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Storagecraft Technology Corporation v Kirby

Case No. 12-4182 (C.A. 10, Mar. 11, 2014)

James Kirby says the jury’s award against him is too much. True, he helped start and served as a director of StorageCraft, a computer software company. True, after a falling out with his colleagues he stole the computer source code on which the company’s products depend. True, he shared the source code with NetJapan, a rival company that quickly produced a competing software product much like StorageCraft’s. But the jury’s $2.92 million trade secret misappropriation award is still too much. Too much, Mr. Kirby says, because he never used the secret for his own personal profit. And too much because StorageCraft never sought to prove at trial that NetJapan made commercial use of its trade secret either. Maybe he was angry about how his former colleagues had treated him, maybe he disclosed the trade secret to a rival out of vengeance. But without firmer proof that someone profited from his misdeed Mr. Kirby insists the jury’s verdict should be overturned.

The trouble is Utah law doesn’t distinguish between a misappropriator’s venial motives. When someone steals a trade secret and discloses it to a competitor he effectively assumes for himself an unrestricted license in the trade secret. And that bears its costs. After all, what value does a trade secret hold when it’s no longer a secret from the trade? The misappropriator may act with a wish to line his pockets or satisfy a vendetta or for some other purpose still. All the same Utah’s trade secret statute holds him to account for the full value of the license he arrogated to himself. Just as the district court held.

I



Mr. Kirby’s argument otherwise takes various but related forms. In its first and most ambitious guise Mr. Kirby insists a trade secret plaintiff cannot seek and obtain a “reasonable royalty” measure of damages — as StorageCraft did in this case — without proving the misappropriating defendant made commercial use of the secret. He presses this same essential point in at least three different ways — suggesting he is entitled to judgment as a matter of law because the record contains no evidence of commercial use, claiming that a new trial is warranted for the same reason, and arguing the district court erred by failing to give a jury instruction requiring proof of commercial use. But however the argument is dressed, underneath lies the same problem: Utah’s trade secret statute, the law governing Mr. Kirby’s case, expressly allows a reasonable royalty measure of damages when the misappropriator uses or discloses the trade secret. And no one disputes that Mr. Kirby did at least that — disclosing the secret to NetJapan.
 

 

Judge(s): Neil M. Gorsuch
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Competition , Damages , Torts , Trade Secret
 
Circuit Court Judge(s)
Neil Gorsuch
Stephanie Seymour
Timothy Tymkovich

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Thomas Karrenberg Anderson & Karrenberg PC
Heather Sneddon Anderson & Karrenberg PC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Richard Ensor Vantus Law Group PC

 

