Case: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 1 of 22 PageID #:59454
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`Civil Action No.: 1:17-cv-01973
`
`Honorable Charles R. Norgle Sr.
`
`REDACTED - PUBLIC VERSION
`
`
`))))))))))))))))
`
`MOTOROLA SOLUTIONS, INC., and
`MOTOROLA SOLUTIONS MALAYSIA
`SDN. BHD.
`
`
`Plaintiffs,
`
`
`v.
`
`HYTERA COMMUNICATIONS
`CORPORATION LTD.,
`HYTERA AMERICA, INC., AND
`HYTERA COMMUNICATIONS
`AMERICA (WEST), INC.
`
`
`Defendants.
`
`
`)
`
`MOTOROLA’S MEMORANDUM OF LAW IN SUPPORT OF
`ITS APPLICATION FOR TEMPORARY RESTRAINING ORDER
`
`
`
`
`
`

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`Case: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 2 of 22 PageID #:59455
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`
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`
`
`I.
`II.
`
`III.
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`
`
`TABLE OF CONTENTS
` Page(s)
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`INTRODUCTION .............................................................................................................. 1
`ARGUMENT ...................................................................................................................... 3
`A.
`Motorola Has Succeeded on the Merits .................................................................. 4
`B.
`Hytera’s Ongoing Use of Motorola’s Trade Secrets and Code Will Cause
`Motorola Irreparable Harm That Monetary Damages Cannot Remedy ................. 5
`1.
`Hytera’s Ongoing Use of Motorola’s Trade Secrets and
`Copyrights to Compete Against Motorola Will Irreparably Harm
`Motorola ...................................................................................................... 5
`Allowing Hytera To Continue Misappropriating Motorola’s Trade
`Secrets and Infringing Its Copyrights Will Also Cause Motorola
`Irreparable Reputational Harm ................................................................. 10
`The Balance of Harm Weighs Decidedly In Favor Of Entering A TRO .............. 12
`The Public Interest Strongly Favors Enjoining Hytera’s Ongoing Unlawful
`Conduct ................................................................................................................. 14
`CONCLUSION ................................................................................................................. 15
`
`C.
`D.
`
`2.
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`
`
`i
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`

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`Case: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 3 of 22 PageID #:59456
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Am. Family Mut. Ins. Co. v. Roth,
`No. 05 C 3839, 2005 WL 3700232 (N.D. Ill. Aug. 5, 2005) .....................................................9
`
`Atari, Inc. v. JS & A Grp., Inc.,
`597 F. Supp. 5 (N.D. Ill. 1983) ................................................................................................15
`
`Computer Assocs. Int’l v. Quest Software, Inc.,
`333 F. Supp. 2d 688 (N.D. Ill. 2004) .......................................................................................11
`
`Dulisse v. Park Int’l Corp.,
`No. 97 C 8018, 1998 WL 25158 (N.D. Ill. Jan. 9, 1998) ........................................................10
`
`Eagle View Techs., Inc. v. Xactware Sol’ns, Inc.,
`Case No. 1:15-cv-07025-RMB, Dkt. 800 (D.N.J. Sept. 26, 2019) ........................................4, 8
`
`Epic Games, Inc. v. Altmeyer,
`No. ob-cv-0764, 2008 WL 4853634 (S.D. Ill. Nov. 5, 2008) ....................................................5
`
`IDS Life Ins. Co. v. SunAmerica, Inc.,
`958 F. Supp. 1258 (N.D. Ill. 1997) ......................................................................................8, 14
`
`Intertek USA, Inc. v. AmSpec, LLC,
`Case No. 14-cv-6160, 2014 WL 4477933 (N.D. Ill. Sept. 11, 2014) ........................................5
`
`ISC-Bunker Ramo Corp. v. Altech, Inc.,
`765 F. Supp. 1310 (N.D. Ill. 1990) ......................................................................................6, 13
`
`Lamb-Weston, Inc. v. McCain Foods, Ltd.,
`941 F.2d 970 (9th Cir. 1991) .....................................................................................................3
`
`Mazak Optonics Corp. v. Marlette,
`No. 17 C 1023, 2017 WL 3394727 (N.D. Ill. Aug. 8, 2017) ...................................................14
`
`Mintel Int’l Grp., Ltd. v. Nergheen,
`No. 1:08-cv-03939, 2008 WL 2782818 (N.D. Ill. July 16, 2008) ...................................3, 4, 13
`
`Monroe v. United Air Lines, Inc.,
`1983 WL 434 (N.D. Ill. Jan. 24, 1983) ......................................................................................4
`
`OmniGen Research, LLC v. Yongqiang Wang,
