NAI-1503303499v1 

No. 03-17-00035-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

DR. RUTHIE HARPER AND PLLG, LLC, 

Appellants,

v.

WELLBEING GENOMICS PTY LTD.,

Appellee.

On Appeal from the 98th Judicial District Court

Travis County, Texas, Cause No. D-1-GN-14-002452

SUPPLEMENTAL BRIEF OF APPELLEE WELLBEING GENOMICS PTY LTD. 

FILED IN RESPONSE TO THE COURT’S REQUEST AT ORAL ARGUMENT

Robert W. Kantner

State Bar No. 11093900

JONES DAY

2727 North Harwood Street

Dallas, Texas 75201-1515

Telephone: (214) 969-3737

Facsimile: (214) 969-5100

rwkantner@jonesday.com

ATTORNEY FOR APPELLEE

ACCEPTED

03-17-00035-CV

21631643

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/5/2018 11:20 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/5/2018 11:20:33 AM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

PAGE

NAI-1503303499v1 -iRecord References ...................................................................................................iv

Introduction...............................................................................................................1

Factual Background ..................................................................................................1

A. Defendants’ Access to Trade Secret No. 1...........................................1

B. Defendants’ Misappropriation of Trade Secret No. 1 and 

PLLG’s Breach of Confidentiality Agreement ....................................4

Argument...................................................................................................................6

A. Proof of Access to Trade Secret No. 1 by Harper and PLLG..............6

1. Standard of Proof of Access to Trade Secrets...........................6

2. Wellbeing’s Evidence of Access to Trade Secret No. 1 by 

Harper and PLLG.....................................................................13

B. Proof of Use or Disclosure of Trade Secret No. 1 by Harper and 

by PLLG.............................................................................................16

1. Standard of Proof of Use or Disclosure of a Trade Secret ......16

2. Wellbeing’s Evidence of Use of Trade Secret No. 1 by 

Harper and PLLG.....................................................................22

C. This Court Should Not Reverse the Judgment Based on Either 

Harper’s or PLLG’s Allegation of No Evidence or Insufficient 

Evidence of their Access to and Use/Disclosure of Trade Secret 

No. 1 ...................................................................................................25

Conclusion and Prayer............................................................................................26

Certificate of Service ..............................................................................................28
NAI-1503303499v1 -iiTABLE OF AUTHORITIES

Page

CASES

Bishop v. Miller,

412 S.W.3d 758 (Tex. App. – Houston [14th Dist.] 2013, no pet.) .......19, 20, 21

Cain v. Bain,

709 S.W.2d 175 (Tex. 1986) ..............................................................................25

Electro-Miniatures Corp. v. Wendon Co., Inc.,

771 F.2d 23 (2nd Cir. 1985) .........................................................................11, 12

GlobeRanger Corp. v. Software AG United States of America, Inc.,

836 F.3d 477 (5th Cir. 2016) ........................................................................17, 21

Leggett & Platt, Incorporated v. Hickory Springs Manufacturing 

Company,

285 F.3d 1353 (Fed. Cir. 2002) ....................................................................10, 12

Pioneer Hi-Bred Inc. v. Holden Foundation Seeds,

35 F.3d 1226 (8th Cir. 1994) ........................................................................11, 12

Sokol Crystal Products v. DSC Communications Corp.,

15 F.3d 1427 (7th Cir. 1994) ........................................................................11, 12

Spear Marketing, Inc. v. Bancorpsouth Bank,

2014 WL 2608485 (N.D. Tex. June 11, 2014), aff’d. 791 F.3d 586 

(5th Cir. 2015).................................................................................................8, 10

Stratienko v. Cordis Corp.,

429 F.2d 592 (6th Cir. 2005) ..............................................................................10

SW Energy Production Co. v. Berry-Helfand,

491 S.W.3d 699 (Tex. 2016) ..............................................................................16
TABLE OF AUTHORITIES

(continued)

PAGE

NAI-1503303499v1 -iiiTransp. Ins. Co. v. Moriel,

879 S.W.2d 10 (Tex. 1994).................................................................................25

Wellogix, Inc. v. Accenture, L.L.P.,

716 F.3d 867 (5th Cir. 2013) ............................................... 6, 7, 8, 10, 12, 18, 21
NAI-1503303499v1 -ivRECORD REFERENCES

Appellee will use the same record reference designations as it did in its Brief 

of Appellee.
NAI-1503303499v1 -1-

INTRODUCTION

At the conclusion of the two week trial of this case, the jury found that 

Wellbeing Genomics Pty Ltd. (“Wellbeing”) had proven that it had a trade secret 

in a grouping of DNA sequence variants (also called “SNPs”) into one or more 

skin-related categories (“Trade Secret No. 1”). The jury also found that Dr. Ruthie

Harper and PLLG, LLC (“PLLG”) had misappropriated Trade Secret No. 1 and 

that PLLG had breached the confidentiality provision of its Exclusive Distributor 

Agreement with Wellbeing (PX019-0003-4) by misusing the information in Trade 

Secret No. 1. 1CR2975, 2978-9 and 2980. Wellbeing elected to recover against 

PLLG based on the contract claim. 1CR3267-8

This Supplemental Brief is provided – at the Court’s invitation – to address 

questions posed by the Court during oral argument, namely what standard the 

Court should use to evaluate whether there is any evidence or sufficient evidence 

to support the jury’s conclusion that Harper and PLLG had access to Trade Secret 

No. 1 and used or disclosed Trade Secret No. 1 without Wellbeing’s permission.

