Case: 21-2146 Document: 57 Page: 1 Filed: 01/24/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MASIMO CORPORATION, CERCACOR
LABORATORIES, INC.,
Plaintiffs-Appellees
v.
TRUE WEARABLES, INC., MARCELO LAMEGO,
Defendants-Appellants
______________________
2021-2146
______________________
Appeal from the United States District Court for the
Central District of California in No. 8:18-cv-02001-JVS-
JDE, Judge James V. Selna.
______________________
Decided: January 24, 2022
______________________
JOSEPH R. RE, Knobbe, Martens, Olson & Bear, LLP,
Irvine, CA, argued for plaintiffs-appellees. Also repre-
sented by BRIAN CHRISTOPHER CLAASSEN, STEPHEN C.
JENSEN, IRFAN A. LATEEF, PERRY D. OLDHAM; MARK D.
KACHNER, Los Angeles, CA; WILLIAM R. ZIMMERMAN,
Washington, DC.
RACHEL ZIMMERMAN SCOBIE, Merchant & Gould P.C.,
Minneapolis, MN, argued for defendants-appellants. Also
Case: 21-2146 Document: 57 Page: 2 Filed: 01/24/2022
2 MASIMO CORPORATION v. TRUE WEARABLES, INC.
represented by MICHAEL A. ERBELE, PAIGE STRADLEY; RYAN
JAMES FLETCHER, Denver, CO; PETER GERGELY, New York,
NY.
______________________
Before MOORE, Chief Judge, BRYSON and DYK, Circuit
Judges.
BRYSON, Circuit Judge.
Appellees Masimo Corporation and Cercacor Laborato-
ries, Inc. (collectively, “Masimo”) filed suit against appel-
lants True Wearables, Inc., (“TW”) and Dr. Marcelo
Lamego alleging breach of contract, misappropriation of
trade secrets under California and federal law, breach of
fiduciary duty, and patent infringement. Masimo filed a
motion for a preliminary injunction on its trade secret
claims, and the district court granted the motion. We af-
firm.
I
The alleged trade secret in this case, known as the
“TSS,” relates to an algorithm used to solve optimization
problems. Masimo uses this algorithm in devices that
make determinations of various physiological values, in-
cluding the concentration of total hemoglobin, a measure-
ment known as “SpHb.” J.A. 110–111. To estimate a
patient’s SpHb level, a device emits different wavelengths
of light from LEDs into the patient’s fingertip and then
measures how much light has been absorbed when the
light emerges from the other side of the fingertip. J.A. 404.
The measurements are then inserted into an equation hav-
ing the form of “SpHb = Ax + By + Cz . . .,” where x, y, and
z are absorption measurements and A, B, and C are coeffi-
cients. Appellant’s Br. 9. The coefficients are determined
by optimizing the SpHb equation to fit the results of blood
tests conducted during a clinical trial. Id. Because the
SpHb equation may include up to 257 coefficients, the op-
timization cannot reasonably be done by hand, and thus a
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MASIMO CORPORATION v. TRUE WEARABLES, INC. 3
computer algorithm is needed to determine the appropriate
coefficients. J.A. 408–410. The TSS is Masimo’s imple-
mentation of such an algorithm.
Dr. Lamego is a former Cercacor employee who devel-
oped the TSS while working at Cercacor. As part of his
work, Dr. Lamego developed an internal presentation that
disclosed two different variations of the TSS. J.A. 413–425;
Appellant’s Br. 11. After leaving Cercacor, Dr. Lamego
worked briefly for another employer before founding TW.
J.A. 122. At TW, he developed the “Oxxiom device,” a pulse
oximeter. J.A. 1378. TW attempted to protect some as-
pects of that device by filing patent applications.
On January 11, 2021, the U.S. Patent and Trademark
Office (“PTO”) issued a Notice of Allowance for one of TW’s
patent applications, U.S. Patent Application No.
16/198,335 (“the ’335 Application”). J.A. 1063. The ’335
Application claimed priority to an earlier provisional appli-
cation, U.S. Provisional Patent Application No. 62/591,158
(“the ’158 Application”). J.A. 1018. According to Masimo,
the ’158 Application contains one of the variations of the
TSS that Dr. Lamego developed while at Cercacor. Upon
learning that the PTO had issued a Notice of Allowance for
the ’335 Application, Masimo moved for a preliminary in-
junction on its trade secret claims to prevent the ’158 Ap-
plication from becoming public, which would occur if the
’335 Application were allowed to issue as a patent.