`No. 6:16-CV-268-MC, 2017 WL 5505041 (D. Or. Nov. 16, 2017) ..........................................3
`
`ii
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`PrimeSource Bldg. Prod., Inc. v. Huttig Bldg. Prod., Inc.,
`No. 16 CV 11390, 2017 WL 7795125 (N.D. Ill. Dec. 9, 2017) ................................................6
`
`RMH Tech LLC v. PMC Indus., Inc.,
`352 F. Supp. 3d 164 (D. Conn. 2018) ......................................................................................12
`
`Rockwell Graphic Sys., Inc. v. DEV Indus., Inc.,
`No. 84 C 6746, 1993 WL 286484 (N.D. Ill. July 29, 1993) ..............................................13, 15
`
`San Diego Comic Convention v. Dan Farr Prods.,
`336 F. Supp. 3d 1191 (S.D. Cal. 2018) ......................................................................................4
`
`Steele v. Bulova Watch Co.,
`344 U.S. 280 (1952) ...................................................................................................................3
`
`Surgipath Med. Indus., Inc. v. O’Neill,
`No. 1:09-cv-02453, 2009 WL 10713821 (N.D. Ill. June 19, 2009)...........................................3
`
`Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
`No. 04 C 5312, 2008 WL 4531371 (N.D. Ill. May 22, 2008) ...................................................7
`
`Vendavo, Inc. v. Long,
`397 F. Supp. 3d 1115 (N.D. Ill. 2019) .........................................................................3, 5, 6, 13
`
`WeRide Corp. v. Kun Huang,
`379 F. Supp. 3d 834 (N.D. Cal. 2019) .......................................................................................3
`
`Statutes
`
`18 U.S.C. § 1837 ..............................................................................................................................3
`
`Rules
`
`Fed. R. Civ. P. 65(b) ....................................................................................................................1, 3
`
`Fed. R. Evid. 702 .............................................................................................................................6
`
`
`
`iii
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`I.
`
`INTRODUCTION
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`Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, plaintiffs Motorola
`
`Solutions, Inc., and Motorola Solutions Malaysia SDN. BHD. (“Motorola”) respectfully request
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`that the Court enter a temporary restraining order (“TRO”) enjoining defendants Hytera
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`Communications Corporation Ltd., Hytera America, Inc., and Hytera Communications America
`
`(West), Inc. and all those acting together with any of them (“Hytera”) from any further
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`misappropriation of Motorola’s trade secrets or infringement of Motorola’s copyrights, including
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`without limitation any further sales of the portable, mobile, and repeater Digital Mobile Radio
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`(“DMR”) products at issue in this case anywhere in the world. Specifically, Motorola respectfully
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`requests that the Court (i) enter a TRO immediately to prevent any further irreparable harm to
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`Motorola, and (ii) set a hearing and briefing schedule on Motorola’s forthcoming motion for a
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`permanent injunction to occur prior to expiration of the TRO.
`
`With the jury rejecting every one of Hytera’s purported defenses and excuses for its illegal
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`conduct, there no longer remains any question that Hytera willfully and maliciously stole and used
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`Motorola’s trade secrets and copyrighted source code for over a decade. The evidence presented
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`at trial also leaves no doubt that Hytera will continue to violate Motorola’s intellectual property
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`rights—and disregard the laws protecting those rights—unless enjoined by this Court. Despite
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`Hytera’s lead-off witness testifying he would have stopped selling the Accused Products1
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`“immediately” upon learning of the theft in 2017 if he had been empowered to do so2, Hytera
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`continued to sell the Accused Products unabated throughout this lawsuit in blatant disregard of the
`
`
`1 The Accused Products are defined in Appendix A to the contemporaneously filed Application for Temporary
`Restraining Order.
