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For Certain Not Secret Now: Court Declines to Seal Alleged Trade Secret in Amended Complaint

by | Mar 24, 2021 |

The US Court of Appeals for the Federal Circuit affirmed a decision declining to seal information in an amended complaint where the defendant failed to prove that the information was a trade secret. DePuy Synthes Products, Inc. v. Veterinary Orthopedic Implants, Inc., Case No. 20-1514 (Fed. Cir. Mar. 12, 2021) (Dyk, J.)

After DePuy sued Veterinary Orthopedic Implants (VOI) for patent infringement, the district court issued a protective order providing that “supplier . . . names and identifying information” would be treated as “Highly Confidential Material—Attorney Eyes Only.” DePuy later filed an amended complaint containing such information when it joined VOI’s manufacturer as a defendant. The amended complaint disclosed the manufacturer as such and alleged additional facts about the defendants’ relationship. VOI argued that the manufacturer’s identity and additional facts about the VOI-manufacturer relationship should be sealed as trade secrets. DePuy argued that the manufacturer’s identity was already public, but took no position regarding the additional facts. After the district court declined to seal the amended complaint, VOI appealed.

The Federal Circuit first considered whether it had jurisdiction under the collateral order doctrine and whether the district court abused its discretion in denying the motion to seal.

The Federal Circuit found that it had jurisdiction under the collateral order doctrine because:

  • The district court’s order conclusively determined the sealing issue.
  • The sealing issue was important although unrelated to the merits of the infringement claim.
  • Meaningful review after final judgment would be impossible because disclosed information can never be secret again.

On the merits, the Federal Circuit found no abuse of discretion, reasoning that there was no clear error in the district court’s finding that the manufacturer’s identity was not a trade secret where (1) the manufacturer openly advertised itself as an orthopedic manufacturer, (2) the manufacturer and VOI did not have a confidentiality agreement or a confidential relationship giving rise to an implied obligation of confidentiality, and (3) a third-party email suggested that VOI’s relationship with the manufacturer was “known within the relevant community.” The Court further found no abuse of discretion in the district court’s declining to seal the additional allegations despite DePuy’s non-opposition because the district court was required to independently weigh the parties’ interest in confidentiality against the public right of access.

Practice Note: Parties routinely seek sealing of information that may not qualify as formal trade secrets. The district court’s duty to independently evaluate sealing means that parties must be prepared to articulate the particularized harm they will suffer absent sealing or risk the public disclosure of the information, even where the parties agree to treat information confidentially.



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$6 Million Verdict Vacated in Flooring Tech Trade Secrets Row

by | Feb 11, 2021 |

The US Court of Appeals for the 11th Circuit reversed a judgment of trade secret misappropriation because the plaintiff had not proved that the defendant’s duty to maintain the secret arose at the time it acquired the secret. AcryliCon USA, LLC v. Silikal GmbH, Case No. 17-15737 (11th Cir. Jan. 26, 2021) (Tjoflat, J.)

AcryliCon USA, LLC (AC-USA), AcryliCon International, Ltd. (AC-I) (collectively, AcryliCon), and Silikal are in the industrial flooring business. Hegstad is a chemical engineer who founded AC-I. In 1987, Hegstad invented, with Silikal’s help, a formula for a special industrial flooring material called 1061 SW. The formula belonged to Hegstad, and Silikal possessed the formula as the manufacturer of 1061 SW resin for Hegstad and AC-I. In 1997, AC-I and Silikal contractually established AC-I as the exclusive distributor of 1061 SW resin. In 2008, AC-USA was incorporated and entered into license agreements to obtain the right to import, market and sell 1061 SW (among other products) in the United States.

Thereafter, a dispute arose between AC-I and Silikal. The dispute was resolved by a 2010 global settlement agreement (GSA), which ended the prior agency relationship but provided (inter alia) that Silikal would preserve the secrecy of the formula and not sell 1061 SW resin to anyone but AcryliCon. The GSA also contained a forum selection provision stating that disputes arising from activities in the United States would be governed by Georgia law and waiving objections to personal jurisdiction in the Northern District of Georgia.

