The expert further admitted in his interrogation that the theft of the first and fourth secrets had not been proven (see the matter of the first secret at p. 419, S. 18-1; 504, S. 21-17; Regarding the Fourth Secret: 419, s. 19-28; and in the matter of both the first and fourth secrets: 420, s. 1-6). Thus, regarding the fourth secret, Dr. Bressler confirmed the understanding of Adv. Liraz, counsel for the defendants, that "there is no determination that the defendants made any use of the secret called the resonance frequency of the virus" (p. 419, S.1).
- In their summaries (paragraphs 25-41), the plaintiffs refer to the expert's first opinion with respect to the first secret, but do not deal with his determination in the last opinion, according to which the theft of the first secret was not established. Even with regard to the fourth secret, the plaintiffs note in their summaries (paragraphs 65-69) the expert's determination in his first opinion, but do not refer to his concluding determination that his theft was not substantiated. The reference to the position of the expert on their behalf, Dr. Pfeffer, is not enough. The plaintiffs should have addressed the court's current position in a sharp and clear manner, and explained why it should not be adopted. They did not do so, and therefore his analysis was not hidden.
- It remains to discuss the second and third secrets and the question of whether they were stolen and used. Here the question arises as to whether the defendants have met the burden of showing that this is a case that justifies a deviation from the court's expert opinion. The main part of the discussion will be devoted to the third secret, in light of the expert's determination that the plaintiffs' main invention lies in it.
55. I will preface the beginning by noting that after considering the arguments of the parties, I have reached the conclusion that the defendants have not been able to undermine the expert opinion of the court in relation to the third secret, and hence the theft of this secret has been established. As for the second secret, the evidence before me cannot serve as a basis for determining that it was stolen.
As far as the third secret is concerned, the presumption of use in our case is clear. The totality of the objective circumstances works to Prof. Seroussi's detriment and with intensity. His answer was not convincing. No evidence was established that could justify an independent disclosure in a manner that did not make use of the plaintiffs' trade secret. I did not find any substance in his claims regarding the expansion of the front or the violation of his procedural rights.