`
`2 Trial Tr. at 2481:18-25.
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`1
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`

`

`-C
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`
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`law.3 Hytera even continued to launch new products using Motorola’s trade secrets and
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`copyrighted source code after this lawsuit was filed.4 The reason for Hytera’s refusal to take
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`responsibility for its misconduct by ceasing sales of the Accused Products is not complicated:
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`Hytera was not willing to stop profiting from its theft and use of Motorola’s trade secrets and
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`copyrighted source code, selling over
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` of the Accused Products (approximately
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`ase: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 6 of 22 PageID #:59459
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` per day) since Motorola filed the complaint.5 And there is no legitimate reason to think
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`Hytera will stop its illegal conduct absent being enjoined by this Court. To the contrary, after
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`Hytera’s Vice President and President of Hytera North and South America, Andrew Yuan, was
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`asked “[u]nless the court orders Hytera out of the marketplace, Hytera will continue to compete in
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`the DMR market,” he testified he did not think the Court would enjoin Hytera and ultimately
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`testified that Hytera is here to stay.6
`
`The trial also confirmed that Hytera’s ongoing use of Motorola’s trade secrets and
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`copyrighted source code will cause Motorola additional irreparable harm unless that conduct is
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`immediately enjoined by the Court. By continuing to sell its Accused Products around the world—
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`which, without exception, use and were designed based on Motorola’s trade secrets and
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`copyrighted source code—Hytera will continue to cause immense harm to Motorola in ways that
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`cannot be quantified: Motorola will continue to lose market share to Hytera’s directly competing
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`
`
`3 Trial Tr. at 4162: 1-11 (Frederiksen-Cross confirming that “
`”); id. at 2830:12-22 (Yu Yang confirming he knows “that
`Hytera has Motorola’s confidential information,” “that Hytera’s products have Motorola source code in them”
`and “that Hytera is in possession of confidential Motorola documents”).
`
`4 Trial Tr. at 5364:16-5365:6; Ex. 5 (DDX-22.12) (Dr. Aron’s slide showing three accused products launching in
`January 2019).
`
`5 Trial Tr. at 5344:4-10, Ex. 6 (PDX-26.2); see also Ex. 7 (PTX-2071.25), Ex. 8 (PTX-2226).
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`6 Dkt. 766-8 at 215:19-217:6; see also Trial Tr. at 3539:10-13.
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`2
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`

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`
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`Accused Products around the world, as it has for several years, and will continue to suffer harm to
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`its reputation as an innovator. These are harms that cannot be remedied through a judgment for
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`past damages, even putting aside the likelihood that Hytera will attempt to avoid enforcement of
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`any monetary judgment entered by this Court. Entry of a worldwide TRO to immediately address
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`Hytera’s complete indifference to the laws protecting Motorola’s trade secrets and copyrights is
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`necessary to stop more irreparable harm from occurring while the parties brief and appear before
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`the Court on a hearing on Motorola’s forthcoming motion for a permanent injunction.7
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`II.
`
`ARGUMENT
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`A TRO should issue pursuant to Rule 65(b) of the Federal Rules of Civil Procedure where
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`the applicant demonstrates: (1) a likelihood of success on the merits; (2) the absence of an adequate
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`remedy at law; and (3) that it will suffer irreparable harm absent a TRO.8 See, e.g., Surgipath Med.
`
`Indus., Inc. v. O’Neill, No. 1:09-cv-02453, 2009 WL 10713821, at *2 (N.D. Ill. June 19, 2009)
`
`(granting a TRO to enjoin trade secret misappropriation); Mintel Int’l Grp., Ltd. v. Nergheen, No.
