IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Case No. 19-cv-07092
`
`Hon. Young B. Kim
`
`Jury Trial Demanded
`
`
`
`
`
`
`LIFE SPINE, INC.,
`
`
`Plaintiff,
`
`
`v.
`
`AEGIS SPINE, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`LIFE SPINE’S RESPONSE TO AEGIS’S MOTION FOR STAY PENDING APPEAL
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES .......................................................................................................... ii
`
`LEGAL STANDARD ......................................................................................................................1
`
`ARGUMENT ...................................................................................................................................1
`
`I.
`
`AEGIS WILL NOT SUCCEED ON APPEAL. ..................................................................1
`
`A.
`
`B.
`
`Aegis Ignores Multiple Independent Bases For Affirmance Of This Court’s
`Order. .......................................................................................................................1
`
`Aegis’s Narrow Challenge To Life Spine’s Trade Secret And Breach Of
`Contract Claims Will Fail. .......................................................................................4
`
`II.
`
`III.
`
`AEGIS WILL NOT SUFFER IRREPARABLE HARM ABSENT A STAY. ..................13
`
`LIFE SPINE WILL BE SUBSTANTIALLY INJURED IF THE PRELIMINARY
`INJUNCTION ORDER IS STAYED. ...............................................................................14
`
`IV. MAINTAINING THE PRELIMINARY INJUNCTION ORDER IS IN THE
`PUBLIC INTEREST. ........................................................................................................15
`
`CONCLUSION ..............................................................................................................................15
`
`
`
`
`
`
`
`i
`
`

`

`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`AMP Inc. v. Fleischhacker,
`1986 WL 3598 (N.D. Ill. Mar. 18, 1986) .................................................................................. 11
`
`Common Cause Ind. v. Lawson,
`978 F.3d 1036 (7th Cir. 2020) .................................................................................................... 1
`
`Composite Marine Propellers, Inc. v. Van Der Woude,
`962 F.2d 1263 (7th Cir. 1992) .................................................................................................... 9
`
`La Calhene, Inc. v. Spolyar,
`938 F. Supp. 523 (W.D. Wis. 1996) ......................................................................................... 15
`
`Lummus Corp. v. Cherokee Fabrication Co.,
`2007 WL 9698294 (N.D. Ga. Jan. 23, 2007) ............................................................................ 11
`
`Maher v. City of Chicago,
`547 F.3d 817 (7th Cir. 2008) .................................................................................................. 2, 4
`
`Roboserve, Ltd. v. Tom’s Foods, Inc.,
`940 F.2d 1441 (11th Cir. 1991) ................................................................................................ 11
`
`Smith v. CPC Foodservice,
`1997 WL 349993 (N.D. Ill. June 23, 1997) ................................................................................ 2
`
`Thermodyne Food Serv. Prods., Inc. v. McDonald’s Corp.,
`940 F. Supp. 1300 (N.D. Ill. 1996) ........................................................................................... 12
`
`Statutory Authorities
`
`765 ILCS 1065/2(d). ................................................................................................................. 4, 12
`
`https://www.uscourts.gov/sites/default/files/data_tables/ ............................................................. 14
`
`Additional Authorities
`
`
`
`
`
`ii
`
`

`

`Aegis’s Motion for Stay Pending Appeal (“Motion”) is nothing more than a repackaging
`
`of a narrow subset of arguments that this Court already heard and rejected in granting Life Spine’s
`
`Motion for Preliminary Injunction. While doubling down on these meritless arguments, Aegis
`
`ignores several key legal and factual findings that this Court relied on in issuing its Preliminary
`
`Injunction Order (“Order”), each of which independently supports the affirmance and continued
`
`enforcement of the Order. For these reasons, the Court should deny Aegis’s Motion and maintain
`
`its Order pending Aegis’s appeal.
`
`LEGAL STANDARD
`
`The Court “consider[s] four factors when deciding whether to stay an injunction pending
`
`appeal: (1) the likelihood the applicant will succeed on the merits of the appeal; (2) whether the
`
`applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
`
`substantially injure other parties; and (4) the public interest.” Common Cause Ind. v. Lawson, 978
`
`F.3d 1036, 1039 (7th Cir. 2020).
`
`I.
`
`AEGIS WILL NOT SUCCEED ON APPEAL.
`
`ARGUMENT
`
`A.
`
`Aegis Ignores Multiple Independent Bases For Affirmance Of This Court’s
`Order.
`
`Aegis’s only argument on the merits is that the Seventh Circuit will reverse this Court’s
`
`Order because Life Spine purportedly does not keep anything about the ProLift implant—
`
`including the precise designs and specifications of its key components—secret or confidential.
`
`(See Dkt. 233 at 1-10.) The evidence proves that Aegis is wrong, as explained by this Court in its
`
`Memorandum Opinion and Order (“Opinion”) and as demonstrated below in Section I.B. But,
`
`critically, even if Aegis were right, that supposed lack of confidentiality would not provide grounds
`
`for the Seventh Circuit to reverse this Court’s Order because the Court based its Order on multiple
`
`
`
`1
`
`