AC-USA sued Silikal in 2014 in the Northern District of Georgia, claiming that Silikal breached the GSA by manufacturing 1061 SW resin, selling it globally and taking credit for 1061 SW in its marketing. AC-USA’s complaint included several other causes of action, including misappropriation of trade secrets. Silikal moved to dismiss for lack of personal jurisdiction, contending that it had not sold 1061 SW to anyone other than AcryliCon in the United States. The district court denied the motion on evidence that such sales had occurred. AC-USA moved for partial summary judgment on its contract claim and sought a permanent injunction barring Silikal from producing or selling 1061 SW. The district court granted the motion and injunction because “previous counsel for Silikal admitted” that there had been sales of 1061 SW in violation of the GSA and Silikal did not dispute that there had been a breach of contract. After trial, the jury found for AC-USA, awarding $1.5 million on the misappropriation claim and $1.5 million on the contract claim. The district court added $3 million in punitive damages. Silikal moved for judgment as a matter of law (JMOL), arguing that the district court lacked personal jurisdiction, that AcryliCon had failed to prove misappropriation, and that AcryliCon had failed to prove cognizable damages on its contract claim. The district court denied the motion, awarded AC-USA attorneys’ fees and entered judgment for AC-USC. Silikal appealed.

The 11th Circuit held that Silikal waived its challenge to personal jurisdiction by appealing only the pre-trial jurisdiction ruling [...]

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US-China Agreement Supports International Injunction Against Alleged Chinese Counterfeiter Under State Law

by | Feb 4, 2021 |

Addressing for the first time whether state law has extraterritorial scope, the US Court of Appeals for the Sixth Circuit upheld a worldwide preliminary injunction against an alleged Chinese counterfeiter’s use of alleged trade secrets, citing a new US-China trade agreement. AtriCure, Inc. v. Meng, Case No. 20-3264 (6th Cir. Jan. 21, 2021) (McKeague, J.)

AtriCure is an Ohio company that sells surgical tools for the treatment of atrial fibrillation. AtriCure needed a Chinese agent to register and sell its product in China. Dr. Meng became AtriCure’s distributor in China from 2005 to 2017. After Meng signed multiple distribution agreements with AtriCure, including non-compete clauses and confidentiality agreements, he was given access to confidential technical documents describing AtriCure’s products. Unbeknownst to AtriCure, Meng was the president of AtriCure’s Chinese competitor, Med-Zenith. When Med-Zenith released a line of products that were strikingly similar to AtriCure’s in both form and operation, AtriCure sued for trade secret misappropriation under the Ohio Uniform Trade Secrets Act and sought a worldwide preliminary injunction to prevent Meng from continuing to manufacture and sell counterfeit versions of AtriCure’s medical devices. After the district court granted the preliminary injunction, Meng appealed.

Addressing Meng’s arguments on likelihood of success, the Sixth Circuit found that:

  • The district court defined the alleged trade secrets with sufficient specificity because AtriCure had given Meng detailed drawings and manufacturing specifications.
  • The district court had not clearly erred in relying on evidence that AtriCure provided the trade secret information to Meng or that Meng used the information where Med-Zenith had copied its entire product line from AtriCure.
  • The district court had not clearly erred in holding that the production of an adapter that did not copy but still took advantage of AtriCure’s proprietary algorithm (i.e., by allowing Med-Zenith accessories to be used with AtriCure’s system) was likely a misappropriation of trade secrets.

Addressing the extraterritorial aspect of a worldwide injunction, the Sixth Circuit held that the district court did not abuse its discretion in issuing a worldwide injunction because the international reach of the injunction comports with the equities of the case and does not offend international comity. As to the equities, the Court noted that worldwide injunctions are common in trade secret misappropriation cases. As to comity, the Court found that Meng had failed to articulate any conflict and cited a recently signed agreement between the United States and China that “emphasizes trade secret protection” (Economic and Trade Agreement Between the Government of the United States of America and the Government of the People’s Republic of China, Jan. 15, 2020).

Finally, the Court addressed whether the Ohio Uniform Trade Secrets Act itself was entitled to extraterritorial scope. Because Ohio courts had not yet addressed the question, the Court conducted its own statutory interpretation and found that the intent of the statute (“the lodestar of statutory interpretation in Ohio”) favored extraterritorial application “at least in this case.”



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How Not to Build a Case of Trade Secret Misappropriation

by | Jan 14, 2021 | ,

The US Court of Appeals for the Ninth Circuit affirmed a dismissal of trade secret claims, finding that although misappropriation of a trade secret prior to the enactment of the Defend Trade Secrets Act (DTSA) does not preclude a claim arising from post-enactment or continued use of the same trade secret, the publication of a trade secret in a patent application extinguishes trade secret status. Eli Attia; Eli Attia Architect PC v. Google LLC, et al., Case No. 19-15771 (9th Cir. Dec. 16, 2020) (Wallace, J.)

