I cannot accept this argument.
The main analysis of the expert is not found in the question of the different design (see above in paragraph 66). The main thing lies in the essence of the activity of the chip itself, with the technology it reflects. Here a substantial similarity is established between the plaintiffs' open and that of the defendants. The defendants did not contradict it, even though they had every opportunity to do so. We should recall that for the purpose of liability by virtue of the trade secrets law, a substantial similarity is sufficient, and there is no need to establish an identity (see above in paragraph 70 and section 9 of the Law). The defendants' argument rests on the identity of the developments, but this is not required in order to establish their liability. Thus, for example, in accordance with the general law with respect to trade secrets, "making changes in the product used by the defendant is not beneficial to him in order to evade liability, if the 'substance' originates from the plaintiff's secret" (Deutsch at p. 686).
- In addition, in the latest amended statement of claim, it was noted (in paragraph 25.c.) that the third secret that was stolen was the structure of the chip inside the respirator, which was intended to identify the coronavirus in a sample produced by breathing or in a swab (swab). This is a general language that allows reference to the configuration of theX. The expert and the plaintiffs addressed the question of why the matter arose only at a more advanced stage, since it took time for the court-appointed expert to be exposed to the evidentiary material in this matter. Their explanations are satisfactory. In any event, the defendants were given the opportunity to deal with this matter, but they were unable to overcome the extensive factual basis that was presented, And that works against them.
Finally, with regard to the use of circumstantial evidence, there is nothing wrong. It is clear that this evidence can be used to strengthen or refute the presumption of use. The fact that the expert needed them is not invalid at all.