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beyond these definitional difficulties, where (as here) a defendant discloses “willing licensor/willing licensee” description is “an inaccurate, and even absurd, the uniform trade secrets act), a reasonable royalty award does depend on “the every case, those tasked with estimating a reasonable royalty bear the when a party objects to proposed expert testimony, the court “must adequately evidence. mr. kirby complains as well that the district court failed to discharge was allowed. 504 f.2d 518, 539 (5th cir. 1974). the problem is, university 3 and most ambitious guise mr. kirby insists a trade secret plaintiff cannot seek and - 13 - in the end, though, arguments like these are more appropriately directed to of the damages he must pay) and formally at least liability is the only subject of share the trade secret with a rival and permit (if not compel) its commercial but because the parties stipulated that storagecraft’s misappropriation and breach entirely fit for the task. an award based on unjust enrichment risks utah’s policy choice to permit “reasonable royalty” awards as a “general option” between the patent act and uniform trade secrets act on this score is hardly reversal if the appellee can persuade us the error was harmless. if, for example, it jury’s verdict should be overturned. the trade secret to storagecraft’s competitor; that this diminished the value of its disclosure cases like his, mr. kirby insists the damages assigned by the jury in his wasn’t detailed enough to discharge its gate-keeping duties, we are confident any that an award of $2.92 million is unreasonable as a matter of law when premised court’s award of attorneys’ fees likewise require no extended discussion. he secret. and that bears its costs. after all, what value does a trade secret hold 2 - 18 - ltd. v. rockwell int’l corp., 150 f.3d 1354, 1361-62 (fed. cir. 1998). mr. difficult, too, in these circumstances. complexities like these may be disclosure. their focus has been and must be on authorized uses. to be sure, measured by any other methods,” the reasonable royalty measure of damages is that matter, was roach’s statement even a part of the court’s holding in that case. including worries that hypothetical royalty negotiation exercises themselves might corporation, available “for a misappropriator’s unauthorized disclosure or use of a trade excess of the plaintiff’s actual losses. cf. rite-hite corp. v. kelley co., 56 f.3d seems kinser simply wasn’t brought to the court’s attention in roach; neither, for would wish to make reasonable royalty awards generally available to product much like storagecraft’s. but the jury’s $2.92 million trade secret of the law, amounting less to a daubert objection than a sort of renewal of his 1212, 1227 (10th cir. 2003); goebel, 215 f.3d at 1088. at the same time, a before tymkovich, seymour, and gorsuch, circuit judges. price they must pay for their patent. universal oil prods. co. v. globe oil & ref. intentionally disclosed it to netjapan, aware that netjapan was an able the amount of reasonable royalty damages he must pay undoubtedly depends on two housekeeping items. besides attacking storagecraft’s trade secret as well as use. see unif. trade secrets act § 3 & cmt. (amended 1985); cf. hertz l. rev. 655, 667 (2009) (worrying that “some patentees who can prove lost by the defendant.” restatement (third) of unfair competition § 45 cmt. g; see state must be as solicitous to it as utah. rather than follow the uniform trade disgorge. see restatement (third) of unfair competition § 45 cmt. g gorsuch, circuit judge. 1 - 7 - mr. kirby relies on various utah cases which say a precondition for trade even if reasonable royalty damages are permissible in principle for the evidence at trial showed that mr. kirby took storagecraft’s trade secret and (10th cir. 1999), abrogated in part on other grounds by weisgram v. marley co., royalty measure of damages is always the most sensible remedy. or that every university computing proceeded to hold that the defendant there engaged in “a v. the proposition that at common law a misappropriation defendant generally had to district court must furnish enough of a record to permit a reviewing court to say patent cases still provide useful instruction for courts considering damages for mr. kirby’s argument otherwise takes various but related forms. in its first mr. kirby for breach of contract as well as trade secret misappropriation. the will be presented again. see, e.g., kinser v. gehl co., 184 f.3d 1259, 1271-72 storagecraft technology offends the federal constitution’s due process guarantee. defendant - appellant. version of the facts for those the jury reasonably found at trial. see, e.g., escue v. reserved for the district court.” id. at 1208 n.7. but roach did not seek to this particular problem, it may invite practical difficulties of its own. in cases would be pointless to require a new trial at which the very same evidence can and venial motives. when someone steals a trade secret and discloses it to a (continued...) 1228 (stressing “the novelty of the [experts’] medical causation theory”); cf. they “raised great points for cross-examination.” error here was harmless. returning by way of example to the expert’s assumption can’t be read to suggest that a reasonable royalty award in trade secret cases must competitor, and aware that netjapan could well use the secret to compete with option is sometimes described as “the price that would be set by a willing buyer keeping responsibilities seriously. goebel v. denver & rio grande w. r.r. co., storagecraft never sought to prove at trial that netjapan made commercial use of utah law allows a plaintiff to proceed just as storagecraft did. contrary to disclosed the trade secret to others without anyone making commercial use of it, simply because we might prefer another. neither does mr. kirby suggest utah’s v. luzenac grp., 576 f.3d 1103, 1115 (10th cir. 2009) (noting that under 98 (utah 1981). because we are told elsewhere to make the utah uniform trade what the parties would have negotiated and of the actual losses the patentee tenth circuit between the plaintiff’s claimed lost profits and the defendant’s conduct might be testify. 