The district court evaluated Masimo’s motion using the
so-called Winter factors for determining whether to issue a
preliminary injunction. See Winter v. Nat. Res. Def. Coun-
cil, Inc.,
555 U.S. 7, 20 (2008). Under the Winter factors, a
plaintiff must show that (1) it is likely to succeed on the
merits, (2) it is likely to suffer irreparable harm, (3) the
balance of equities favors the plaintiff, and (4) the injunc-
tion is in the public interest.
Id. In the Ninth Circuit, a
court may enter a preliminary injunction “if the moving
party demonstrates either a combination of probable
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4 MASIMO CORPORATION v. TRUE WEARABLES, INC.
success on the merits and the possibility of irreparable in-
jury or that serious questions are raised and the balance of
hardships tips sharply in his favor.” Johnson v. California
State Bd. of Acct.,
72 F.3d 1427, 1430 (9th Cir. 1995) (inter-
nal quotations, citation, and emphasis omitted).
Regarding the Winter factors, the district court first
found that Masimo was likely to succeed on the merits of
its trade secret claim because the TSS was not generally
known and Masimo was likely to show that Dr. Lamego
misappropriated the TSS. J.A. 10–16. The court next
found that the risk of irreparable harm and the balance of
the equities weighed in favor of a preliminary injunction.
J.A. 16–17. Finally, the court found that issuance of a pre-
liminary injunction was in the public interest. J.A. 18. Af-
ter finding that each of the Winter factors favored a
preliminary injunction, the district court granted Masimo’s
motion. TW then filed a motion for reconsideration, which
the district court denied. This appeal followed.
II
On appeal, TW raises three principal arguments.
First, it argues that the district court erred in determining
that Masimo was likely to establish that the TSS was a
trade secret. More specifically, TW argues that the district
court erred in finding that Masimo was likely to show that
the TSS derives economic value from not being publicly
known, and in denying TW’s motion for reconsideration,
which was addressed to that issue. Second, TW argues
that the district court erred in determining that Masimo
was likely to establish that Dr. Lamego misappropriated
Masimo’s trade secret. Third, TW argues that the district
court erred in its balancing of the equities.
A
In contending that Masimo is unlikely to succeed in es-
tablishing that the TSS is a trade secret, TW argues that it
presented evidence that the TSS was generally known, and
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MASIMO CORPORATION v. TRUE WEARABLES, INC. 5
that the district court failed to properly consider that evi-
dence. The existence of a trade secret, including whether
the information at issue is generally known, is a question
of fact that we review for clear error. Olaplex, Inc. v.
L’Oréal USA, Inc., 855 F. App’x. 701, 706 (Fed. Cir. 2021);
Walczak v. EPL Prolong, Inc.,
198 F.3d 725, 730 (9th Cir.
1999).
The district court’s analysis focused primarily on the
definition of a trade secret under the California Uniform
Trade Secrets Act (“CUTSA”). See J.A. 12–14. Under the
CUTSA, information is eligible for trade secret protection
if it (1) “[d]erives independent economic value, actual or po-
tential, from not being generally known to the public or to
other persons who can obtain economic value from its dis-
closure or use,” and (2) “[i]s the subject of efforts that are
reasonable under the circumstances to maintain its se-
crecy.”
Cal. Civ. Code § 3426.1(d).
TW argues that Masimo did not meet its burden to es-
tablish that the TSS is not “generally known” to “persons
who can obtain economic value from its disclosure or use.”
See
id. In TW’s view, the only evidence Masimo presented
that the TSS is not generally known is the testimony of a
single Masimo employee, Jesse Chen, who stated that he
was “not aware of any publications that include the deriva-
tions found in the [TSS] or describe an implementation of
the [TSS].” J.A. 411; Appellant’s Br. 41. That characteri-
zation ignores several pieces of evidence presented by
Masimo that are relevant to whether the TSS is generally
known.