FACTUAL BACKGROUND

A. Defendants’ Access to Trade Secret No. 1

On appeal, Harper and PLLG assert that there is no evidence or insufficient 

evidence they ever received or had access to Trade Secret No. 1. For example, in 

their opening brief, Harper and PLLG asserted: “The record is crystal clear that 

Dr. Harper had never been provided anything like Slide 17 until trial.” App. 
NAI-1503303499v1 -2-

Br. 31. The slide 17 to which Harper and PLLG refer was one of the 

demonstrative slides that Wellbeing’s technical expert, Dr. Michael Metzker, 

presented to the jury to illustrate Trade Secret No. 1:

STIP00073 (Metzger Slide No. 17) (App. 2). 

What is an rs number? The National Center for Biotechnology Information 

(“NCBI”) assigns to each SNP that is identified a unique identifier called an rs 

number. Rs stands for “reference SNP.” Basically, the rs number provides the 

address of a particular SNP in the human genome. 4RR 111; 7RR 31. Therefore 

the rs numbers in Metzker Slide No. 17 disclose the SNPs Wellbeing used in its 

test. At a time when PLLG was selling Wellbeing’s DNA test under the tradename 
NAI-1503303499v1 -3-

SKINSHIFT (6RR11), David Urman – who worked for Harper and PLLG – wrote 

to a potential new distributor as follows:

SKINSHIFT is the first company to identify 16 SNPs that are 

relevant to skin health categories. Additional SNPs are being 

discovered as we speak. The location of all of these SNPs will 

not be disclosed and will be treated as a trade secret.

PX 46 (Emphasis added). 

In response to Harper’s and PLLG’s contention that there is no evidence that

they had access to Trade Secret No. 1, Wellbeing has cited the factual testimony of 

Stefan Mazy, the founder of Wellbeing and developer of Trade Secret No. 1, and 

the expert testimony of Dr. Metzker. Both Mazy and Metzker testified that the 

data cards Wellbeing provided to Harper and PLLG confidentially for each of the 

genes in Trade Secret No. 1 cited a small number of scientific articles (or 

references) that provided the rs numbers in Trade Secret No. 1. See, e.g., citations 

to articles on the data cards at PX21-006, 9, 12 and 25, articles at PX2-448 and 

525-7, Mazy’s testimony at 5RR7-11 and Metzker’s testimony at 7RR21 and 42-

45. 

The number of DNA variants in Wellbeing’s Trade Secret No. 1 (fifteen) 

(one is used twice) is a very small percentage of the DNA variants found in 

humans on average (3.5 million). 7RR32. The average number of SNPs – DNA 

variants that appear in 1% or more of the population (7RR23-24) – is smaller than 

3.5 million; but it is far larger than the number of SNPs in Trade Secret No. 1. 
NAI-1503303499v1 -4-

After all, Mazy testified that he considered 6,000 genes, each of which contain 

500-1,000 SNPs, and closely evaluated 200 of them before selecting twelve for 

Trade Secret No. 1. As a result, Mazy analyzed thousands of SNPs before 

selecting fifteen (one to be used twice) for Trade Secret No. 1. PX26; 4RR83-86. 

Moreover, Mazy showed the jury a huge stack of the articles he read and still had 

at trial (20% of the total) that he relied upon to evaluate whether particular SNPs 

were associated with the skin health categories he had chosen. PX2; 4RR117-119. 

The number of articles cited on the data cards Wellbeing provided to Harper and 

PLLG is a very small fraction of the articles Mazy read. PX2.

Harper and PLLG had a test panel of SNPs by April 22, 2014 (PX 112) –

about three months after Dr. Linda DiBella started work on the panel for them. 

(9RR 70-71). In contrast, looking for SNPs for a panel from scratch is like looking 

for proverbial needles in a haystack. That is why it took Mazy three years to

develop Trade Secret No. 1. 4RR77. 

B. Defendants’ Misappropriation of Trade Secret No. 1 and PLLG’s 

Breach of Confidentiality Agreement.

On appeal, Harper and PLLG also argue that there is no evidence or 

insufficient evidence that either of them used or disclosed Wellbeing’s Trade 

Secret No. 1. Harper argues that she did not use Trade Secret No. 1 to prepare 

patent applications on “Methods of Skin Analysis and Uses Thereof.” PX153 and 

149. PLLG argues that it developed its DNA test independently.
NAI-1503303499v1 -5-

Wellbeing has responded to Harper’s contention by citing Dr. Metzker’s 

testimony that Harper used Trade Secret No. 1 to prepare her patent applications 

and that Harper’s PCT application, which was published, disclosed Trade Secret 

No. 1. 7RR71, 143. Metker’s conclusions are supported by the fact that David 

Urman, who worked for Harper and PLLG, sent Wellbeing data cards and 

“extended” data cards to Harper’s patent attorney. PX291 and 295. Indeed, one of 

the Wellbeing extended data cards that Urman sent to Harper’s patent attorney was 

copied into the PCT application. PX22, 153-0065-72. Metzker’s opinions are also 

supported by the facts that the PCT application disclosed eleven of the twelve 

genes and eight of the fifteen SNPs in Trade Secret No. 1. 1 PX159; 7RR-51, 143 

and 147. Harper did not object to Metzker’s testimony.

Wellbeing has responded to PLLG’s argument about the development of its 

SNP panel by citing the fact that Harper emailed to DiBella, whom PLLG hired to 

develop the SNP panel, Wellbeing data cards (one modified to add the rs number) 

and Wellbeing’s list of its SNP functions. PX83. Wellbeing also relies on Dr. 