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`1:08-cv-03939, 2008 WL 2782818, at *2 (N.D. Ill. July 16, 2008). Once this showing is made,
`
`
`7 A TRO enjoining Hytera’s worldwide conduct is appropriate for multiple reasons, including in view of the
`Defense of Trade Secrets Act’s application “outside the United States” to any “act in furtherance of the offense
`was committed in the United States.” 18 U.S. C. § 1837; Dkt. 834. See also, e.g., Lamb-Weston, Inc. v. McCain
`Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (holding that issuance of worldwide injunction not abuse of
`discretion where scope of injunction would place the defendant “in the position it would have occupied” prior to
`the misappropriation and it extended to impacted foreign markets); WeRide Corp. v. Kun Huang, 379 F. Supp. 3d
`834, 855 (N.D. Cal. 2019) (granting worldwide preliminary injunction to prevent defendant from, inter alia, using
`or disclosing plaintiff’s trade secrets); OmniGen Research, LLC v. Yongqiang Wang, No. 6:16-CV-268-MC, 2017
`WL 5505041, at *24 (D. Or. Nov. 16, 2017) (issuing worldwide permanent injunction and holding that “[s]ince
`Defendants’ wrongful actions have included conduct occurring in China— including starting a competing Chinese
`business, filing a Chinese patent, and speaking at a conference in China using OmniGen’s copyrighted slides —
`a worldwide injunction is appropriate and necessary to accord Plaintiffs meaningful relief.”); cf. Steele v. Bulova
`Watch Co., 344 U.S. 280 (1952) (affirming issuance of worldwide injunction “[i]n . . . light of the broad
`jurisdictional grant of the Lanham Act,” which “prescribe[s] standards of conduct for American citizens” and the
`fact that Congress “may project the impact of its laws beyond the territorial boundaries of the United States”).
`
`8 As Judge Dow remarked in Vendavo and Mintel, the two requirements of irreparable harm and no adequate
`remedy at law “tend to merge.” Vendavo, Inc. v. Long, 397 F. Supp. 3d 1115, 1143 (N.D. Ill. 2019); Mintel, 2008
`WL 2782818, at *5.
`
`3
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`

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`
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`courts balance the harm to the plaintiff if relief is wrongfully denied against the harm to the
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`defendant if relief is wrongfully granted. Mintel, 2008 WL 2782818, at *2. The court also
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`considers whether granting the TRO will harm the public interest. Id. Further, where a jury has
`
`found that a competitor selling directly competing products infringes a plaintiff’s intellectual
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`property rights, entry of a TRO pending briefing on a permanent injunction motion is particularly
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`appropriate. See Eagle View Techs., Inc. v. Xactware Sol’ns, Inc., Case No. 1:15-cv-07025-RMB,
`
`Dkt. 800 (D.N.J. Sept. 26, 2019). Each of these considerations weighs heavily in favor of granting
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`the requested TRO.
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`A. Motorola Has Succeeded on the Merits
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`On February 14, 2020, after a three-month trial, the jury returned a verdict in Motorola’s
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`favor in less than three hours.9 Motorola therefore has unquestionably prevailed on the merits.
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`Monroe v. United Air Lines, Inc., 1983 WL 434, at *4 (N.D. Ill. Jan. 24, 1983) (finding jury verdict
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`and court determinations show “more than a reasonable likelihood” that movant will ultimately
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`prevail); San Diego Comic Convention v. Dan Farr Prods., 336 F. Supp. 3d 1191, at 1197 (S.D.
`
`Cal. 2018) (“This jury verdict could not be a clearer indicator of [plaintiff’s] likelihood of success
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`on the merits”). Any post-trial briefing is highly unlikely to change this, as Hytera’s witnesses
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`have effectively conceded the elements of Motorola’s trade secret and copyright claims, and the
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`jury and this Court has already rejected Hytera’s statute of limitations defense.10
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`
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`9 Trial Tr. at 5979:14-5982:3.
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`10 Trial Tr. at 2480:10-15 (Sun admitting Hytera is using Motorola code); 3162:7-12, 3169:9-13 (Luo: same);
`2830:9-2884:6 (Yu Yang confirming he knows “that Hytera has Motorola’s confidential information,” “that
`Hytera’s products have Motorola source code in them” and “that Hytera is in possession of confidential Motorola
`documents”). See also Dkts. 279, 435, 701, 885, 761, 886, 841, 886.
