In the fourth opinion, it was stated in its title that it was an "addition" to the third opinion, and the third opinion constitutes a continuation of the expert's work in the second opinion, since in the third opinion he examined whether the defendants actually used the plaintiffs' trade secrets. Thus, the second opinion can be used in order to understand the similarities between the parties' chips, and the argument that the court-appointed expert did not address this should be rejected.
Moreover, the expert also explicitly stated in his fourth opinion (Appendix B, paragraph 6, page 43) that Prof. Seroussi used the chip integrated with the plaintiffs' sensor as is, "first in a simple THz antenna of the 'Park' type and then in a bipolar antenna of the same type X (the same dimensions, the same GAP, the same P[ru]portation, which the plaintiffs investigated in intensive, deep, broad and expensive R&D). All this for the rapid discovery of the cold virus, a technology that bears a substantial resemblance to information that constitutes a trade secret of the plaintiffs..."
69. The defendants could have presented an opinion on their behalf in order to establish the difference between their venture and the plaintiffs' venture, but they did not do so. A review of the four opinions submitted by the expert on their behalf, Dr. Luzzatto, shows that he did not make a comparison between the projects. He confessed in his interrogation (279, Q. 10-16; and 280, s. 32-31; 281, S. 2-10) that he did not make a comparison because he was not asked to make it, and therefore there is no reference to this in his opinion.
- In an attempt to refute the emerging picture, the defendants argued that there was no reason to make use of the theory of equivalents, which the expert mentioned in his opinion. According to them, this does not apply when it comes to trade secrets.
I cannot accept this argument.
First, the defendants did not refer to any reference in support of this claim. Second, in any case, Section 9 of the Commercial Torts Law, entitled "Substantial Similarity", establishes a principle similar to this doctrine, andthis is the provision of the law:
- Substantial Similarity
The use of a trade secret will also be considered a use of a secret in which changes have been made, provided that there is a substantial similarity between the trade secret and the information used [emphasis added].