Metzker’s testimony that DiBella, who had never previously created a DNA test, 

used Wellbeing’s Trade Secret No. 1 to develop PLLG’s DNA test. 7RR21-22. 

Metzker cited the fact that the original test panel Harper sent to Qivana, LLC to 

give to the new lab, Sorenson Genomics, had eight of Wellbeing’s fifteen SNPs 

and Wellbeing had used one of those SNPs twice. PX112; 7RR64. Some of the 
NAI-1503303499v1 -6-

Wellbeing SNPs were dropped – but only because Sorenson could not quickly 

obtain the reagents needed to test for those SNPs. 7RR147-148; see also PX141. 

Again, no objection was made to Metzker’s testimony.

ARGUMENT

A. Proof of Access to Trade Secret No. 1 by Harper and PLLG.

1. Standard of Proof of Access to Trade Secrets.

No one decision provides one specific standard for proof of access to a trade 

secret; but several courts have addressed the issue of the sufficiency of the 

plaintiff’s proof of a defendant’s access to trade secrets in issue under Texas law.

In Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867 (5th Cir. 2013), Plaintiff 

Wellogix, Inc. (“Wellogix”) developed software that allowed oil companies to 

“plan, procure, and pay for complex services” online. The software included 

“dynamic templates” that adjusted cost and supply estimates based on “intelligence 

built into” the underlying source code. Id., at 873. The Court of Appeals 

concluded that Wellogix had presented sufficient evidence to support the jury’s 

finding that Defendant Accenture, LLP (“Accenture”) had improperly acquired 

Wellogix’s trade secrets, based on the following evidence:

Wellogix showed: that it entered into six confidential 

agreements with Accenture; that through the marketing 

agreements, Accenture had access to Wellogix trade secrets; 

that Accenture also had access to Wellogix trade secrets 

uploaded to the confidential eTrans portal; and that an 

Accenture email referenced ‘harvesting IP from Wellogix.’
NAI-1503303499v1 -7-

Id., at 876. The Court of Appeals rejected Accenture’s argument that the 

testimony of Kendyl Roman, Wellogix’s expert, was insufficient evidence that 

Wellogix’s trade secrets were available on Wellogix’s eTrans portal – to which 

Accenture had access. Roman had testified that – based on his experience in the 

software industry – he believed it likely that companies working together on a pilot 

project – like Wellogix and Accenture – would share documents containing trade 

secrets on an online portal. Roman also relied on a contractor’s deposition 

testimony that information “resembling” Wellogix’s trade secrets was on the 

eTrans portal. The Court of Appeals concluded that Roman’s testimony was 

sufficient evidence of access:

Given that ‘an expert is permitted wide latitude to offer 

opinions,’ Daubert, 509 U.S. at 592, 113 S.Ct. 2786, and that, 

as discussed below, Roman’s testimony was sufficiently 

‘reliable’ and “relevant,’ the jury was reasonable in crediting 

his testimony.

Id.

The Court of Appeals also rejected two other contentions by Accenture 

based on the testimony of Wellogix CEO Ike Epley. First, Accenture contended 

that Epley’s testimony that one of Wellogix’s pilot project partners, Trade Rangers, 

“had access” to Wellogix’s source code did not support the “inferential leap” that 

Accenture had such access. Second, Accenture contended that Epley’s testimony 

that the code was behind a firewall showed that it was not possible for Accenture 
NAI-1503303499v1 -8-

to access the trade secrets in the software. The Court of Appeals concluded that 

Accenture’s involvement in the Trade Ranger pilot project as a consultant and 

implementer supported the inference that Accenture could have accessed 

Wellogix’s source code through the pilot project. As for the firewall, the Court of 

Appeals stated that the jury could have inferred that Accenture “otherwise had 

access to” the code – for example by entering into confidentiality agreements. 

Finally, the Court of Appeals rejected Accenture’s reliance on the testimony 

of Wellogix’s corporate representative, John Chisholm, that Wellogix never gave 

Accenture access to source code, stating: “we decline to assume ‘jury functions’ 

by weighing Chisholm’s credibility against Epley’s.” Id., at 876-877.

In Spear Marketing, Inc. v. Bancorpsouth Bank, 2014 WL 2608485 (N.D. 

Tex. June 11, 2014), aff’d. 791 F.3d 586 (5th Cir. 2015), the District Court found 

sufficient evidence of access but granted summary judgment to the defendants 

because there was insufficient evidence of use. Like Wellogix, Spear involved 

trade secrets in software – a program called VaultWorks that Plaintiff Spear 

Marketing, Inc. (“SMI”) designed to help banks reduce the amount of cash – a 

nonearning asset – they hold in bank branches, ATMs and central vaults. SMI had 

licensed VaultWorks to Defendant BancorpSouth Bank (“BancorpSouth”). On 

April 6, 2010, SMI’s President, Bill Spear contacted co-Defendant Argo Data 

Resource Corporation (“ARGO”) to see if ARGO wanted to purchase SMI or enter 
NAI-1503303499v1 -9-

into a partnership with SMI. Subject to an agreement to treat SMI’s disclosure to 

ARGO confidentially, SMI presented a demonstration of its technology to ARGO 

via an internet-telephone conference call involving Bill Spear and Todd Robertson, 

ARGO’s Vice President and other representatives of ARGO.

Defendants BancorpSouth and ARGO moved for summary judgment. They 

contended that there was no evidence that they had used SMI’s trade secrets in 

connection with ARGO’s development of a competing program referred to as CIO. 