`
`4
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`
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`B.
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`Hytera’s Ongoing Use of Motorola’s Trade Secrets and Code Will Cause
`Motorola Irreparable Harm That Monetary Damages Cannot Remedy
`
`“[T]here is ‘a presumption of irreparable harm to the plaintiff in cases of trade secret
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`misappropriation,’” Vendavo, 397 F. Supp. 3d at 1143; Intertek USA, Inc. v. AmSpec, LLC,
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`Case No. 14-cv-6160, 2014 WL 4477933, at *6 (N.D. Ill. Sept. 11, 2014) (“It is appropriate
`
`[in trade secret cases] to award equitable relief to eliminate the unfair advantage that
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`defendants’ gained by using plaintiff’s trade secret information.”), and “[t]here is an urgent
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`need for Court action” where the defendant is in the “active process of producing and distributing”
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`products that unlawfully use the copyrighted works, Epic Games, Inc. v. Altmeyer, No. ob-cv-
`
`0764, 2008 WL 4853634, at *4 (S.D. Ill. Nov. 5, 2008). These legal principles are particularly
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`applicable here, where Hytera’s ongoing sale of the Accused Products are unquestionably causing
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`additional irreparable harm to Motorola.
`
`1.
`
`Hytera’s Ongoing Use of Motorola’s Trade Secrets and Copyrights to
`Compete Against Motorola Will Irreparably Harm Motorola
`
`Innovation has always been the “lifeblood” of Motorola, and it is what allowed Motorola
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`to be the first company to launch a DMR product.11 In order to be the first to market with its high-
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`quality and cutting edge product, Motorola invested over $117 million and the work of dozens of
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`engineers to develop the 21 asserted trade secrets and write its copyrighted source code.12 As
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`Hytera’s expert, Andy Grimmett, conceded, it was “very important to Motorola, to have those
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`secret technologies in order to . . . give it competitive advantages in the marketplace.”13
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`11 Trial Tr. at 449:23-25 (Shepard testimony); id. at 165:14-166:3 (Lund testimony).
`
`12 Trial Tr. at 2156:2-9 (Malackowski testimony); id. at 594:14-23 (Boerger: 87 engineers and 9,500 staff months
`to develop the DMR source code); see also id. at 707:13-708:3 (Corretjer: 25 engineers 3,000 staff months to
`develop DSP code); id. at 999:3-5 (Karpoor: 20 engineers and 3,248 staff months to develop repeater).
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`13 Trial Tr. at 4771:10-13; see also id. at 165:14-21, 3445:15-20, 3447:6-9; Ex. 9 (PTX-2068.29).
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`5
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`

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`Using the trade secrets and copyrighted code that Motorola developed with its “blood,
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`sweat, and tears,” Hytera created a “copycat product” that directly competes with Motorola’s DMR
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`products.14,15 In fact, Hytera’s own witnesses admit that, to this day, Motorola has to compete
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`“against products from Hytera that have Motorola source code in [them].”16
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`Hytera’s ongoing sale of the Accused Products, using and based on Motorola’s trade
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`secrets and source code, is alone sufficient for the Court to enter a TRO barring Hytera from
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`continuing to make, offer to sell, or sell the Accused Products, because it is impossible to determine
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`“the damage to [Motorola’s] sales that could be caused by allowing [Hytera] to use its own secrets
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`against it.” Vendavo, 397 F. Supp. 3d at 1144 (finding irreparable harm and entering preliminary
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`injunction); PrimeSource Bldg. Prod., Inc. v. Huttig Bldg. Prod., Inc., No. 16 CV 11390, 2017
`
`WL 7795125, at *11 (N.D. Ill. Dec. 9, 2017) (irreparable harm established where defendant used
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`plaintiff’s trade secrets and “continue[d] to use that information to compete unfairly”); ISC-Bunker
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`Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310, 1334-35, 1339 (N.D. Ill. 1990) (irreparable harm
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`and adequate remedy at law found where defendant was “likely to continue to misappropriate, use
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`and disclose those trade secrets unless enjoined by this Court”).