582 f.3d at 1207 n.7. “[t]hat determination,” we said, “is strictly ways overlapping list. compare ga.-pac. corp. v. u.s. plywood corp., 318 f. - 8 - trial when the existing one reached the right result. its computer code. mr. kirby doesn’t dispute the principle that storagecraft on an understanding that the license mr. kirby assumed allowed him the right to secret misappropriation liability is the “use of the secret that injures” its owner. secrets act’s “plain language” our first source of guidance, water & energy sys. james kirby says the jury’s award against him is too much. true, he disclosing a trade secret is. after all, patentees aren’t allowed to keep their and a willing seller” for a license in the trade secret, a measure of damages that innovations entirely to themselves; telling us how to practice their invention is the code ann. § 13-24-2(2)(b) (emphasis added), we’re confident that “use” in these disputes that mr. kirby did at least that — disclosing the secret to netjapan. and trade secrets themselves — patent law’s treatment of reasonable royalties disclosure a use of the secret, whether or not the third party takes up the hands of far-flung third parties like netjapan. proving a causal connection (distinguishing between “a challenge to an expert’s methodology in a complicated wrongdoer rather than his victim. see, e.g., russo v. ballard med. prods., 550 source code was its lawful trade secret; that mr. kirby stole it; that he disclosed it party (like netjapan) with the intent the third party itself put the trade secret to to fix a reasonable royalty award. another has generated a different but in some but several lessons emerge from a review of our existing decisions. invitation? our earlier disagreement with mr. kirby was about the law. this time it is it retribution or profit or otherwise) be a way of putting it to use, at least in a case are still too much. if the animating idea behind the reasonable royalty disclosure cases, some states allow the remedy only when the plaintiff is unable assumption, then, was grounded in record evidence, mr. kirby’s own testimony see, e.g., usa power, llc v. pacificorp, 235 p.3d 749, 758 (utah 2010); water like ours the best evidence about the extent of the plaintiff’s lost sales isn’t these cases. but even if we assume for argument’s sake that the district court’s exegesis - 15 - trade secrets act. microbiological research corp. v. muna, 625 p.2d 690, 697- evidence.3 wrongly admitted, the presentation of that evidence might still qualify as harmless third, a district court’s insufficient gate-keeping findings may not warrant on facts like these, nor does he dispute that the value of a trade secret is seriously code with netjapan, a rival company that quickly produced a competing software the secret. he presses this same essential point in at least three different ways — tenth circuit without firmer proof that someone profited from his misdeed mr. kirby insists the press just two. the first pursues a familiar theme. he faults storagecraft’s reasonable royalty damages are a “general option” for cases involving disclosure kirby’s challenge to the jury’s award of exemplary damages and the district least in this very broad sense of the word, then, the nature of the defendant’s when it’s no longer a secret from the trade? the misappropriator may act with a dispute where courts are called on to imagine a “but for” world that should have dressed, underneath lies the same problem: utah’s trade secret statute, the law record to make its own determination that an expert witness was qualified to serious damage to the trade secret or its rightful holder. were these the facts of iii & energy sys. tech., inc. v. keil, 974 p.2d 821, 822 (utah 1999). but these secrets act and deem the reasonable royalty remedy a “general option” for seeks to recreate “an actual market transaction . . . [in] which both parties gain kuhmo, 526 u.s. at 141-42; goebel, 215 f.3d at 1088. and, other things equal, deposition testimony confirms that he and three other engineers devoted a very weight. in this way, reasonable royalty calculations demand no small measure of from the district court would not have altered the admissibility of the expert’s demonstrate by specific findings on the record” that it has taken these gate- both reliable and relevant. daubert v. merrell dow pharms., inc., 509 u.s. 579, premised on a reasonable royalty damages theory. the company argued that its suffered”). second, the district court must reply in some meaningful way to the that the jury’s $2.92 million award represents anything but a reasonable royalty. cases should be understood at least today in the broad sense we’ve identified. & karrenberg, p.c., salt lake city, utah, for plaintiff-appellee. challenges require less discussion. see, e.g., avitia-guillen, 680 f.3d at 1259 intellectual property and the products depending on it; and that mr. kirby should attention to university computing co. v. lykes-youngstown corp. and citing it for damages for misappropriation — the defendant’s unjust enrichment, the plaintiff’s for this reason and yet again he insists he is entitled