First, Masimo pointed to evidence that Dr. Lamego pro-
tected the TSS as a trade secret while working at Cercacor.
J.A. 807–820, including an email from Dr. Lamego to an-
other employee describing TSS as “not known in the liter-
ature and . . . a trade secret,” J.A. 809. Additionally, after
founding TW, Dr. Lamego labeled a notebook including
TSS and related material as containing trade secrets. J.A.
Case: 21-2146 Document: 57 Page: 6 Filed: 01/24/2022
6 MASIMO CORPORATION v. TRUE WEARABLES, INC.
823–828. Moreover, and of particular note, Dr. Lamego ar-
gued to the PTO that the TSS was not “common
knowledge.” J.A. 1095–1096. Under the CUTSA, evidence
of how the owner of an alleged trade secret and the alleged
misappropriator treat that information is relevant to
whether the information is generally known. See Altavion,
Inc. v. Konica Minolta Sys. Lab’y, Inc.,
226 Cal. App. 4th
26, 63 (Ct. App. 2014) (considering evidence such as plain-
tiff’s “documents extolling the novelty” of the information
along with defendant’s attempts to patent the infor-
mation).
Despite Masimo’s showing, TW argues that its evi-
dence compels a finding that the TSS was generally known
to those who can obtain economic value from its disclosure.
Specifically, TW points to an IEEE conference paper that
disclosed an algorithm equivalent to the TSS and that has
been cited over 1,200 times. J.A. 3118. In addition to its
arguments based on the IEEE conference paper, TW points
to testimony from its expert, Thomas Goldstein, stating
that variants of the TSS have appeared in statistics text-
books since the early 1960s. J.A. 3107–3108. In his decla-
ration, Dr. Goldstein noted that an algorithm equivalent to
the TSS was “widely known and widely used by the statis-
tics community prior to [the TSS’s] alleged appearance in
the ’158 Application.” J.A. 3103.
The district court was not persuaded by the evidence
relating to the IEEE publication. The court noted that
while the publication in question was “not obscure,” the ex-
istence of the publication did “not mean that the particular
techniques described in them were ‘generally known’ to
people who could obtain economic value from developing
noninvasive blood content detectors.” J.A. 12. “At best,”
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MASIMO CORPORATION v. TRUE WEARABLES, INC. 7
the court added, “the articles could be a basis for determin-
ing that the TSS was ‘readily ascertainable.’” 1
Id.
TW argues that the district court’s statement “improp-
erly deemed evidence of publication of the alleged trade se-
cret irrelevant as a matter of law to whether it is ‘generally
known’ under the CUTSA.” Appellant’s Br. 36. In our
view, that mischaracterizes the district court’s opinion.
The district court simply found that the evidence regarding
the IEEE publication did not conclusively show that the
TSS was generally known among those who could obtain
economic value from its disclosure. The court acknowl-
edged that the evidence regarding the publication could be
relevant to whether the TSS was readily ascertainable.
The court then explained that TW could not avail itself of
a defense based on ready ascertainability because it failed
to show that Dr. Lamego obtained his knowledge of the TSS
based on the IEEE publication and independently of his
prior knowledge of Masimo’s trade secret. We see no legal
error in that aspect of the district court’s analysis.
Citing several cases, TW argues that “display in a sin-
gle publication of an alleged trade secret in its entirety is
1 Under the CUTSA, the Ninth Circuit has ex-
plained, ready ascertainability is a defense to a claim of
misappropriation of trade secrets, but the defense is avail-
able only if the defendant can establish that the alleged
trade secret was obtained from sources that made the in-
formation ascertainable. Imax Corp. v. Cinema Techs.,
Inc.,
152 F.3d 1161, 1168 n.10 (9th Cir. 1998). Based on a
California pattern jury instruction, TW argues that the
Ninth Circuit has misstated the rule in California. See Ju-
dicial Council of Cal. Civ. Jury Instructions No. 4420
(2021). In the absence of a controlling California court de-
cision to the contrary, it was appropriate for the district
court to follow the Ninth Circuit’s interpretation of the Cal-
ifornia statute.