Eli Attia is an architect who developed a system and method for automated design, fabrication and construction, called Engineered Architecture (EA). In 2010, Attia entered into a partnership with Google. Attia disclosed his trade secrets related to the technology to Google so that they could work together to develop a program that would implement EA. Attia executed patent assignments with Google, and a year later Google filed patent applications related to the EA trade secrets. The patents were published in 2012. Google then allegedly excluded Attia from the project and used EA to create Flux, a platform used by architects, engineers and construction workers, focused on making buildings more efficient and using artificial intelligence to streamline the design process.

In 2014, Attia sued Google under state law for trade secret misappropriation and breach of contract. In 2016, Congress enacted the DTSA. Since its inception, DTSA has been an enumerated predicate for the civil Racketeer Influenced and Corrupt Organizations Act (RICO), which means that plaintiffs can bring lawsuits claiming a conspiracy when theft of trade secrets is an underlying claim. Attia amended his complaint to add RICO claims based on Google’s alleged trade secret misappropriation. Google removed the action to federal court and moved to dismiss. Attia filed another amended complaint, this time asserting a new DTSA claim and two RICO claims.

The district court dismissed Attia’s federal claims with prejudice and declined to exercise supplemental jurisdiction over the state law claims. The district court found that the alleged trade secrets were already disclosed in Google’s 2012 published patent applications, and those publications extinguished the relevant trade secrets. The court held that Attia lacked standing to assert DTSA or RICO claims, and neither estoppel nor continued use could convert the 2012 publications into a DTSA violation. Attia appealed.

On appeal, the Ninth Circuit noted that the issue was one of first impression before the Court, and set out to determine whether, as a matter of law, the pre-enactment disclosure of a trade secret forecloses the possibility of a DTSA claim arising from the continued use of the trade secret after enactment. The Uniform Trade Secrets Act (UTSA), the established model statute for trade secret misappropriation that has been adopted by the majority of the states, contains an anti-continued use provision, the Court noted. The UTSA states that “ a continuing misappropriation that began prior to the effective date,”… “does not apply to the continuing misappropriation that occurs after the effective date.” The DTSA does not [...]

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Defend Trade Secrets Act Supports Sealing Information on Appeal

by | Jan 7, 2021 | ,

Addressing whether purported trade secret information ought to remain under seal on appeal, the US Court of Appeals for the Sixth Circuit ruled in a one-judge order that the Defend Trade Secrets Act (DTSA) provided a statutory basis that overcame the presumption of public access. Magnesium Machine, LLC v. Terves, LLC, Case No. 20-3779 (6th Cir. Dec. 10, 2020) (McKeague, J.)

This case presented the issue of what part of a record may be sealed on appeal—normally a routine question—in litigation that was anything but routine. According to the verified complaint, Magnesium Machine discovered a particular salt-based treatment for use on oil and gas tools. According to Magnesium, in the course of litigating a patent infringement suit against one of Magnesium’s suppliers, Terves and its counsel, McDonald Hopkins, obtained information reflective of Magnesium’s alleged trade secret from a third party pursuant to subpoena. Specifically, Magnesium claimed that particular language in a settlement agreement disclosed Magnesium’s trade secrets. The settlement agreement had been produced by the third party without any confidentiality designation. The complaint alleged violations of the federal DTSA and Oklahoma and Ohio state trade secrets acts.

Invoking the seizure provisions of the DTSA, Magnesium sought and obtained an ex parte order directing the US Marshals to seize Terves’s electronic equipment, including devices at Terves’ president’s home. That order did not last long. Following an evidentiary hearing (in which Terves participated) the day after the order was issued, the district court vacated the seizure order because Magnesium had not demonstrated misappropriation of a trade secret.

To appeal, Magnesium requested express findings of fact and conclusions of law. The district court explained that Terves and its lawyers subpoenaed materials in good faith, that the settlement agreement was produced without restriction (such as a confidentiality marking), that Terves’s lawyers did not impermissibly share the settlement agreement with Terves employees and that upon objection by Magnesium, Terves deleted its copies of the settlement agreement. Thereafter, on motions to dismiss, the district court concluded that Magnesium failed to allege misappropriation and that the litigation privilege protected Terves’ counsel.