to judgment as a matter of in “disclosure” cases. we are in no position to override that legislative choice passed the statute we are called upon to apply and well before the adoption of the that did exactly what roach suggested an appellate court may not do. because law or a new trial. large number of hours to its creation over a 15 to 20 month period. the expert’s restrictive license and an entirely different price for an unrestricted license in the colorado’s materially identical trade secret statute reasonable royalty damages cacique, inc. v. robert reiser & co., 169 f.3d 619, 623 (9th cir. 1999). we can - 4 - developers worked 40-hour weeks over 15 to 20 months to develop the source its trade secret either. maybe he was angry about how his former colleagues had elisabeth a. shumaker united states court of appeals its daubert duties when it dismissed his complaints summarily, stating only that as we’ve seen, by their nature some objections to expert testimony don’t computing or similar cases cited by mr. kirby happen to emphasize commercial in recognizing this much we don’t mean to suggest that the reasonable (noting the breadth of university computing’s definition of commercial use). as acknowledges that his arguments on these issues depend for their success on the march 11, 2014 taking university computing and its description of the common law at full value differences between the patent and trade secret statutes — and between patents surmountable, but the cost of doing so may be enough to explain why a state loss . . . is . . . greater than any gain acquired by the defendant”). though what we have yet to identify some unifying theory or principle for discerning the licensing negotiation it’s surely true that many considerations can come into play employed when seeking to quantify the costs storagecraft incurred in developing always and as a matter of logical necessity require commercial use.1 plaintiff - appellee, who didn’t and couldn’t make use of the secret and who therefore couldn’t do license for its intellectual property. instead, he attacks the particular assumptions “actual loss,” or “a reasonable royalty.” utah code ann. § 13-24-4(1). this last one panel of our court cannot overrule prior panel decisions and earlier panel (1995). at trial, the district court allowed storagecraft to present evidence use made of the invention by the infringer.” 35 u.s.c. § 284. but the difference belies his methodological complaint, and we can rest assured that more words diminished when it is no longer a secret from a trading rival. and we are hardly before the district court mr. kirby presented several objections to the a trade secret to a rival company in a fit of retaliatory pique without any desire code and mr. kirby says this assumption is too high, unsupported by the license he arrogated to himself. just as the district court held. there’s no need to address the contract claim here. see, e.g., celeritas techs., (d.c. no. 2:08-cv-00921-dn) utah’s uniform trade secrets act provides three possible measures of 310 (iowa 1998). under the terms of the federal patent statute (unlike those of the judgment is affirmed. the supreme court identified in daubert and kuhmo. a district court’s gate- filed trade secret misappropriation, as we have noted before. see, e.g., telex corp. v. charles alan wright & victor james gold, federal practice and procedure - 3 - those charged with writing utah’s trade secret statute than those charged with success of the arguments we’ve already addressed and rejected above. united states court of appeals been but isn’t. even if this court concludes the expert’s testimony was treated him, maybe he disclosed the trade secret to a rival out of vengeance. but also ga.-pac. corp., 318 f. supp. at 1120; univ. computing, 504 f.2d at 539. at mr. kirby’s remaining objection focuses on various assumptions the expert of contract damages awards were duplicative, the district court entered judgment explain how this statement could be squared with our earlier decision in kinser area of medical science” and a challenge to a fingerprint “expert’s qualifications commercial use in ways harmful to the secret’s owner? isn’t at least that roach, 582 f.3d 1192, 1207 (10th cir. 2009). as authorizing royalty damages for either commercial use or disclosure. made commercial use of that intellectual property in products of their own. lemley, distinguishing lost profits from reasonable royalties, 51 wm. & mary to a rival; that in doing so he effectively assumed for himself a license to reveal expert for failing to adopt his legal theory that trade secret royalty damages contains no evidence of commercial use, claiming that a new trial is warranted for about the time required to develop the computer source code, mr. kirby’s own fee the defendant would have had to pay, after negotiation, to secure a lawful united states v. roach denied that an appellate court could rely on the defendant-appellant. legislative choice offends any higher principle of law that we do have the power - 16 - decisions control over later ones, muskrat v. deer creek pub. schs., 715 f.3d from the transaction.” restatement (third) of unfair competition § 45 cmt. g clear commercial use” of the trade secret merely by displaying it to a third party daubert concerns the objector has raised. so, for example, if the reliability of an - 10 - misappropriator used a trade secret commercially rather than disclosed it to there’s nothing left for him to complain about. it’s a fact that storagecraft sued mr. kirby’s supposition, nothing in the state’s trade secret statute categorically first, it is not sufficient for a district court simply to say on the record that and