Case: 21-2146 Document: 57 Page: 8 Filed: 01/24/2022
8 MASIMO CORPORATION v. TRUE WEARABLES, INC.
conclusive evidence that it is generally known.” Appel-
lant’s Br. 38. We disagree with that proposition, and we
find that TW’s cases are distinguishable. In Ultimax Ce-
ment Manufacturing Corp. v. CTS Cement Manufacturing
Corp., we held that information “disclosed in a patent” is
“generally known to the public” for purposes of the CUTSA.
587 F.3d 1339, 1355–56 (Fed. Cir. 2009). We emphasized
that the “relevant public in the cement industry” would be
likely to know that the alleged trade secret, the use of cer-
tain compounds in cement, was disclosed in a Japanese pa-
tent.
Id.
Similarly, in Convolve, Inc. v. Compaq Computer Corp.,
the court held that information disclosed in two academic
theses was generally known and therefore not a trade se-
cret under the CUTSA. No. 00 CIV. 5141,
2011 WL
7144803, at *10–11 (S.D.N.Y. Oct. 6, 2011), aff’d in relevant
part, 527 F. App’x 910, 922 (Fed. Cir. 2013). In that case,
the plaintiff developed technology for use in computer disk
drives, and the theses disclosing the alleged trade secret
were directed specifically to disk drive technology. See
id.
at *1, *10. In both Ultimax and Convolve, there was a
showing that the alleged secret was disclosed to others in
the plaintiff’s field. Here, the evidence shows that TSS was
known in the field of statistics, without evidence that the
statistical principle had particular application to the plain-
tiff’s field or a related field.
In Attia v. Google LLC, another case cited by TW, the
owner of the alleged trade secret authorized another party
to publish information disclosing the trade secret in a pa-
tent application.
983 F.3d 420, 425 (9th Cir. 2020). In fact,
the owner of the alleged trade secret admitted that publi-
cation of the patent application “extinguished” its trade se-
cret rights.
Id. at 426. In this case, neither the IEEE
publication nor any other article potentially disclosing the
TSS was published under authorization from Cercacor or
Masimo, which continue to assert their trade secret rights.
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MASIMO CORPORATION v. TRUE WEARABLES, INC. 9
TW’s other cases also do not aid its cause, because the
plaintiff in both cases placed the alleged trade secret into
the public domain. See, e.g., In re Sotera Wireless, Inc., 794
F. App’x 625, 627 (9th Cir. 2020) (unpublished) (the plain-
tiff published the alleged trade secret in a white paper on
its own website); Forcier v. Microsoft Corp.,
123 F. Supp.
2d 520, 528 (N.D. Cal. 2000) (alleged trade secret was pub-
lished in a patent application filed by the plaintiff). Here,
no one alleges that Masimo placed the TSS into the public
domain.
In addition to its arguments based on the IEEE confer-
ence paper, TW points to a declaration from its expert,
Thomas Goldstein. Dr. Goldstein, a computer science pro-
fessor, claimed to be the kind of person who could “obtain
economic value from” the disclosure of the TSS. J.A. 3101.
TW argues that Dr. Goldstein was such a person because
his curriculum vitae lists work for an alleged competitor of
Masimo’s on “algorithms for medical image reconstruc-
tion,” and that “attendees of an IEEE signal processing
conference” are also such persons. Appellant’s Br. 17.
The district court noted that the TSS’s economic value
derives from how it makes development of SpHb-measur-
ing devices practical. J.A. 14. The district court was not
required to credit Dr. Goldstein’s declaration as establish-
ing that the TSS would be well known to persons involved
in the relevant field of art, because Dr. Goldstein’s declara-
tion did not tie the particular statistical information to the
field of medical devices for measuring blood characteristics,
or even any related field. The court’s conclusion in that
regard was supported by the evidence that Dr. Lamego had
described the TSS as a trade secret “not known in the lit-
erature,” and had labeled a notebook including the TSS and
related material as a trade secret. J.A. 809, 823–28.
Under some circumstances, the publication of an al-
leged trade secret will clearly be sufficient to indicate that
the information is generally known. However, the fact that
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10 MASIMO CORPORATION v. TRUE WEARABLES, INC.
the trade secret has been revealed in some publication
somewhere does not necessarily compel a finding that the
information cannot maintain its status as a trade secret for
a party in an entirely different field from the one to which
the publication was addressed.