Terves sought and obtained attorneys’ fees against Magnesium and its counsel for proceeding in bad faith. The district court found that Magnesium had every reason to know that its claims were baseless, because it was “well aware at the time the suit was filed that Defendants had received the allegedly secret information through legitimate discovery means and that it was provided to them without description.” Moreover, claiming that a three-word phrase in the settlement agreement purportedly disclosed trade secret information was “an intentional exaggeration/misrepresentation.” Indeed, other public statements had provided far more detail than the purportedly secret phrase, according to the district court.

On appeal, although Terves contended that the purported trade secret did not qualify as a secret, in the exercise of caution and on Magnesium’s request, Terves nonetheless sought to file a brief under seal. Judge David McKeague, acting on behalf of the Sixth Circuit, agreed that it was appropriate to seal the information, [...]

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Amended Opinion Hedges Constitutionality of Punitive Damages Award

by | Dec 10, 2020 |

The US Court of Appeals for the Seventh Circuit amended its August 2020 opinion in Epic Systems v. Tata Consultancy to clarify that its analysis of punitive damages applies only to this particular case. Epic Systems Corp. v. Tata Consultancy Services Ltd., Case Nos. 19-1528, -1613 (7th Cir. Nov. 19, 2020) (Kanne, J.)

In the district court action, the jury found that Tata Consultancy Services Ltd. (TCS) used fraudulent means to access and steal Epic System’s trade secrets and other confidential information, and awarded $240 million in compensatory damages and $700 million in punitive damages. The district court reduced the compensatory damage award to $140 million and reduced the punitive damages award to $280 million based on a Wisconsin statutory cap on punitive damages. Both sides appealed.

On appeal, TCS contested the award of $280 million in punitive damages for various reasons, including that the award was not in line with the due process clause of the 14th Amendment. In its amended opinion, the Seventh Circuit clarified that “the Constitution is not the most relevant limit to a federal court when assessing punitive damages, as it comes into play only after the assessment has been tested against statutory and common law principles. . . . Indeed, a federal court can and should reduce a punitive damages award sometime before it reaches the outermost limits of due process.”

The Seventh Circuit analyzed the three “guideposts” for determining whether there is a due process violation with respect to punitive damages awards:

  • The reprehensibility of the defendant’s conduct
  • The disparity between the actual harm suffered and the punitive award
  • The difference between the award authorized by the jury and the penalties imposed in comparable cases.

The Court’s analysis of the first guidepost remained relatively unchanged from its original opinion, in which the Court found that a punitive damages award was justified.

The Seventh Circuit deviated from its original opinion in its analysis of the second and third guideposts. The Court found that determining the harm in the second guidepost was somewhat more difficult, because the $140 million compensatory award was based on benefit to TCS, not harm to Epic. However, the Court noted that in such instances, “few awards exceeding a single-digit ratio between punitive damages and compensatory damages will satisfy due process.” In its original opinion, the Court concluded that “a 2:1 ratio exceeds the outermost limit of the due process guarantee.” As amended, however, the Court softened this language and clarified that the 2:1 ratio exceeds only the outermost limit “in this case.” The Court explained that although TCS’s conduct was reprehensible, it was not egregious. The Court similarly concluded that the third guidepost warranted a 1:1 ratio of punitive to compensatory damages. Here again, while the Court’s original opinion applied to the “federal constitution,” the amended opinion reduced the scope of the holding to “this case” only.

Practice Note: While the Seventh Circuit originally seemed to indicate that any punitive damages award that exceeds a compensatory award [...]

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A Clear Need: To Allege Misappropriation, Identify Trade Secret

by | Oct 29, 2020 |

The US Court of Appeals for the Ninth Circuit reversed a district court’s grant of summary judgment, finding that the plaintiff had sufficiently pled trade secret misappropriation by identifying its trade secrets and how they were protected with sufficient particularity. InteliClear, LLC v. ETC Global Holdings, Inc., Case No. 19-55862 (9th Cir. Oct. 15, 2020) (Gould, J.).

In 2004, InteliClear began development on a comprehensive electronic system for managing stock brokerage firm accounting, securities clearance and securities settlement services using a Structured Query Language relational database designed to handle millions of trades each business day. It named the program the “InteliClear System.”

In 2008, ETC’s predecessor signed a software license agreement with InteliClear and obtained a license for the InteliClear System. The license agreement acknowledged that all information InteliClear provided was confidential, proprietary and copyrighted, and ETC agreed to maintain that information in confidence “during and after” the terms of the agreement.