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`Moreover, a TRO is particularly necessary and appropriate here because Hytera’s ongoing
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`sale and use of Motorola’s trade secrets and source code will cause several distinct forms of
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`irreparable harm to Motorola. First, Hytera’s ongoing sale of the Accused Products will
`
`
`14 Trial Tr. at 609:6-14 (Boerger testifying, consistent with Fed. R. Evid. 702); see also id. at 3684:21-25, 3686:25-
`3687:6 (Rublaitus: Hytera had “a tremendous advantage” because “the material that was taken represents
`thousands and thousands of engineering hours”).
`
`15 Trial Tr. at 1950:21-1951:7, 2189:6-15, id. at 2161:12-18 (Malackowski testimony).
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`16 Trial Tr. at 3541:18-23; id. at 3409:17-22 (Yuan: confirming that Hytera competes with Motorola for DMR sales);
`id. at 3169:9-13 (Luo: some of Hytera’s current DMR source code includes some Motorola source code); id. at
`2830:15-17 (Yang: confirming that “Hytera’s products have Motorola source code in them”).
`
`6
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`

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`
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`irreparably harm Motorola by causing it to continue to lose market share in the DMR market in a
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`way it may never be able to recover from. Since launching in 2010, Hytera has grown its share of
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`the DMR business such that it now “sells the second most DMR radios globally” and “has the
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`second most dealers globally.”17 Those gains have come at the price of Motorola’s market share:
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`as Motorola’s internal assessments show, Motorola steadily lost market share to Hytera in the years
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`leading up to this lawsuit. Declaration of Russell Lund (“Lund Decl.”) ¶ 13. Motorola’s loss of
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`market share was further confirmed by Hytera’s Mr. Yuan, who testified that “Hytera is growing
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`its DMR business at a faster rate than Motorola.”18 And another of Hytera’s witnesses testified
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`that Motorola and Hytera compete in what is “really a . . . two -player market” because “apart from
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`Hytera and Motorola, if we put everybody together in DMR market . . . I think their DMR market
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`share will be less than 10 percent,” such that Hytera’s sales of the Accused Products necessarily
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`come entirely (or nearly so) at the expense of Motorola’s market share.19 Moreover, given the
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`seven-to-ten year life span of the DMR products at issue, every sale and customer that Motorola
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`loses to Hytera is one that it will take Motorola at least that many years to get back if it is ever able
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`to do so. Lund Decl. ¶ 12. The ongoing harm to Motorola’s competitive position in the market
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`that will be caused if Hytera’s illegal conduct is not enjoined is not quantifiable and cannot be
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`adequately remedied by a money judgment. Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C
`
`5312, 2008 WL 4531371, at *2 (N.D. Ill. May 22, 2008), aff'd, 595 F.3d 1340 (Fed. Cir. 2010)
`
`(entering injunction where plaintiff’s market share was “one of its most important assets” and
`
`
`17 Trial Tr. at 3393:5-10; id. at 205:23-206:3 (Motorola’s Russ Lund testifying that when Hytera first launched its
`Accused Products in 2010, Motorola’s MotoTRBO products “were doing very well in North America and all the
`different regions, Asia, Europe,” but “Hytera compete[s] with Motorola in the DMR market today.”).
`
`18 Dkt. 766-8 at 81:9-17.
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`19 Dkt. 766-9 at 16:9-13 (Cragg testimony); see also Dkt. 766-8 at 205:18-206:10 (Yuan testimony).
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`7
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`

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`
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`finding that “[e]rosion of this intangible asset would cause incalculable extraneous injury to TT’s
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`business”); Eagle View Techs., Inc. v. Xactware Sol’ns, Inc., Case No. 1:15-cv-07025-RMB, Dkt.
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`841 at 18, 25 (D.N.J. Oct. 18, 2019) (loss of market share relevant to showing irreparable harm).