`

`other grounds that have nothing to do with the confidentiality of the ProLift implant. Each of these
`
`unchallenged findings provides an independent basis for the Seventh Circuit to affirm the Order,
`
`and thus provides an independent basis for this Court to deny Aegis’s Motion to Stay. See, e.g.,
`
`Maher v. City of Chicago, 547 F.3d 817, 821 (7th Cir. 2008) (rejecting appellant’s claim of error
`
`because he failed to challenge one of two independent grounds for the court’s holding); Smith v.
`
`CPC Foodservice, 1997 WL 349993, at *2 (N.D. Ill. June 23, 1997) (“[A]n affirmance may be
`
`based on fewer than all of the grounds relied on by the lower court if the appellate court finds the
`
`sustainable grounds sufficient for that purpose.”).
`
`First, the Court found that Life Spine is likely to succeed in proving its claim that Aegis
`
`breached the Distribution and Billing Agreement’s confidentiality provision by disclosing to L&K
`
`numerous categories of confidential devices and information in addition to the ProLift implant and
`
`its detailed specifications, including: (i) a ProLift installer, (ii) details and descriptions of a custom
`
`ProLift installer Life Spine prepared specially for Aegis, (iii) details regarding the surgical use of
`
`ProLift derived from Aegis’s surgeon consultants, and (iv) the prices for ProLift. (Dkt. 212 at 33-
`
`39.) Aegis does not even mention, much less challenge, the Court’s conclusions regarding these
`
`items. There is no reason to think the Seventh Circuit will disturb this Court’s Order where Aegis
`
`argues that only one of several of the Court’s breach of confidentiality findings was questionable.1
`
`Second, the Court found that Aegis breached the Distribution and Billing Agreement’s
`
`restrictive covenants by taking steps to discover the underlying specifications of ProLift and using
`
`
`1 Further, the Court found that Aegis breached the Distribution and Billing Agreement’s requirement that
`it train its employees with respect to its obligation to protect Life Spine’s confidential information. (Dkt.
`212 at 37.) This conclusion was sound, as all of Aegis’s top executives—including its CEO, Director of
`Research and Development, and Marketing Director—confirmed during the hearing that they either did not
`read the Distribution and Billing Agreement during Aegis’s relationship with Life Spine or did not take
`seriously Aegis’s obligations thereunder. (See P.I. Hr’g Tr. 511:2-8, 511:21-512:3 (Ahn); id. 656:17-23,
`657:11-14 (J. Lee); Kang Dep. 9:10-13, 92:14-18.)
`
`
`
`2
`
`