In 2017, InteliClear sent ETC a notice terminating the license agreement. ETC committed to remove the InteliClear database from its systems by February 26, 2018. On March 5, 2018, ETC certified that the InteliClear System had been removed from all ETC servers and that all copies had been destroyed. But, before the license agreement ended, ETC had already begun building its own securities clearance software. Around the same time that InteliClear terminated the license agreement, ETC launched its own electronic trading system. InteliClear immediately contacted ETC about its suspicion that ETC had improperly used the InteliClear System to build its own system, and, after months of negotiations, ETC agreed to allow a computer forensics company to compare the two systems and investigate. The forensics company found an abundance of evidence that the elements of each system were identical.

InteliClear sued ETC for trade secret misappropriation under federal and state law and for unfair competition. The district court dismissed the claim for unfair competition, reasoning that it was preempted by the California Uniform Trade Secrets Act. One day into discovery, and before any discovery had been requested or provided, ETC moved for summary judgment, asserting that InteliClear failed to identify its trade secrets with sufficient particularity and that InteliClear did not show that the InteliClear System was a trade secret or that ETC had access to InteliClear’s source code. The district court granted ETC’s motion and denied InteliClear’s motion to defer ruling until after completion of discovery under Rule 56(d). InteliClear appealed.

The Ninth Circuit analyzed the federal and state trade secret misappropriation claims together because the elements were substantially similar. The Court noted that to succeed on a claim for misappropriation, a plaintiff must prove (1) that the plaintiff possessed trade secrets, (2) that the defendant misappropriated the trade secrets, and (3) that the misappropriation caused or threatened damage to the plaintiff. To prove the first element, “a plaintiff must identify the trade secrets and carry the burden of showing they exist.” The Court pointed out that it is important to identify trade secrets with sufficient particularity because [...]

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Texas Appellate Court Clarifies Scope of Remand

by | Sep 9, 2020 |

The Texas Fourth Court of Appeals found that a new trial on misappropriation and fraud claims must include a non-appealed breach of contract claim arising from the same set of facts. Title Source, Inc. v. HouseCanary, Inc., Case No. 04-19-00044-CV (Tex. App. – San Antonio Aug. 26, 2020) (Watkins, J.).

On June 3, 2020, the Texas Fourth Court of Appeals issued an opinion remanding HouseCanary’s Texas Uniform Trade Secrets Act and common-law fraud claims for a new trial because the jury instructions permitted the jury to consider both permissible and impermissible theories of recovery. (IP Update, June 18, 2020). Acting on Title Source’s motion for rehearing, the Court issued a substitute opinion with additional language clarifying the scope of the remand and making clear that HouseCanary may elect to recover on its non-appealed breach of contract claim and forego recovery (along with the new trial) on its misappropriation and fraud claims. To the extent HouseCanary sought to recover on its misappropriation and fraud claims, however, the Court held that the breach of contract claim must also be within the scope of the new trial because it arises from the same facts, and failing to include it would therefore create a risk of inconsistent verdicts.



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Epic Punitive Damages Award Violates Due Process

by | Sep 3, 2020 |

Addressing the appropriateness of three separate damages awards totaling $520 million, the US Court of Appeals for the Seventh Circuit affirmed the lower court’s award of $140 million in compensatory damages, but found that $280 million in punitive damages does not meet the Due Process Clause of the Fourteenth Amendment. Epic Systems Corp. v. Tata Consultancy Services Ltd., Case Nos. 19-1528, 19-1613 (Aug. 20, 2020) (Kanne, J.).

Epic Systems is a leading developer of electronic health record software, which it licenses to top hospitals in the United States. Each customer-licensed module is specific to the customer’s needs and can be customized to ensure proper integration with the customer’s systems. In order to facilitate customization and updates to the software, Epic provides a web portal called “UserWeb,” which provides access to various resources including administrative guides, training materials, software updates and forums. UserWeb also contains confidential information about the health-record software itself, and as such, Epic restricts access to the UserWeb portal via credentialed logins. Those with access are also required to keep all UserWeb information confidential.