here his problem lies in the record. he would have us equate him with a helped start and served as a director of storagecraft, a computer software no. 12-4182 1538, 1554 n.13 (fed. cir. 1995) (en banc) (finding in a patent case that the our case, we might agree with mr. kirby that the jury’s $2.92 million award was - 14 - ii int’l bus. machs. corp., 510 f.2d 894, 930 (10th cir. 1975). but in light of the avitia-guillen, 680 f.3d 1253, 1259 (10th cir. 2012); see also united states v. “use” of the trade secret matters a great deal in the reasonable royalty analysis. metallurgical indus. inc. v. fourtek, inc., 790 f.2d 1195, 1205 (5th cir. 1986) while a defendant in utah can’t avoid reasonable royalty damages because he broad sense of the word? what happens when the disclosure is made to a third only on the misappropriation claim. because of that, and because we affirm the (commending use of reasonable royalty measure of damages “when the plaintiff’s intellectual property when he quit. the jury accepted this theory in its verdict. secret. but the facts all the same permitted the jury to issue an award premised district court adequately discharged its duty to address this argument when it uniform trade secrets act on which the utah statute is modeled. what’s more, even acknowledging all this, however, still does nothing to help mr. kirby. storagecraft. mr. kirby may have acted for no personal gain save the the same utah’s trade secret statute holds him to account for the full value of the considerable burden of identifying the ones that are most pertinent in the are allowed for a misappropriator’s disclosure or use of a trade secret); sonoco kirby suggests. can’t disclosing a trade secret for a particular end or purpose (be judgment against mr. kirby for misappropriating storagecraft’s trade secret, computing, 504 f.2d at 535, 536-37; olson v. nieman’s, ltd., 579 n.w.2d 299, be difficult to administer in certain circumstances or might yield damages in motion for judgment as a matter of law. given that, it’s equally plain to us the keeping function is more flexible than that, requiring the court to focus its admission of storagecraft’s damages expert, but before this court he continues to less to do with the expert and his methodology than it does with mr. kirby’s view about the facts. as we’ve seen, a reasonable royalty award seeks to estimate the - 5 - - 9 - more complicated challenges demand lengthier discussions while less complicated computing offered its view of the common law’s requirements well before utah license to market prices paid for similar licenses. one court has claimed to 589 (1993); kumho tire co., ltd. v. carmichael, 526 u.s. 137, 147 (1999). never used the secret for his own personal profit. and too much because the expert used to calculate those costs. for example, the expert assumed neither does utah’s policy choice on this score come without its reasons. beyond even these problems lurks still another. to the extent university we’ve seen, the same description could easily be applied to our case — so even ambiguities about the appropriate quantity of damages against the proven misappropriation award is still too much. too much, mr. kirby says, because he expert’s methodology is at issue, it’s not good enough for the district court to that netjapan’s coincidentally timed product actually depended on its trade estimate and the jury reached its award. mr. kirby does not suggest before us imagine arguments that might lead reasonable lawmakers in that direction as well, company. true, after a falling out with his colleagues he stole the computer clerk of court having said all that, we don’t doubt the breadth of a trade secret license that takes us finally to mr. kirby’s challenge to storagecraft’s expert. § 6266 (1st ed. 1997 & supp. 2013). stress the expert’s qualifications. see, e.g., dodge v. cotter corp., 328 f.3d appeal from the united states district court to prove the amount of its actual losses or the misappropriator’s unjust gains. see record shows he did nothing much with the trade secret he stole, mr. kirby insists 215 f.3d 1083, 1088 (10th cir. 2000). this, mr. kirby says, the district court - 6 - misappropriation plaintiffs. after all, it is hardly unknown for the law to resolve the same reason, and arguing the district court erred by failing to give a jury governing mr. kirby’s case, expressly allows a reasonable royalty measure of hypothetical misappropriator who stole a trade secret and then disclosed it only to permitted to accept his invitation to substitute his alternative and self-serving royalty measure of damages in his case or more generally is so speculative that it profits elect instead to seek a ‘reasonable’ royalty that is far in excess both of 528 u.s. 440 (2000).2 royalty award to account for the scope of the license the defendant assumed for does nothing to help mr. kirby’s cause. for the district of utah before admitting expert testimony at trial, a district court must assure that it is instead, mr. kirby replies a good deal more modestly by directing our f.3d 1004, 1021 (10th cir. 2008). - 17 - obtain a “reasonable royalty” measure of damages — as storagecraft did in this can have a significant effect on price, just as mr. kirby suggests. no one doubts satisfaction of revenge. storagecraft may not have sought to prove to the jury error “if other competent evidence is ‘sufficiently strong’ to permit the conclusion (continued...) wish to line his pockets or satisfy a vendetta or for some other purpose still. all (...continued) district court doesn’t have to discuss in every case all of the reliability factors that company alleged that mr. kirby breached a promise to return the company’s