`

`them, in conjunction with L&K and its surgeon consultants, to copy and reverse engineer ProLift.
`
`(Dkt. 212 at 39-41.) Aegis’s promise that it would not attempt to “reverse engineer,” “create
`
`derivative works,” “discover any underlying ideas,” or “copy the design, knowledge, functionality,
`
`or otherwise” of ProLift was not conditioned on ProLift’s trade secrecy or confidentiality. (Id.;
`
`Dkt. 167-1, DBA § 8(b).) Aegis simply was not allowed to do those things and yet did them
`
`anyway. Aegis does not contend otherwise in its Motion, nor does Aegis suggest why the Seventh
`
`Circuit would disagree with this Court’s straightforward analysis of that claim.
`
`Third, the Court found that Aegis breached the Distribution and Billing Agreement’s
`
`fiduciary duty provision by shipping multiple ProLift devices to L&K in May and June 2018 and
`
`allowing its surgeon consultants to examine a ProLift set at Aegis’s March 2018 Expandable Cage
`
`Kickoff Meeting. (Dkt. 212 at 42-44.) The Court found that Aegis and L&K used these devices to
`
`develop AccelFix-XT, thereby harming Life Spine. (Id. at 43-44.) Aegis’s promise to “maintain
`
`custody and/or control of each” ProLift device in a “fiduciary capacity” as Life Spine’s “trustee”
`
`was not conditioned on ProLift’s trade secrecy or confidentiality. (Id.; Dkt. 167-1, DBA § 3(a).)
`
`Yet, again, Aegis does not confront this finding or provide any explanation as to why an order
`
`intended to remedy this breach of trust pending trial could possibly be undone on appeal.
`
`Fourth, at the preliminary injunction hearing, Life Spine demonstrated that Aegis
`
`misappropriated and used its trade secret information not just by copying the precise designs and
`
`dimensions of the ProLift cage’s interconnectivity mechanism, but by using Life Spine’s static
`
`shear compression testing data for ProLift and proprietary ProLift prices to develop its own device
`
`and then target Life Spine’s market share. The Court recognized each of these distinct claims,
`
`(Dkt. 212 at 45), and granted a preliminary injunction after it found that Life Spine will likely
`
`succeed at trial on each of them, (id. at 45-55). However, as noted above, Aegis argues only that
`
`
`
`3
`
`

`

`the Court erred with respect to its conclusion that the precise designs and dimensions of ProLift’s
`
`components are Life Spine trade secrets. The fact that Aegis does not challenge the Court’s other
`
`two bases for finding merit in Life Spine’s trade secret claims are further reasons to conclude that
`
`the Seventh Circuit will affirm this Court’s Order.
`
`Aegis’s failure to address any of these independent justifications for the Court’s Order is
`
`the only reason the Court needs to deny Aegis’s Motion. See, e.g., Maher, 547 F.3d at 821; CPC
`
`Foodservice, 1997 WL 349993, at *2.
`
`B.
`
`Aegis’s Narrow Challenge To Life Spine’s Trade Secret And Breach Of
`Contract Claims Will Fail.
`
`Even if the Court elects to address Aegis’s narrow challenge to its Order, the Court should
`
`reject it. At the preliminary injunction stage, Life Spine’s burden was to show a likelihood that the
`
`information it claims as its trade secret is (i) “sufficiently secret to derive economic value, actual
`
`or potential, from not being generally known to other persons who can obtain economic value from
`
`its disclosure or use” and (ii) “the subject of efforts that are reasonable under the circumstances to
`
`maintain its secrecy or confidentiality.” (Dkt. 212 at 46 (quoting 765 ILCS 1065/2(d)).) The Court
`
`will recall that the secrecy of the precise designs and specifications of the ProLift implant’s
`
`components, and the extensiveness of Life Spine’s efforts to maintain their secrecy, were two of
`
`the most thoroughly litigated issues during the nine-day preliminary injunction hearing. Almost
`
`all of the witnesses testified to some degree about the steps Life Spine, Aegis, or others in the
`
`industry take to protect their expandable cages from unfettered access by third parties, and the
`
`Court received numerous documents into evidence that helped shed light on the matter. After
`
`considering all of this evidence and reviewing nearly 400 pages of post-hearing briefing, the Court
`
`properly found that Life Spine showed a “strong likelihood of success” on both elements. (Id. at
`
`45-48.) Life Spine presented substantial evidence that it maintains the value of ProLift by keeping
`
`
`
`4
`
`