SMI responded by arguing that the motion should be denied because there was 

evidence of defendants’ access to VaultWorks and because there were similarities 

between CIO and VaultWorks. The District Court found there was a genuine issue 

of material fact as to access. The evidence the District Court cited may be 

summarized as follows:

1. Defendants’ implementation of ARGO’s CIO at 

BancorpSouth, including:

a. Emails between Defendants with VaultWorks’ 

screen-shots displaying cash data from certain 

BancorpSouth branches;

b. ARGO’s Project Status Reports detailing the 

progress of CIO’s implementation at BancorpSouth; and

c. An agenda for the CIO Kick-Off Meeting with 

slide containing screen-shots of VaultWorks.

2. Discussions between Bill Spear and Todd Robertson:
NAI-1503303499v1 -10-

a. Robertson’s internal email summarizing what he 

learned from Spear’s demonstration on April 6, 2010; 

and

b. Spear’s declaration about information conveyed to 

Robertson.

Id., at 8.

Based on this evidence, the District Court decided that SMI had raised a 

genuine dispute regarding whether Defendants accessed “at least some” of SMI’s 

trade secrets:

A reasonable juror could find that ARGO had access to certain 

trade secrets connected to VaultWorks through BancorpSouth’s 

somewhat detailed demonstration at the CIO Kickoff Meeting 

and Spear’s declaration concerning his unrecorded 

demonstration of VaultWorks. The VaultWorks screen-shots 

also arguably gave ARGO access to certain trade secrets 

identified by SMI. Admittedly, the evidence of Defendants’ 

access to SMI’s specific trade secrets is hardly clear or 

concrete. But it seems sufficient at this point, given the 

somewhat relaxed evidentiary standard courts employ when 

analyzing the access element of this test.

Id.

Courts applying the trade secret law of other states agree with Wellogix and 

Spear Marketing that circumstantial proof of access to trade secrets is sufficient. 

See, e.g. Stratienko v. Cordis Corp., 429 F.2d 592, 601 (6th Cir. 2005). (“In the 

case at bar, we assume that Dr. Stratienko produced sufficient evidence of access: 

Cordis’ declarations demonstrate that Cordis, the entity that developed the Vista 

Brite 1G Catheter, had access to the information.”); Leggett & Platt, Incorporated 
NAI-1503303499v1 -11-

v. Hickory Springs Manufacturing Company, 285 F.3d 1353, 1361 (Fed. Cir. 2002) 

(“L&P’s evidence indicates that Hickory too had access to L&P’s trade secrets 

through L&P’s former employee Robert Hagemeister . . . . Hagemeister is a 

veritable repository of information on L&P products and designs. When hired by 

Hickory to design directly competing products, Hagemeister would be hard pressed 

to avoid disclosing such information.”); Sokol Crystal Products v. DSC 

Communications Corp., 15 F.3d 1427, 1430 (7th Cir. 1994). (“ . . . [T]he simple 

fact that Sokol shipped its product to DSC would likely be sufficient evidence to 

sustain the jury’s verdict” [that DSC had access to Sokol’s trade secret]); Pioneer 

Hi-Bred Inc. v. Holden Foundation Seeds, 35 F.3d 1226, 1233 (8th Cir. 1994) 

(“Pioneer presented no direct evidence regarding how Holden obtained 

H3H/H43527. However, ‘direct evidence of industrial espionage are rarely 

available and not required.”); and Electro-Miniatures Corp. v. Wendon Co., Inc., 

771 F.2d 23, 26 (2nd Cir. 1985) (“It is true, as [Defendant] Wendon emphasizes, 

that [Plaintiff] EMC failed to establish the precise nature of the drawings Wendon 

acquired.... However, from the evidence, the jury might reasonably have inferred 

that Wendon had access to other drawings besides those it admitted receiving or to 

other sources of information about EMC’s trade secrets.”)

The cases cited above support at least the following standards for evaluation 

of the sufficiency of evidence of a defendant’s access to trade secrets:
NAI-1503303499v1 -12-

1. The plaintiff does not have to provide direct evidence 

that it delivered or made available all of the elements of a 

combination trade secret to the defendant in one 

document. See Wellogix, Speer and Pioneer Hi-Bred.

2. A finding of access may be based on circumstantial 

evidence such as the defendant’s inability to develop the 

technology in question without access to plaintiff’s trade 

secret(s) and/or a defendant’s development of the 

technology in question after gaining access to the 

plaintiff’s trade secrets. See Speer Marketing.

3. It is sufficient that the plaintiff proves the defendant 

likely had access to some of the trade secret information 

by virtue of the parties working together on a project. 

See Wellogix, Speer and Electro-Miniatures.

4. A defendant’s use of data and documents generated by or 

relating to the trade secret(s) while working on a similar, 

competitive product will support a finding that the 

defendant had access to the trade secret(s). See Speer 

Marketing.

5. Indeed, a defendant’s hiring of a former employee of the 

plaintiff who knows the trade secret(s) is sufficient. See

Leggett & Platt.

6. Or the defendant’s receipt of the plaintiff’s product may 

be sufficient. See Sokol.

7. The court should not assume the jury’s function of 

weighing the credibility of witnesses. See Wellogix.

8. An expert who has reviewed the file and whose opinion 

is deemed reliable should be given great latitude to testify 

about access. See Wellogix.
NAI-1503303499v1 -13-

2. Wellbeing’s Evidence of Access to Trade Secret No. 1 by Harper 

and PLLG

Wellbeing presented evidence of access to Trade Secret No. 1 by Harper and 

PLLG, including the following.