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`Second, Motorola will be irreparably harmed by having to compete with its own
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`proprietary, trade secret technology because Hytera’s lower prices for the stolen technology will
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`irreparably harm the pricing of Motorola’s products. Hytera offers the Accused Products at
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`approximately 8-15% lower than the price of Motorola’s DMR products,20 and is able to do so in
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`part because of the savings on research and development that it realized from its theft of Motorola’s
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`trade secrets and source code.21 As a result of those lower prices, customers have chosen to
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`purchase Hytera’s Accused Products over Motorola’s competing products on the basis of price.22
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`See also Lund Decl. ¶ 11. In response to Hytera’s pricing, Motorola has been forced to lower its
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`prices or offer price exceptions to compete with Hytera, and if Hytera is not enjoined, Motorola
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`will have to continue to lower its prices in order to compete with the Accused Products. Lund
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`Decl. ¶¶ 3-10. This price erosion cannot be remedied by a money judgment.23
`
`Finally, if not enjoined, Hytera will not only be able to continue to sell the Accused
`
`
`20 Dkt. 766-8 at 156:25-157:12 (Yuan testimony) id. at 2451:11-16 (Hytera witness Sun: “Of course, the cheaper
`products will sell better.”).
`
`21 Trial Tr. at 2156:15-2157:19, 5364:9-19; Dkt. 766-8 at 156:11-157:13; see also Trial Tr. at 5364:22-5365:6
`(Malackowski explaining that Hytera avoids R&D costs “with each and every [accused] product. There is no
`product that can be brought to the market in this case without the benefits of that research and development. So
`it relates to each and every product at the time that product is introduced,” including “products released in
`February 2017 and January 2019.”).
`
`22 Dkt. 766-9 at 91:16-21, 93:20-32, 96:3-10 (Cragg testimony); see also Trial Tr. at 2451:11-16 (Sun: “Of course,
`the cheaper products will sell better.”).
`
`23 See also IDS Life Ins. Co. v. SunAmerica, Inc., 958 F. Supp. 1258, 1281 (N.D. Ill. 1997), aff'd in part, vacated in
`part sub nom. IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537 (7th Cir. 1998) (finding “[n]o remedy
`at law will make plaintiffs whole”); Eagle View, Case No. 1:15-cv-07025-RMB, Dkt. 841 at 22-23 (price erosion
`not compensable with money damages).
`
`8
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`Case: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 13 of 22 PageID #:59466
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`
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`Products, but it will also have continued access to and use of Motorola’s trade secrets and
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`copyrighted code to modify its current and create future products, as Hytera’s witnesses and
`
`experts admit that Hytera still “
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`
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`.24 Motorola’s
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`expert, Dr. Rangan, estimated that Hytera is still in possession of at least 1,600 of Motorola’s
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`confidential documents,25 and Hytera’s documents show that those documents have been passed
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`around to Hytera engineers for years, specifically for the purpose of “
`
`”
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`performs and realizes the trade secrets.26 Critically, Hytera engineers also still have access to
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`Hytera’s SVN servers, which stores the source code and libraries that contain or are based on
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`Motorola’s source code.27 The harm caused by this ongoing access to Motorola’s trade secrets
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`and copyrighted source code is particularly irreparable because it leaves open the possibility that
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`Motorola will never be able to truly know of, let alone quantify, the full extent of Hytera’s mis-
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`use of its trade secrets and copyrighted code.28
`
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`
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`24 Trial Tr. at 4596:8-20, 4593:13-15 (Grimmett testimony); id. at 2830:12-22 (Yang testimony).
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`25 Trial Tr. at 1843:24-1844:13.
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`26 Ex. 10 (PTX-531) and Ex. 11 (PTX-571) (Motorola “Neo” document sent to Hytera engineers in 2008); Ex. 12
`(PTX-843) (2013 email sending same document to Hytera engineers); Ex. 13 (PTX-530) (same document being
`sent to Hytera engineers in 2016).
`
`27 PTX-966 (Hytera’s SVN log showing that Motorola’s source code files still exist in Hytera’s repository) (because
`this exhibit is more than 49,000 kilobytes in size, it was not filed with the Court but will be made available upon
`request); Trial Tr. at 1219:15-1222:10 (Dr. Wicker identifying portions of Motorola’s source code on Hytera’s
`SVN); id. at 1259:7-25 (Dr. Wicker comparing Motorola code to source code on Hytera’s SVN).