`

`the precise designs and specifications of its critical components secret and that it takes numerous
`
`steps that are reasonably designed to ensure that those secrets are not exposed to a potential
`
`competitor. Among other things, Life Spine showed the Court:
`
`i.
`
`Life Spine’s employees uniformly consider and treat the precise designs and
`
`specifications of the ProLift implant’s components as trade secrets. (Dkt. 212 at 5-6; P.I. Hr’g Tr.
`
`72:9-73:7 (Butler) (describing the “years of iterations,” “learning[s],” “knowing how to make th[e]
`
`device,” and “working with [] manufacturing in making it so that it moves together” as ProLift’s
`
`“secret sauce”); P.I. Hr’g Tr. 159:24-160:20 (Knap) (comparing the “inter-works of [ProLift], how
`
`it works, the measurements, [and] the testing” to KFC’s secret recipe); P.I. Hr’g Tr. 1042:21-
`
`1043:15 (Jesse) (confirming that ProLift implants include “trade secret information”); P.I. Hr’g
`
`Tr. 1449:1-12 (Lauf) (explaining that “the trade secrets in the ProLift product are the
`
`subcomponents, the assemblies… all the features, all the dimensions of those features, and how
`
`they come together and the exact measurements of those features”).)
`
`ii.
`
`Life Spine’s employees uniformly consider and treat the ProLift implant, installer,
`
`and associated instruments themselves as confidential and proprietary, and consider and treat
`
`detailed information about ProLift—including the precise designs and specifications of its
`
`components—as confidential and proprietary as well. (Dkt. 212 at 5-6; P.I. Hr’g Tr. 74:12-24
`
`(Butler) (describing Life Spine’s “work product,” including “the [ProLift] product itself,” as
`
`“confidential information”); P.I. Hr’g Tr. 156:22-157:10 (Knap) (explaining that “the ProLift cage
`
`itself” is “highly confidential”); P.I. Hr’g Tr. 600:6-24 (Wolters) (confirming that “Life Spine
`
`treat[s] [its ProLift designs] as confidential and [doesn’t] disclose them to anybody”); P.I. Hr’g Tr.
`
`927:12-15 (Jesse) (“Life Spine consider[s] the information contained within the ProLift product
`
`itself to be confidential and proprietary.”).)
`
`
`
`5
`
`

`

`iii. Market circumstances exist that make it very difficult for a potential competitor to
`
`gain access to ProLift, including the fact that ProLift is only sold on prescription (as opposed to
`
`off a pharmacy shelf), (Dkt. 212 at 48; P.I. Hr’g Tr. 73:12-74:3 (Butler)), and each ProLift implant
`
`sold to a hospital is dedicated for a scheduled surgery to be permanently implanted inside a specific
`
`patient’s spine, (Dkt. 212 at 48.).
`
`iv.
`
`Life Spine requires all third parties to sign confidentiality agreements before it will
`
`give them prolonged or unsupervised access to a ProLift device or detailed information about
`
`ProLift. (Dkt. 212 at 6; P.I. Hr’g Tr. 74:4-11 (Butler) (“[W]e won’t even convey any information
`
`without a confidentiality agreement.”); P.I. Hr’g Tr. 148:15-24 (Knap) (explaining that those who
`
`take possession of ProLift, “includ[ing] Life Spine employees,” must sign a confidentiality
`
`agreement); P.I. Hr’g Tr. 1111:2-1112:14 (Mueller) (explaining that Life Spine requires a
`
`confidentiality agreement before it will share “the details of ProLift” with third parties because
`
`“[w]e don’t want them to be able to use that information for their own in-house development, for
`
`their own FDA submissions, [or] for their own marketing collateral to use against us”).)
`
`v.
`
`When Life Spine markets ProLift at industry conventions, it keeps most devices
`
`behind Plexiglas or some other barrier, restricts individuals identified as potential competitors from
`
`gaining access to a device or learning sensitive information about ProLift, and supervises every
`
`interaction any third party has with a device. (Dkt. 212 at 6; P.I. Hr’g Tr. 923:13-927:11 (Jesse)
`
`(explaining that approaching Life Spine’s booth at an industry convention is “a lot like going into
`
`a jewelry store” and describing the various steps Life Spine takes to restrict individuals’ access to
`
`ProLift depending on the circumstances).)
`
`vi.
`
`Consistent with Life Spine’s treatment of ProLift, other companies that have
`
`developed and market expandable cages like ProLift consider and treat their devices and detailed
`
`
`
`6
`
`