1. Mazy provided data cards for each of the genes in Trade 

Secret No. 1 to Harper and PLLG. Each of the twelve 

data cards cited a small number of references that 

provided the rs numbers in Trade Secret No. 1. Indeed, 

one reference cited two rs numbers in its title. PX21; 

5RR7-11. The rs numbers identify particular SNPs. 

7RR31

2. PLLG included eight of Wellbeing’s SNPs in the SNP 

panel if sent to Qivana to give to its lab, Sorenson. PX 

112. The title of the first reference on Wellbeing’s data 

card for the GPX1 gene was “The Mn-superoxide 

dismutase single nuecleotide polymorphism rs 4880 and 

the glutathione peroxidase 1 single nucleotide 

polymorphism rs 1050450 are associated with aging and 

longevity in the oldest old.” PX21-0006. (App. 4) 

Wellbeing uses the SNP represented by rs 1050450 with 

regard to the GPX1 gene in two skin health categories: 

Firmness and Elasticity and Free Radical Damage. 

Wellbeing uses the SNP represented by rs4880 with 

regard to the SOD2 gene. Therefore, the article was also 

listed by Wellbeing as a reference on Wellbeing’s data 

card for the SOD2 gene. PX-0025 Both of these SNPs 

were included in the panel of SNPs PLLG submitted to 

Qivana to give to Sorenson. PX112 The SNP 

represented by rs 1050450 was eliminated from Harper’s 

“new” test, but only because Sorenson could not find a 

reagent needed to test for it. PX141

3. Mazy also cited references in Wellbeing’s data cards that 

did not state the rs number in question in the title but did 

provide the rs number in the body of the article. For 

example, Mazy cited an article titled: “Leptin-Receptor 

Polymorphisms Relate to Obesity through Blunted 
NAI-1503303499v1 -14-

Leptin-Mediated Sympathetic Nerve Activation in a 

Caucasian Male Population.” PX 2-0448; 5RR8; App. 5 

This article is a reference in the data card for the LEPR 

gene. PX 21-00009 The article refers to three SNPs –

represented by rs 1137100, rs 115701 and rs 179183. 

PX2-0450 The first SNP is used by Wellbeing. 

STIP00073 The second SNP was included in PLLG’s 

“new” test. PX112

4. Another article Mazy cited was titled: “Two newly 

identified genetic determinants of pigmentation in 

Europeans.” PX2-0505-7 (App. 6) It is a reference cited 

on Wellbeing’s data card for the ASIP gene. PX2-0012 

The article is only two and a half pages long. In a table 

on page 2, the article cites two and only two SNPs with 

respect to the ASIP gene – SNPs represented by rs 

1015362 and rs 4911414. PX2-0506 These are the two 

SNPs Wellbeing uses with respect to the ASIP gene. 

PLLG included both SNPs in the SNP panel it sent to 

Qivana to give to Sorenson. PX112

5. Mazy cited additional examples of disclosures in the 

references of rs numbers for SNPs used in Wellbeing 

SkinDNATM Test (5RR9-11) and further examples can be 

found in other articles. PX 2. 

6. In at least one instance, there is direct evidence Harper or 

DiBella obtained an rs number for a Wellbeing SNP from 

a data card provided by Wellbeing. Plaintiff’s 

Exhibit 178 was a screen shot of SNP information for the 

MMP-1 gene taken from the NCBI database that Mazy 

provided to Harper. It highlighted rs 1799750, a SNP 

Wellbeing used in its test. When Harper sent the 

extended data card for the MMP-1 to DiBella, who 

prepared a SNP panel for PLLG, Harper added this rs 

number to it. PX83

7. Moreover, Harper asked for Mazy’s scientific references. 

On November 7, 2012, Harper wrote to Urman: “When 

we get the info from Stefan on SNPs, we want to 

complete journal articles so we are more informed about 
NAI-1503303499v1 -15-

them than anyone else . . . .” PX73 Urman understood 

that Harper was referring to the articles cited in 

Wellbeing’s data cards. 6RR20 One day later, Urman 

wrote to Mazy: “Good morning! Can you get us the 

article for all of the SNPs that support the data cards?” 

PX99 

8. On average a human has 3.5 million DNA variants. 

SNPs are DNA variants that occur in 1% or more of the 

population. 7RR23-24. Each gene has between 500 and 

1,000 SNPs. PX26. Mazy testified that he considered 

6,000 genes and closely evaluated 200 of them before 

choosing twelve genes for Trade Secret No. 1. 4RR83-

86. Therefore, Mazy considered thousands of SNPs. 

Moreover, Mazy showed the jury a huge stack of articles 

he read and still had at trial (20% of the total he read) that 

he relied upon to evaluate whether particular SNPs were 

associated with the skin health categories he had chosen. 

PX2; 4RR 117-119.

9. The number of articles cited in the data cards was far 

smaller than the number of articles Mazy had read to 

develop his test. PX2; 4RR117-119. Moreover the data 

cards grouped the articles by gene. PX21 The fact that 

the DNA panel PLLG sent to Qivana contained eight of 

Wellbeing’s SNPs is not a coincidence.

10. Harper and DiBella prepared a test panel of SNPs in 

three months. 9RR70-71. It took Mazy three years to 

develop Trade Secret No. 1. 4RR77

Dr. Metzker testified that Harper misappropriated Trade Secret No. 1 –

based not only on the above-cited evidence (7RR21, 49-52, 57-61, 64-65, and 70-

72), but also his opinions that neither Harper nor DiBella was qualified to develop 

a DNA test and certainly would not have been able to develop a DNA test in three 
NAI-1503303499v1 -16-

months without Trade Secret No. 1. 7RR53-57 and 65-69. Harper and PLLG did 

not object to the admission of Metzker’s opinions at trial.