We need not decide the precise boundaries of the class
of persons who could obtain economic value from the dis-
closure of the TSS. In analogous cases, such persons have
been described as those falling within the class of “business
competitors or others to whom the information would have
some economic value.” Syngenta Crop Prot., Inc. v. Hel-
liker,
138 Cal. App. 4th 1135, 1172 (Ct. App. 2006); see also
DVD Copy Control Assn., Inc. v. Bunner,
116 Cal. App. 4th
241, 251 (Ct. App. 2004) (the “relevant people” are “poten-
tial competitors or other persons to whom the information
would have some economic value”); Restatement (Third)
Unfair Competition § 39 cmt. f (suggesting consideration of
whether a disclosure was “reasonably accessible to compet-
itors”); All Am. Semiconductor, LLC v. APX Tech. Corp.,
No. G046605,
2013 WL 4434345 (Cal. Ct. App. Aug. 14,
2013), as modified on denial of reh’g (Sept. 10, 2013) (“In-
formation that is generally known to the public or to per-
sons in the relevant industry is not a trade secret.”);
Kittrich Corp. v. Chilewich Sultan, LLC, No. CV1210079,
2013 WL 12131376, at *4 (C.D. Cal. Feb. 20, 2013) (consid-
ering whether the information was “widely publicized in
the industry” along with “industry custom”).
Ultimately, the class of persons who could obtain eco-
nomic value from the disclosure of the TSS may well be
broader than just those entities who develop noninvasive
blood content detectors. For example, disclosure of the TSS
in a publication directed to persons working in related
fields, such as the healthcare field in general, might be suf-
ficient to render the TSS generally known to persons who
could obtain economic value from it based on its utility in
signal processing in medical instruments generally. There
may be other fields in which the use of TSS could result in
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MASIMO CORPORATION v. TRUE WEARABLES, INC. 11
economic value. However, based on the limited record de-
veloped in this preliminary injunction proceeding, the dis-
trict court was not required to conclude that the fact that
the TSS was known to at least some persons within the sta-
tistics community meant that it was generally known to
persons who could obtain economic value from it. The dis-
trict court therefore did not err in finding that Masimo is
likely to succeed in showing the TSS to be a trade secret.
At minimum, Masimo has raised a serious question as
to the validity of its trade secret, i.e., it has demonstrated
a “fair chance of success on the merits or questions serious
enough to require litigation.” Pimentel v. Dreyfus,
670 F.3d
1096, 1105–06 (9th Cir. 2012) (citation omitted). That is
sufficient to justify entry of a preliminary injunction in this
case, given that the consequence of denying preliminary re-
lief would be to allow disclosure of the trade secret before
Masimo’s right to prevent disclosure is decided in the trial
on the merits. 2
B
TW next argues that the district court erred in denying
its motion for reconsideration of the decision to enter the
preliminary injunction. We review the district court’s de-
nial of a motion for reconsideration for abuse of discretion.
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc.,
5
F.3d 1255, 1263 (9th Cir. 1993). A motion for reconsidera-
tion “is appropriate if the district court (1) is presented
2 As the Supreme Court explained in University of
Texas v. Camenisch,
451 U.S. 390, 395 (1981), “a prelimi-
nary injunction is customarily granted on the basis of pro-
cedures that are less formal and evidence that is less
complete than in a trial on the merits,” and as a conse-
quence, “the findings of fact and conclusions of law made
by a court granting a preliminary injunction are not bind-
ing at trial on the merits.”
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12 MASIMO CORPORATION v. TRUE WEARABLES, INC.
with newly discovered evidence, (2) committed clear error
or the initial decision was manifestly unjust, or (3) if there
is an intervening change in controlling law.”
Id.
After the preliminary injunction was entered, TW ob-
tained deposition testimony from three current or former
Masimo employees, “all of whom are or were engineers in
the noninvasive monitoring industry.” Appellant’s Br. 51.
Those witnesses testified that electrical engineers working
in the industry often review IEEE publications, and that
those engineers “actively referred to IEEE publications
while developing algorithms for Cercacor.”