`

`information about their devices as confidential. (Dkt. 212 at 34; P.I. Hr’g Tr. 73:18-74:3 (Butler)
`
`(“Everyone that mechanizes the distribution and conveyance of these devices inside the industry
`
`has an NDA or confidentiality agreement.”).)
`
`In addition to the evidence that Life Spine put forward regarding its own and other
`
`companies’ treatment of their expandable cages as secret and confidential, Life Spine also showed
`
`the Court that Aegis considers AccelFix-XT to be a confidential device that incorporates the
`
`company’s trade secret information. (Dkt. 212 at 35.) For example, Aegis’s Director of Research
`
`and Development, Jack Lee, testified that he considers the “detailed dimensions of each specific
`
`component[]” of an expandable cage to be “confidential information.” (P.I. Hr’g Tr. 856:16-
`
`857:8.). Moreover, Aegis’s former Marketing Director, Heidi Cha, candidly explained that Aegis
`
`keeps “the specific details about how [AccelFix-XT] works” confidential and does not allow third
`
`parties to take AccelFix-XT implants home with them because “that would give them a lot of time
`
`to potentially reverse engineer [the device and] take a lot of the trade secrets” incorporated in it.
`
`(Cha Dep. 50:11-16, 52:2-53:13.) Indeed, like Life Spine, Aegis does not allow potential
`
`competitors to access AccelFix-XT without signing a confidentiality agreement. (P.I. Hr’g Tr.
`
`249:4-14 (Ahn) (“Q: In every instance where you share Aegis’s confidential information --
`
`confidential information with someone outside of Aegis, you require those third parties to agree in
`
`writing that they will protect your confidential information? A: Yes, like NDA.”); Inzitari Dep.
`
`180:11-16 (“Q: So prior to sending someone outside of Aegis an AccelFix XT or a part of AccelFix
`
`XT for their inspection, you require the outside party to sign a non-disclosure agreement and a
`
`medical device agreement. A: Yes.”). These acknowledgments about how Aegis considers and
`
`treats its own expandable cage directly refute Aegis’s arguments that nothing about ProLift is
`
`confidential or a trade secret.
`
`
`
`7
`
`

`

`Confronted with Life Spine’s mountain of evidence and its own damning admissions,
`
`Aegis strains to manufacture “substantial questions” on appeal as to the secrecy and confidentiality
`
`of ProLift using recycled, high-level arguments that this Court already heard and rejected in earlier
`
`proceedings. The Court should reject them again here.
`
`First, Aegis claims that drawings included in Life Spine patents fatally undermine Life
`
`Spine’s position that the precise designs and specifications of ProLift’s key components are secret.
`
`(Dkt. 233 at 2-4.) But, as the Court found, Aegis presented “no evidence showing that the specific
`
`measurements and dimensions of the ProLift’s components and subcomponents are publicly
`
`available through patents or elsewhere.” (Dkt. 212 at 47.) Indeed, none of Life Spine’s patents lists
`
`any measurements for ProLift. Nor do any of them include drawings showing the precise designs
`
`of ProLift’s components that provide for its unique interconnectivity and expansion functionality.
`
`Notwithstanding these facts, Aegis contends that because the patents include drawings of
`
`the five basic components of the ProLift—its “upper endplate, lower endplate, anterior ramp,
`
`posterior ramp, and screw”—Life Spine essentially shared its detailed internal designs and
`
`specifications with the world since those drawings can purportedly be used to deduce such
`
`information. (Dkt. 233 at 3-4.) That is not true. As Life Spine showed through witness testimony
`
`at the hearing, it is not possible for anyone—including an experienced engineer—to derive the
`
`precise designs and specifications of ProLift’s internal components by looking at patent drawings
`
`or other basic renderings of the product. (Dkt. 212 at 6; P.I. Hr’g Tr. 72:18-73:7 (Butler) (“You
`
`could not, by looking at a picture, replicate this device.”); P.I. Hr’g Tr. 619:18-620:2 (Wolters)
`
`(“[Y]ou can’t just look at these [patent] images and pull up, you know, dimensions[.]”).) Aegis’s
`
`own Director of Research and Development, Jack Lee, acknowledged as much at the hearing in
`
`answering questions on direct examination about images of DePuy’s Concorde Lift:
`
`
`
`8
`
`