B. Proof of Use or Disclosure of Trade Secret No. 1 by Harper and by 

PLLG.

1. Standard of Proof of Use or Disclosure of a Trade Secret.

The District Court charged the jury on “use” of a trade secret as follows:

“Use” means a commercial use by which a person seeks to 

profit from the trade secret. Merely receiving trade secret 

information does not constitute “use” of a trade secret. 

Misappropriation does not require that the person use the trade 

secret in exactly the form in which the person received it; 

however, it must be substantially derived therefrom. There is 

no misappropriation when the contribution of the trade secret is 

slight and the person’s process can be said to have been derived 

from other sources.

(ICR2980)

This instruction was correct – and is not challenged on appeal by Harper or 

PLLG. In SW Energy Production Co. v. Berry-Helfand, 491 S.W.3d 699 (Tex. 

2016), the Supreme Court stated that “use” of a trade secret means “’commercial 

use by which the offending party seeks to profit from the use of the trade secret.’” 

Id., at 722 (quoting Global Water One, Inc. v. Atchley, 244 S.W.3d 924, 930 (Tex. 

App. – Dallas 2008, pet. denied). The Supreme Court added that “use” of a trade 

secret includes relying on the trade secret “’to assist or accelerate research or 

development.’” Id. (quoting RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 

comt. c)
NAI-1503303499v1 -17-

In GlobeRanger Corp. v. Software AG United States of America, Inc., 836 

F.3d 477 (5th Cir. 2016) (applying Texas law), the Court of Appeals commented on 

the above statements by the Texas Supreme Court in Southwestern Energy as 

follows:

Southwestern Energy thus removes any doubt that Texas 

follows this principle of “traditional trade secret law,” which 

recognizes that if the concept of use “were not flexible enough 

to encompass modified or even new products that are 

substantially derived from the trade secret of another, the 

protections the law provides would be hollow indeed.”

Id., at 498-499.

In GlobeRanger, the Court of Appeals held that GlobeRanger Corp. 

(“GlobeRanger”) had provided sufficient evidence to show that Software AG US 

of America, Inc. (“Software AG”) had used GlobeRanger’s Navy Solution, a radio 

frequency identification (“RFID”) technology, to develop its own product. The 

Court of Appeals cited the following evidence:

Software AG accessed implementations of the Navy Solution; 

received confidential system keys under the pretense of 

maintenance; acknowledged trying to replicate GlobeRanger’s 

functionality and obtained confidential source code from a 

former GlobeRanger employee in order to figure out how the 

technology worked, all while it was in the process of making its 

own product to perform similar functions.

Id., at 499. In short, the Court of Appeals accepted evidence of defendant’s access 

to plaintiff’s trade secrets while developing a competing product to perform similar 
NAI-1503303499v1 -18-

functions. It did not require evidence that defendant’s product was the same as or 

even substantially similar to plaintiff’s product.

Moreover, in GlobeRanger, the Court of Appeals cited its prior decision on 

this point in Wellogix, Inc. v. Accenture, L.L.P., supra (applying Texas law). 

Wellogix presented evidence that Accenture and its partner, SAP, had been able to 

access Wellogix’s dynamic templates source code that had been uploaded to a 

confidential eTrans portal. The Court of Appeals cited that evidence and an 

Accenture document stating that its software had to have similar or better 

technology than Wellogix and other Accenture documents referencing Wellogix’s 

templates as supporting the jury’s conclusion that Accenture used Wellogix’s trade 

secrets. Id., at 877.

In Wellogix, the Court of Appeals also addressed Accenture’s arguments 

that: (1) its templates lacked “dynamic” features and therefore were “nothing like 

Wellogix’s;” and (2) “Wellogix doesn’t own the concept of templates.” Similarly, 

PLLG has argued that its DNA test looks different than Wellbeing’s DNA test, 

which utilizes Trade Secret No. 1, and that Wellbeing does not own the concept of 

DNA testing to determine skin treatments. In Wellogix, the Court of Appeals 

rejected these arguments:

However, the standard for finding “use” is not whether 

Accenture’s templates contained Wellogix trade secrets, but 

whether Accenture “rel[ied] on the trade secret[s] to assist or 

accelerate research or development of its templates. HAL, 500 
NAI-1503303499v1 -19-

F.3d at 451 (quoting RESTATEMENT (THIRD) OF UNFAIR 

COMPETITION § 40). A jury could “legitimate[ly] infer[,]” 

Reeves, 530 U.S. at 150, 120 S.Ct. 2097, on the basis of, for 

example, the Accenture email suggesting that the company 

should “[u]se Wellogix for content,” that Accenture “rel[ied]” 

on Wellogix’s templates to develop its own. See HAL, 500 

F.3d at 451.

Id., at 877-8.

A Texas Court of Appeals has also considered this sufficiency of evidence 

of use of a trade secret question. In Bishop v. Miller, 412 S.W.3d 758 (Tex. App. –

Houston [14th Dist.] 2013, no pet.), Plaintiffs William Bishop and Pinnacle Potash 

International, Ltd. (“Pinnacle”) asserted that thirteen pieces of information on a list 

of Bishop’s technical plans for mining for potassium in a region of Utah known as 

The Ten Mile Area were trade secrets. Bishop and Pinnacle further asserted that a 

compilation of one or more of those items was also a trade secret. The jury found 

that three of the items and a compilation of them were trade secrets and that those 

trade secrets were misappropriated by Defendants E. Barger Miller and Reunion 

Potash Company (“Reunion”). 

