At the same time, the court-appointed expert agreed with Dr. Luzzatto, the expert on behalf of the defendants, that anyone who works with a swab can intuitively advance his development by switching to working with a respirator: "I agree with Dr. Luzzatto that Dr. Luzzatto says that anyone who works with a swab, I will not switch to English, not to annoy, it is intuitive to switch to an owl. That's what Professor Luzzatto thinks..." (457, Q. 31; See also his testimony at p. 458, S. 6-7). Dr. Luzzatto denied that he had said this, but for our purposes the testimony of the court-appointed expert, who agreed that one who works with a swab is logical to try to work with a breathing apparatus as well.
It is also important to note that the expert noted in his opinion that the sensor is the "heart" of the plaintiffs' secret (paragraph 1.2.1 of the third opinion, on page 8; Paragraph 1.2.1. For the fourth opinion, on page 9). In other words, the breather and the integration of the chip into it are not the main invention.
- Still, the mere fact that the plaintiffs established the existence of the second trade secret does not establish, as such, that the defendants stole it, or made use of it as part of their invention.
Andhere at least two question marks arise. The first relates to the fact that there is no evidence before me that Prof. Seroussi was exposed to the plaintiffs' breathing structure before he filed the patent application on behalf of the defendants on March 29, 2020. The second relates to the material difference in the structure of the plaintiffs' breather compared to that of the defendants. These question marks, which were not allowed, undermine the ability to establish, in the circumstances of the case, the alleged theft of the second trade secret, at the level of the burden of persuasion imposed on the plaintiffs.
I will elaborate.
- Dr. Bressler noted in his third and fourth opinions (at paragraphs 4) that in the defendants' American patent application from 29.3.20, is also expressed in the theft of the second secret (breathe with the chip in it). Given this, it must be shown that the defendants were exposed to the plaintiffs' breathing design earlier. However, the evidentiary picture does not establish such exposure prior to this date. Here's how:
- a) There is no correspondence between the parties, as of March 29, 2020, relating to that person. In addition, Prof. Seroussi's exposure to the structure of the breather was not substantiated.
II) The earliest correspondence that mentions Yansham is a WhatsApp message from Prof. Seroussi to Mr. Ram dated March 31, 2020, after the patent was filed on behalf of the defendants.
III) Indeed, Mr. Ram claimed in his affidavit (at paragraph 80) that the plaintiffs had the first designs of the breather as early as March 24, 2020, which were also stored in the M. S. TIMS (hereinafter: TIMS), which were also presented to the defendants during conference calls that were carried out on this application, and he referred to Appendix D to his affidavit.
However, it is not possible to understand from the appendices of his affidavit what are the exact documents in which Prof. Seroussi was exposed when he entered the plaintiffs' system, with the password given to him. Only the dates it logs in, and file names are indicated there, but these names do not establish exposure to the breather's data.
- In addition, according to the plaintiffs in their summaries (at paragraph 84), the exact dates on which Prof. Seroussi entered the plaintiffs' servers are detailed in Appendices L, 30 and 2 to Mr. Ram's affidavit. However, this is only the exact dates when Prof. Seroussi entered the servers.
The only two documents that Mr. Ram mentioned in his affidavit that Prof. Seroussi saw in the servers are: a report by the plaintiffs regarding the "Hamburg results", after testing patients with the coronavirus in a hospital in Germany (Appendix 2 to Mr. Ram's affidavit, on pages 14-29 of this appendix); and the chip design document (Appendix 30 to Mr. Ram's affidavit, on pages 14-16 of this appendix), which was discussed at length above in relation to the third secret. However, the plaintiffs did not present proof that the defendants were exposed to their breathing before March 29, 2020.
- The plaintiffs focused their summaries (at paragraphs 45 and 97) on the documents to which Prof. Seroussi was exposed, but they also do not establish exposure to the breathing structure prior to March 29, 2020:
(1) Appendix 12 to the Pepper Opinion - This is an internal document dated April 4, 2020 that was presented to the defendants not before this date.