In 2003, Kaiser Permanente—the largest managed healthcare organization in the United States—obtained a license to use Epic’s software. Due to the size and complexity of integrating and maintaining the software, Kaiser hired Tata Consultancy Services (TCS) to help with updates and integration. TCS has its own electronic health record software, Med Mantra, which was known to Epic. Accordingly, Kaiser imposed numerous rules for TCS to follow in order to maintain the confidentiality of Epic’s software. TCS employees claimed that they could perform their required tasks faster if they had full access to UserWeb, which Kaiser repeatedly asked Epic to grant to TCS. Epic repeatedly declined this request.

Undeterred, TCS was able to find another way into Epic’s UserWeb. TCS hired an employee who had full access to UserWeb, which he gained from working for a different organization that also helped manage Kaiser’s integration of Epic’s software. While in his previous position, the employee had falsely claimed to be a Kaiser employee, thus allowing him full access to UserWeb. The employee shared these credentials with numerous TCS employees, who then had unfettered access to UserWeb, which contained confidential information relating to Epic’s healthcare software.

TCS used this information to generate a “comparative analysis” document, an 11-page spreadsheet that compares TCS’s software, Med Mantra, to Epic’s software. TCS wanted to sell Med Mantra directly to Kaiser, and the first step was to be sure that “key gaps” in the Med Mantra software were addressed before the attempted sale. After viewing a presentation that included the comparative analysis document, one TCS employee alerted Kaiser and Epic to the existence of the document and the fact that TCS had gained access to UserWeb.

A few months later, Epic filed suit against TCS, alleging that TCS used fraudulent means to access and steal Epic’s trade secrets and other confidential information. After a trial, the jury returned a verdict in favor of Epic on all claims. During the damages trial, [...]

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Attorney’s Fees Properly Awarded in Unsuccessful Trade Secret Misappropriation and Civil Theft Suit

by | Aug 26, 2020 |

The US Court of Appeals for the Fifth Circuit affirmed a take-nothing judgment and an attorney’s fees award against plaintiffs in a trade secret misappropriation and civil theft suit under Texas law, finding that the fee award did not need to be segregated to various claims. ATOM Instrument Corp. v. Petroleum Analyzer Co., L.P., Case Nos. 19-29151, -20371 (5th Cir. Aug. 7, 2020) (Southwick, J.). The Court also remanded for an additional award of appellate attorney’s fees.

Olstowski was a consultant for Petroleum Analyzer Co., L.P. (PAC), during which time he developed a krypton-chloride-based excimer lamp to detect sulfur with ultraviolet fluorescence. Although he developed the lamp independently, he used PAC resources to test the technology.  Olstowski and PAC negotiated but failed to agree on licensing. Olstowski founded ATOM Instrument to assist him in the licensing discussions. Subsequently, PAC filed a declaratory judgment action in Texas court alleging that it owned the lamp technology. The state court ordered the claim to arbitration. The arbitration panel declared Olstowski the owner of the technology and enjoined PAC from using it. The state court confirmed the arbitral award, and a Texas appellate court upheld the confirmation order.

PAC thereafter developed a new sulfur-detecting excimer lamp called MultiTek that also used krypton-chloride with UV fluorescence. Olstowski and ATOM filed in state court for contempt of the injunction, but the state court denied the contempt motion as moot because PAC had ceased selling MultiTek.

ATOM filed for bankruptcy the following year. Olstowski and ATOM initiated a district court proceeding against PAC alleging misappropriation of trade secrets, unfair competition and civil theft. After holding a bench trial, the court found that MultiTek did not practice Olstowski’s technology and therefore entered a take-nothing judgment in favor of PAC. The district court also awarded attorney’s fees to PAC under a provision of the Texas Theft Liability Act (TTLA) that awards fees to prevailing parties. Olstowski and ATOM appealed both issues, and PAC sought an award of its appellate attorney’s fees.

As to liability, ATOM argued that the district court erred in finding that the MultiTek lamp did not practice Olstowski’s technology. ATOM characterized the error as a legal one regarding interpretation of the arbitral award, but the Fifth Circuit held that “whether one company used another’s protected technology” is a factual question for which Olstowski and ATOM had failed to carry the burden of proof at trial. ATOM further argued that the district court had ignored the alleged law of the case in deviating from the scope of technology defined in the arbitral award, but the Court again rejected ATOM’s argument because the district court had explicitly stated that the description of Olstowski’s technology in the arbitral award remained in effect.

As to the award of attorney’s fees, ATOM argued that the district court had not appropriately segregated fees related to the TTLA claim from those related to other claims. Applying Texas law, the Fifth Circuit affirmed that the TTLA claim was sufficiently related to the other claims [...]

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