in the first place, the line between use and disclosure is hardly as crisp as mr. damages when the misappropriator uses or discloses the trade secret. and no one source code on which the company’s products depend. true, he shared the source is readily apparent from the record that the expert testimony was admissible, it for personal riches, the other two measures of damages may not always be 775, 792 (10th cir. 2013), we must continue to treat kinser as binding. in fact, it statute tracks the uniform trade secrets act, which itself provides that co., 322 u.s. 471, 484 (1944); see also 35 u.s.c. § 112(a). because the crucial prods. co. v. johnson, 23 p.3d 1287, 1290 (colo. app. 2001) (same). judgment — perhaps like damages calculations in nearly every complex business characterization when . . . the patentee does not wish to grant a license”); mark a. very same secret. for this reason, it is surely important when setting a reasonable computing, 504 f.2d at 539. because some of these factors aren’t relevant to 2 i with confidence that it “properly applied the relevant law.” united states v. richard f. ensor of vantus law group, p.c., salt lake city, utah, for u.s. plywood-champion papers, inc., 446 f.2d 295 (2d cir. 1971), with univ. to enforce. he does not, for example, suggest that the use of the reasonable readily available from the defendant before the court but resides instead in the license for the trade secret he unlawfully assumed for himself. and in any neither does mr. kirby contest his liability for misappropriation (only the scope restricts the availability of “reasonable royalty” damages to cases in which the - 2 - himself, to aim at a price that reflects the particular “use of the trade secret made when setting a price, considerations ranging from the duration and scope of the particular circumstances at hand before attempting to assign each an appropriate others. to the contrary, the statute expressly provides that “[i]n lieu of damages james kirby, an individual, secret seriously compromised. that set of facts — that particular kind of use — to the expert’s development cost assumptions may well fall into this category. the utah statute calls the “actual loss” measure of damages doesn’t suffer from attention on the specific factors implicated by the circumstances at hand. see undercompensating the plaintiff when the defendant has no gains of his own to unreasonable as a matter of law. but those aren’t the facts of this case. instead, is precisely the basis on which storagecraft’s expert reached his damages 1 could have sought to take into account its development costs when negotiating a suggesting he is entitled to judgment as a matter of law because the record decisions also rely on a standard that predates the enactment of utah’s uniform publish information about another’s patented invention is generally not the injury (...continued) it has decided to admit the expert testimony after due consideration. instead, the to testify to a commonly used method of identification”); dodge, 328 f.3d at from patent law’s approach to reasonable royalty damages. see, e.g., univ. use apart from disclosure, it’s noteworthy that they tend to borrow generously exploitation by that rival, leaving the remaining financial value of the (former) thomas r. karrenberg (heather m. sneddon with him on the brief), of anderson failed to do. the trouble is utah law doesn’t distinguish between a misappropriator’s information about patented inventions is already a matter of public record, patent analyzed the language of utah’s trade secret statute and interpreted that language identify no fewer than fifteen factors that may enter into the mix when attempting surprising given basic differences between patents and trade secrets. sharing cases on reasonable royalties have had no cause to address unauthorized finds misappropriation in improper “disclosure or use of a trade secret,” utah 1089 (internal quotation mark omitted). either way, we will not demand a new “put the trade secret to some commercial use” before a reasonable royalty award n. okla. coll., 450 f.3d 1146, 1156-57 (10th cir. 2006). require proof of commercial use. plainly, though, this objection has a good deal kirby insists a court must ask, a license for what purpose? and because the trial tech., inc. v. keil, 48 p.3d 888, 894 (utah 2002), and because that statute clearly competitor he effectively assumes for himself an unrestricted license in the trade precise point at which a district court’s gate-keeping findings prove sufficient. pay a royalty reflecting that much, whether or not he or netjapan have to date that a trade secret holder and licensee might agree to one price for a highly verdict, mr. kirby also attacks its breach of contract verdict. but at this point exercise is to fix a price the parties would have agreed upon for a license, mr. his long since retired, seriously aged, and tight-lipped great-grandfather, someone require from the district court more than a brief reply, and mr. kirby’s objections secret.” utah code ann. § 13-24-4(1) (emphasis added). in this respect, utah’s - 11 - instruction requiring proof of commercial use. but however the argument is applying it. to decide this case it’s enough for this court to recognize and respect case — without proving the misappropriating defendant made commercial use of who could use the secret to the owner’s disadvantage. see id. at 542; see also - 12 - what he did with the secret — what uses he made of it. supp. 1116, 1120 (s.d.n.y. 1970), modified in part sub nom. ga.-pac. corp. v. that the improper evidence had no effect on the decision.” goebel, 215 f.3d at


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