Id. TW argued
that the testimony was new evidence that the IEEE publi-
cation disclosing the TSS was generally known to those
who could obtain economic value from the TSS’s disclosure.
The district court noted that it was “already familiar
with how well known the articles at issue were,” and that
the motion “therefore [did] not raise any new material facts
that justify reconsideration.” J.A. 43. In particular, the
district court highlighted that a “showing that IEEE publi-
cations are generally known to electrical engineers . . . is
insufficient to show that information found in particular
articles is generally known.” J.A. 42. That was especially
true given that IEEE publishes approximately “two hun-
dred different transactions, journals, and magazines,” and
adds about 200,000 papers annually to its digital library.
Id.
Rather than challenging those observations by the dis-
trict court, TW continues to focus on the district court’s al-
leged refusal to consider the IEEE publication as evidence
that the TSS was generally known. See Appellant’s Br. 52.
That is the same argument that TW made in response to
the district court’s findings as to the merits of Masimo’s
trade secret claim, which we hold were not legally errone-
ous. In light of the district court’s findings that the depo-
sition testimony did not raise “any new material facts that
justify reconsideration,” see Sch. Dist. No. 1J, 5 F.3d at
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MASIMO CORPORATION v. TRUE WEARABLES, INC. 13
1263, we are not persuaded that the district court abused
its discretion in denying True Wearables’ motion for recon-
sideration.
C
TW argues that Masimo is not likely to establish that
Dr. Lamego misappropriated the TSS. We need not reach
that argument because it was not raised to the district
court. 3 Villanueva v. California,
986 F.3d 1158, 1164 n.4
(9th Cir. 2021) (“We have a general rule against entertain-
ing arguments on appeal that were not presented or devel-
oped before the district court.”) (internal quotation marks
and citation omitted).
Likewise, TW argues that the district court erred in
balancing the equities among the parties. TW’s principal
argument on this point is that the district court failed to
consider the loss of patent term that TW would effectively
incur as a result of the preliminary injunction. That
3 In the “Statement of Facts” section of its brief be-
fore the district court, TW noted that Dr. Lamego inde-
pendently created the Oxxiom device. J.A. 3077–79. That
assertion falls short of constituting a developed argument
that Dr. Lamego did not misappropriate the TSS in partic-
ular. See Valentine v. Wolf, 793 F. App’x 547, 548 (9th Cir.
2020) (argument is forfeited if the district court is not “on
notice” of it). A single reference to a point in the statement
of facts or background section of a brief typically does not
preserve that argument for appeal. See In re Baxter Int’l,
Inc.,
678 F.3d 1357, 1362 (Fed. Cir. 2012); Ledford v.
Peeples,
657 F.3d 1222, 1258 (11th Cir. 2011); Wasco Prods.
Inc. v. Southwall Tech., Inc., 166 F. App’x 910, 911 (9th Cir.
2006). That is all TW’s brief before the district court had
to say on the issue of misappropriation.
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14 MASIMO CORPORATION v. TRUE WEARABLES, INC.
argument was not raised before the district court and is
therefore forfeited. 4
In addressing the balancing of the equities, TW argues
that Masimo would not be harmed by publication of the
’158 Application. That argument, however, assumes that
TW will prevail in showing that Masimo does not have a
valid trade secret. If the TSS is a trade secret, then the
publication of the ’158 Application would destroy that trade
secret by making it public. See Ultimax,
587 F.3d at 1355
(“Once the information is in the public domain and the ele-
ment of secrecy is gone, the trade secret is extin-
guished . . . .”) (citation omitted). That potential harm to
Masimo is significant, and the district court did not err in
considering it.
III
In summary, the district court did not err in finding
that Masimo was likely to succeed in showing the TSS to
be a trade secret. TW’s remaining arguments are either
forfeited or unpersuasive. For those reasons, we affirm the
decision of the district court.
AFFIRMED
4 TW argued before the district court that the poten-
tial harm to it, if the preliminary injunction were entered,
was a delay in the ability to enforce its patent rights. J.A.
3097–98. A delay in enforcing patent rights is a temporary
harm, whereas a loss of patent term is permanent. Be-
cause TW did not raise the effect that the loss of patent
term could have on the balancing of the equities, we do not
address that argument here.