`
`28 Am. Family Mut. Ins. Co. v. Roth, No. 05 C 3839, 2005 WL 3700232, at *26-27 (N.D. Ill. Aug. 5, 2005), report
`and recommendation adopted, No. 05 C 3839, 2006 WL 2192004 (N.D. Ill. July 27, 2006) (issuing injunction
`where defendants “have already used the [trade secrets] in attempt to take business away from plaintiff” and “the
`genie is not only out of the bottle, . . . but in the employ of the wrongdoers”).
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`9
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`Case: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 14 of 22 PageID #:59467
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`2.
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`Allowing Hytera To Continue Misappropriating Motorola’s Trade
`Secrets and Infringing Its Copyrights Will Also Cause Motorola
`Irreparable Reputational Harm
`
`Allowing Hytera to continue using Motorola’s trade secrets and source code will also
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`irreparably harm Motorola’s reputation as an innovator. As Motorola’s witness Mr. Corretjer
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`testified, “Motorola has always been a very innovative company and one of the pioneers of wireless
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`communications.”29 But, when it launched the Accused Products built using stolen source code
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`and technical information, it was Hytera that touted itself and its Accused Products as
`
`“innovative.”30 As Motorola’s expert explained, “Hytera is claiming that their radios, which are
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`based upon the Motorola trade secrets and copyrights, are actually the ones that are innovative and
`
`the leading digital technologies and the most valuable solutions. So they’re not just competing
`
`that they’re just as good at or comparable to. They’re actually saying they’re better [than
`
`Motorola].”31 This is another type of irreparable harm that injunctive relief should protect against.
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`See, e.g., Dulisse v. Park Int'l Corp., No. 97 C 8018, 1998 WL 25158, at *4 (N.D. Ill. Jan. 9, 1998)
`
`(finding plaintiff “will suffer irreparable harm to its reputation and good will if K & M is allowed
`
`to pass off Park products as its own”). But, what’s worse, and as Motorola’s expert explained,
`
`Hytera can use (and has used) the money it saved by stealing Motorola’s trade secrets “not to catch
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`up, but to actually try to get ahead, to develop something that will differentiate themselves and
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`leap ahead of the innovator,” such that Motorola is faced with a “one-two punch” and will “have
`
`to confront something that they didn’t have the resources to develop themselves.”32 As a result,
`
`
`29 Trial Tr. at 694:21-22 (Corretjer testimony), id. at 1854:9-12 (Rangan: “Motorola is the market leader in this
`space in digital two-way radios”).
`30 Ex. 14 (PTX-0005) at 1-2.
`31 Trial Tr. at 2170:22-2171:5, Ex. 14 (PTX-0005) at 5.1.
`
`32 Tr. 2157:12019; id. at 723:21-724:5 (Corretjer: competitor with access to source code and technical documents
`would have Motorola’s “playbook … for how we do things,” and that “they could work on other stuff to basically
`leapfrog us and potentially get ahead of us. And that would be very harmful to Motorola”). See also Trial Tr. at
`
`10
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`Case: 1:17-cv-01973 Document #: 900 Filed: 02/18/20 Page 15 of 22 PageID #:59468
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`Motorola is not only competing against its own technology, but it is also competing against the
`
`advancements Hytera has been able to make through its ill-gotten gains from selling the Accused
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`Products and losing its reputation as a market leader for innovation of two-way digital radios. The
`
`only way to ensure no further harm of that nature is to enjoin Hytera. Computer Assocs. Int'l v.
`
`Quest Software, Inc., 333 F. Supp. 2d 688, 701 (N.D. Ill. 2004) (finding irreparable harm where
`
`CA “expended significant resources” in developing software, and it “would be nearly impossible
`
`to determine the dollar value” of the ‘head start’ received by stealing CA’s intellectual property).
`
`
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`The reputational harm that Motorola will continue to suffer if Hytera is not enjoined is
`
`particularly acutely because Hytera repeatedly misrepresented this lawsuit to its DMR customers
`
`by trying to use it to cast a shadow over the innovative nature of Motorola