Regarding use, the Court of Appeals found there was evidence that Reunion 

had “used” Bishop’s trade secrets in two ways. First, Miller used the trade secrets 

to attempt to entice a third party into investing money in Reunion to develop the 

subject mining leases. Second, Reunion used the trade secrets to develop an 
NAI-1503303499v1 -20-

Operating Plan for the development of the one acre. The Court of Appeals’ 

comments on the latter finding are most relevant to Wellbeing’s case.

Bishop conceded that Reunion’s Operating Plan did not copy his plan, which 

was based on his trade secrets, “in toto”; but Bishop asserted that Reunion’s 

Operating Plan was “very similar” to his and used “major pieces of his plan.” Id., 

at 773. Bishop’s technical expert witness, Kenneth Mills, broke Bishop’s plan into 

twenty-one component parts and concluded that Reunion’s Operating Plan 

incorporated fifteen of those components, and either modified or discarded the 

remaining six components. Mills further testified that without the “Bishop Plan” 

Reunion’s modifications would never have been done. Id., at 774.

Regarding Bishop’s testimony, the Court of Appeals observed that the 

unauthorized use of a trade secret “need not extend to every aspect or feature of the 

trade secret; use of any substantial portion of the secret is sufficient to subject the 

actor to liability.” Id. (quoting RESTATEMENT (THIRD) OF UNFAIR COMPETITION

§ 40 comt. c) Regarding Mills’ testimony, the Court of Appeals stated:

(“[T]he actor need not use the trade secret in its original form. 

Thus, an actor is liable for using the trade secret with 

independently created improvements or modifications if the 

result is substantially derived from the trade secret.”).

Id. (again quoting comment c.)

The Court of Appeals noted that the three trade secrets found by the jury 

were among the components of the Bishop Plan that Reunion had modified, but the 
NAI-1503303499v1 -21-

Court cited Mills’ testimony that the modifications in Reunion’s Operating Plan 

would never have been made if not for Reunion’s use of Bishop’s trade secrets as 

supporting the jury’s finding of misappropriation. Id., n. 20.

In the end, the Court of Appeals concluded that the similarities between 

Bishop’s and Reunion’s plans and Mills’ testimony regarding Reunion’s 

modifications was sufficient evidence to support the jury’s finding of 

misappropriation stating: “The evidence was such that reasonable and fair minded 

people could reach the verdict the jury reached in this case.” Id., at 775.

In conclusion, with regard to evaluating a defendant’s alleged use of a trade 

secret GlobeRanger, Wellogix, and Bishop offer the following standards:

1. “Use” of a trade secret means any commercial use by 

which a person seeks to profit from the trade secret. See 

GlobeRanger. See also Southwestern.

2. A plaintiff need not introduce direct evidence of a 

defendant’s use of a trade secret. Evidence, even 

circumstantial evidence, of a defendant’s access to the 

alleged trade secret and intention to develop similar 

technology will suffice. See GlobeRanger.

3. A defendant’s product need not contain the trade secret. 

If the defendant relied upon the trade secret to assist or 

accelerate its research, that is a use that supports a 

finding of misappropriation. See Wellogix.

4. Unauthorized use need not extend to every aspect, feature 

or component of a trade secret. It is sufficient if the 

defendant’s technology or product is substantially 

derived from the plaintiff’s trade secret(s). See Miller.
NAI-1503303499v1 -22-

The District Court’s charge to the jury on the definition of “use” of a trade 

secret conforms to these standards.

2. Wellbeing’s Evidence of Use of Trade Secret No. 1 by Harper and 

PLLG.

a. Evidence of Use of Trade Secret No. 1 by Harper

Wellbeing presented evidence Harper used Trade Secret No. 1 to prepare her 

patent applications, including the following:

1. Harper had access to Trade Secret No. 1. See above.

2. David Urman, who worked for Harper and PLLG, sent 

Wellbeing data cards and “extended” data cards to 

Harper’s patent prosecution counsel. PX291 and 295.

3. Wellbeing’s “extended” data card for the MMP-1 gene 

was inserted into Harper’s provisional patent application 

and Harper’s PCT application (minus Mazy’s citations to 

scientific articles.) PX22 and 153-0065-72, 159-0041.

4. Harper’s PCT patent application disclosed eleven of the 

twelve genes in Trade Secret No. 1 PX159; 7RR51.

5. Harper’s PCT application disclosed twelve of the fifteen 

SNPs in Trade Secret No. 1. 7RR143. Table 2 alone 

disclosed eight of the SNPs in Wellbeing’s test.

6. Harper’s PCT application disclosed the Wellbeing SNPs 

it disclosed in the same skin health categories as Trade 

Secret No. 1. 7RR146. There were many other skin 

health categories that Wellbeing or Harper and PLLG 

could have used. 4RR109; 7 RR 33-34.

Based upon these facts and his review of all of the documents produced in 

the case and all of the testimony in the case, Dr. Metzker testified that Harper’s 

patent applications contained and disclosed Wellbeing’s Trade Secret No. 1 and
NAI-1503303499v1 -23-

that the publication of Harper’s PCT application destroyed Trade Secret No. 1. 

7RR71, 143. Harper and PLLG did not object to the admission of this testimony 

by Metzker.

Moreover Harper and PLLG used Harper’s provisional patent application to 

obtain an Exclusive Distribution Agreement with Qivana. At the outset of the 

parties’ negotiations, Urman sent Harper’s provisional patent application to 

Qivana. PX57; 8RR127. Justin Banner, a founder of and key decision-maker for 

Qivana testified he was looking for a unique skin care product for Qivana to 

distribute. Banner further testified that in order to obtain a patent one has to have 

something that is unique. Therefore, Banner concluded that PLLG likely had a 

unique skin care product line – exactly what Qivana was looking for. 8RR127. 

