction in this 

case, given that the consequence of denying preliminary relief would be to allow disclosure of the trade secret before 

Masimo’s right to prevent disclosure is decided in the trial 

on the merits.2

B 

 TW next argues that the district court erred in denying 

its motion for reconsideration of the decision to enter the 

preliminary injunction. We review the district court’s denial of a motion for reconsideration for abuse of discretion. 

Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 

F.3d 1255, 1263 (9th Cir. 1993). A motion for reconsideration “is appropriate if the district court (1) is presented 

2 As the Supreme Court explained in University of 

Texas v. Camenisch, 451 U.S. 390, 395 (1981), “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less 

complete than in a trial on the merits,” and as a consequence, “the findings of fact and conclusions of law made 

by a court granting a preliminary injunction are not binding at trial on the merits.” 

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with newly discovered evidence, (2) committed clear error 

or the initial decision was manifestly unjust, or (3) if there 

is an intervening change in controlling law.” Id.

After the preliminary injunction was entered, TW obtained deposition testimony from three current or former 

Masimo employees, “all of whom are or were engineers in 

the noninvasive monitoring industry.” Appellant’s Br. 51. 

Those witnesses testified that electrical engineers working 

in the industry often review IEEE publications, and that 

those engineers “actively referred to IEEE publications 

while developing algorithms for Cercacor.” Id. TW argued 

that the testimony was new evidence that the IEEE publication disclosing the TSS was generally known to those 

who could obtain economic value from the TSS’s disclosure.

The district court noted that it was “already familiar 

with how well known the articles at issue were,” and that 

the motion “therefore [did] not raise any new material facts 

that justify reconsideration.” J.A. 43. In particular, the 

district court highlighted that a “showing that IEEE publications are generally known to electrical engineers . . . is 

insufficient to show that information found in particular 

articles is generally known.” J.A. 42. That was especially 

true given that IEEE publishes approximately “two hundred different transactions, journals, and magazines,” and 

adds about 200,000 papers annually to its digital library. 

Id.

Rather than challenging those observations by the district court, TW continues to focus on the district court’s alleged refusal to consider the IEEE publication as evidence 

that the TSS was generally known. See Appellant’s Br. 52. 

That is the same argument that TW made in response to 

the district court’s findings as to the merits of Masimo’s 

trade secret claim, which we hold were not legally erroneous. In light of the district court’s findings that the deposition testimony did not raise “any new material facts that 

justify reconsideration,” see Sch. Dist. No. 1J, 5 F.3d at 

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1263, we are not persuaded that the district court abused 

its discretion in denying True Wearables’ motion for reconsideration.

C 

 TW argues that Masimo is not likely to establish that 

Dr. Lamego misappropriated the TSS. We need not reach 

that argument because it was not raised to the district 

court.3 Villanueva v. California, 986 F.3d 1158, 1164 n.4

(9th Cir. 2021) (“We have a general rule against entertaining arguments on appeal that were not presented or developed before the district court.”) (internal quotation marks 

and citation omitted). 

Likewise, TW argues that the district court erred in 

balancing the equities among the parties. TW’s principal 

argument on this point is that the district court failed to 

consider the loss of patent term that TW would effectively 

incur as a result of the preliminary injunction. That 

3 In the “Statement of Facts” section of its brief before the district court, TW noted that Dr. Lamego independently created the Oxxiom device. J.A. 3077–79. That 

assertion falls short of constituting a developed argument 

that Dr. Lamego did not misappropriate the TSS in particular. See Valentine v. Wolf, 793 F. App’x 547, 548 (9th Cir. 

2020) (argument is forfeited if the district court is not “on 

notice” of it). A single reference to a point in the statement 

of facts or background section of a brief typically does not 

preserve that argument for appeal. See In re Baxter Int’l, 

Inc., 678 F.3d 1357, 1362 (Fed. Cir. 2012); Ledford v. 

Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011); Wasco Prods. 

Inc. v. Southwall Tech., Inc., 166 F. App’x 910, 911 (9th Cir. 

2006). That is all TW’s brief before the district court had 

to say on the issue of misappropriation.

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14 MASIMO CORPORATION v. TRUE WEARABLES, INC. 

argument was not raised before the district court and is 

therefore forfeited.4

In addressing the balancing of the equities, TW argues 

that Masimo would not be harmed by publication of the 

’158 Application. That argument, however, assumes that 

TW will prevail in showing that Masimo does not have a

valid trade secret. If the TSS is a trade secret, then the 

publication of the ’158 Application would destroy that trade 

secret by making it public. See Ultimax, 587 F.3d at 1355 

(“Once the information is in the public domain and the element of secrecy is gone, the trade secret is extinguished . . . .”) (citation omitted). That potential harm to 

Masimo is significant, and the district court did not err in 

considering it.

III

In summary, the district court did not err in finding 

that Masimo was likely to succeed in showing the TSS to 

be a trade secret. TW’s remaining arguments are either 

forfeited or unpersuasive. For those reasons, we affirm the 

decision of the district court.

AFFIRMED

4 TW argued before the district court that the potential harm to it, if the preliminary injunction were entered, 

was a delay in the ability to enforce its patent rights. J.A. 

3097–98. A delay in enforcing patent rights is a temporary 

harm, whereas a loss of patent term is permanent. Because TW did not raise the effect that the loss of patent 

term could have on the balancing of the equities, we do not 

address that argument here.

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