Ultimately, Qivana licensed Harper’s patent-pending technology as part of its 

agreement with PLLG. PX128-002 and 3-5.

b. Evidence of Use of Trade Secret No. 1 by PLLG.

Wellbeing presented evidence of PLLG’s use of Trade Secret No. 1 to 

develop its SNP panel for a DNA test, including the following:

1. PLLG had access to Trade Secret No. 1. See above.

2. PLLG hired Dr. Linda DiBella to help develop a SNP 

panel for its DNA test. 10RR25. Harper sent Wellbeing 

data cards and a list of each gene in Trade Secret No. 1 

and its function to DiBella. PX83.

3. DiBella had no prior experience developing a DNA test. 

9RR70.
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4. DiBella started work on an SNP panel on January 18, 

2014. 9RR70-71. By April 22, 2014, DiBella had 

prepared a SNP panel. PX112.

5. PLLG sent the SNP panel DiBella prepared to Qivana to 

give to the new testing laboratory run by Sorenson 

Genomics, LLC. PX112.

6. The SNP panel that PLLG sent to Qivana to give to 

Sorenson included eight of the fifteen SNPs in Trade 

Secret No. 1. STIP00073; PX112.

7. The reason some of those SNPs did not end up in the 

SNP panel Sorenson used is that Sorenson found many of 

the reagents it needed to use to identify the SNPs were 

not readily available. 7RR147-148. For example, in one 

email Lars Mouritsen, the Chief Scientific Officer of 

Sorenson, sent to Harper and Urman shortly after 

receiving PLLG’s proposed SNP panel, Mouritsen listed 

three Wellbeing SNPs for which reagents were not 

immediately available. PX141.

8. In total, DiBella spent about 100 hours on PLLG’s SNP 

panel. 9RR71. In contrast, Mazy spent thousands of 

hours over three years to develop Wellbeing’s SNP panel 

which is Trade Secret No. 1. 4RR77-78.

9. Harper, PLLG and DiBella did not produce detailed work 

papers like Mazy did. PX1, 2, 4 and 7.

Based on this evidence, Dr. Metzker testified that PLLG had used Trade 

Secret No. 1 to develop its SNP panel. Specifically, Metzker testified that PLLG 

used Trade Secret No. 1 as the “starting point” to develop its test panel. 7RR149. 

PLLG did not object to this testimony by Metzker.
NAI-1503303499v1 -25-

C. This Court Should Not Reverse the Judgment Based on Either Harper’s 

or PLLG’s Allegation of No Evidence or Insufficient Evidence of their 

Access to and Use/Disclosure of Trade Secret No. 1.

Per the standards established by the above-cited cases, there is plenty of 

evidence to support the jury’s findings that Harper and PLLG misappropriated 

Wellbeing’s Trade Secret No. 1. The evidence summarized above, including the 

opinion testimony of Wellbeing’s technical expert, Dr. Metzker, was admitted 

without objection by Harper and PLLG. The evidence is far more than the 

proverbial scintilla of evidence because it was sufficient to enable reasonable and 

fair minded people to conclude Harper and PLLG misappropriated Trade Secret 

No. 1. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). During oral 

argument, Harper’s and PLLG’s counsel argued that in addition to their no 

evidence contentions they also asserted that the evidence was insufficient. As this 

Court well knows, it “must consider and weigh all the evidence, and should set 

aside the verdict only if it is so contrary to the overwhelming weight of the 

evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 

(Tex. 1986). That is not the case here. Indeed, while Harper’s and PLLG’s expert, 

Dr. Carlos Bustamante, contested Wellbeing’s contention that Trade Secret No. 1 

was in fact a trade secret, he did not contest Wellbeing’s contentions that Harper 

and PLLG had access to and used and disclosed Trade Secret No. 1.
NAI-1503303499v1 -26-

CONCLUSION AND PRAYER

For the above reasons, and for the reasons stated in Wellbeing’s Brief of 

Appellee, this Court should affirm the Judgment of the District Court.
NAI-1503303499v1 -27-

Respectfully submitted,

/s/ Robert W. Kantner

State Bar No. 11093900

rwkantner@jonesday.com

JONES DAY

2727 North Harwood Street

Dallas, Texas 75201-1515

Telephone: (214) 220-3737

Facsimile: (214) 969-5100

ATTORNEY FOR APPELLEE

WELLBEING GENOMICS PTY LTD.
NAI-1503303499v1 -28-

CERTIFICATE OF SERVICE

On January 5, 2018, I electronically filed this brief with the Clerk of the 

Court using the eFile.TXCourts.gov electronic filing system which will send 

notification of such filing to the following (unless otherwise noted below).

Marcy Hogan Greer

State Bar No. 08417650

mgreer@adjtlaw.com

ALEXANDER DUBOSE JEFFERSON &

TOWNSEND LLP

515 Congress Avenue, Suite 2350

Austin, Texas 78701-3562

Telephone: (512) 482-9300

Facsimile: (512) 482-9303

William T. (“Tommy”) Jacks

State Bar No. 10452000

jacks@fr.com

David S. Morris

State Bar No. 24032877

dmorris@fr.com

FISH & RICHARDSON P.C.

111 Congress Avenue, Suite 810

Austin, Texas 78701

Telephone: (512) 472-5070

Facsimile: (512) 320-8935

Attorneys for Appellants

/s/ Robert W. Kantner

Robert W. Kantner