`

`P.I. Hr’g Tr. 856:9-15 (J. Lee).2
`
`
`
`
`
`As a telling case in point, Life Spine’s engineers—despite reviewing other companies’
`
`patents prior to developing ProLift—still needed more than three years and a painstaking trial-and-
`
`error process before meeting their testing targets, finalizing the device, and receiving FDA
`
`clearance. (Dkt. 212 at 4-5.) Aegis simply cannot help its case by repeatedly pointing, at the highest
`
`level of generality, to Life Spine’s patents.3
`
`
`2 Mr. Ashley’s testimony did not contradict the testimony of Life Spine’s witnesses and Aegis’s Jack
`Lee. (Dkt. 233 at 3-4.) On cross-examination, Mr. Ashley acknowledged that companies can use patent
`drawings as a “starting point” in the design and development of their own expandable cage. (P.I. Hr’g Tr.
`1327:22-1328:2.) He did not concede that engineers can use patent drawings, or even general specifications
`disclosed in companies’ marketing materials, to derive the precise angles, measurements, and design
`intricacies that are key to ensuring that an expandable cage interconnects in a way that holds the device
`together securely while allowing it to smoothly expand and lock into place inside a human spine. Indeed,
`as Life Spine’s Director of Engineering, Garrett Lauf, testified, not even marketing materials that list the
`length and width of the product are useful for such an exercise because those specifications are rounded
`approximations. (P.I. Hr’g Tr. 1462:6-16, 1465:8-1466:25 (explaining that you cannot replicate ProLift,
`even from a combination of patent drawings, marketing photos, and the basic width, length, and height
`specifications listed in ProLift’s surgical technique guide, because the specifications that Life Spine makes
`public (e.g., 10 millimeters, 12 millimeters) are rounded up or down from their actual measurements and
`therefore do not disclose ProLift’s precise specifications and would not allow a competitor to scale up or
`down to derive any precise specifications).)
`3 Aegis cites Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir. 1992),
`for the proposition that where a company has a patent on a product yet retains certain details about the
`product as its trade secret (as Life Spine does with ProLift), it is important for the company to identify the
`trade secret information with “[s]pecificity” in bringing its claims. (Dkt. 233 at 3.) Life Spine has done so
`here. Life Spine has long maintained that it is the “combination of design elements and specifications” that
`together achieve a secure yet flexible “interconnectivity” of the ProLift implant’s components that
`constitutes its trade secret. (See, e.g., Dkt. 123 at 17.) At the hearing, Life Spine identified this type of
`information as specifically as it could, showing during Mr. Ashley’s extensive expert testimony that all of
`
`
`
`9
`
`

`

`Second, Aegis contends that assuming that the detailed designs and specifications of
`
`ProLift’s key components are secret (which they are), Life Spine does not do enough to keep them
`
`secret under the law. Specifically, Aegis claims that Life Spine has made ProLift “publicly
`
`available” by (i) allowing industry participants to view devices for short periods of time and under
`
`supervision at conventions and (ii) selling devices to hospital customers for implantation during
`
`scheduled surgeries that are monitored by sales representatives bound by confidentiality and other
`
`agreements. (Dkt. 233 at 4.) Aegis’s arguments have no chance of prevailing on appeal.
`
`Life Spine does not disclose the precise designs and specifications of ProLift by allowing
`
`attendees at industry conventions to view the device. As discussed above, potential competitors
`
`cannot use patent drawings or pictures of ProLift to derive that kind of detailed information about
`
`the product’s inner workings. (See supra, at 8-10.) The same holds true with looking at a device
`
`for a brief period of time at a convention. Indeed, despite testifying that he observed a ProLift
`
`device at the 2017 NASS convention, Aegis’s CEO, Tony Ahn, did not testify that he walked away
`
`having gleaned the precise designs and specifications that he needed to create AccelFix-XT. (P.I.
`
`Hr’g Tr. 408:1-8.) Aegis does not suggest any reason, and there are none, why the Seventh Circuit
`
`would disagree with this Court and conclude that Life Spine made ProLift and detailed information
`
`about ProLift “publicly available” by temporarily displaying product samples at industry
`
`conventions under the close supervision of Life Spine employees. (Dkt. 212 at 6.)
`
`Likewise, Life Spine does not make the designs and specifications of ProLift “publicly
`
`available” by selling ProLift implants to hospitals for use during scheduled, supervised surgeries.
`
`As an initial matter, Aegis, too, sold its AccelFix devices to hospitals where they were implanted
`
`
`the components of ProLift and AccelFix-XT, including their internal dovetail-shaped interconnectivity
`mechanisms, have “very similar” designs and that the measurements of their internal components are either
`identical down to the same fraction of a millimeter or differ only by the width of a human hair. (Dkt. 183
`at 30-36.)
`
`
`
`10
`
`

`

`by doctors into patients’ spines. And yet, as described above, Aegis considers the detailed designs
`
`and dimensions of AccelFix-XT’s components to be confidential trade secret information. (See
`
`supra, at 7-8.) Aegis cannot have it both ways.
`
`Moreover, as the Court found, ProLift is not sold through to end handlers and users who
`
`are free to do anything they want with the product. (See Dkt. 212 at 36, 48 (“Aegis has not
`
`submitted any evidence suggesting that the public can freely access either the ProLift cage or
`
`installer.”).) Rather, ProLift is sold through distributors that have signed confidentiality and other
`
`agreements to hospitals that need the product to be implanted during a scheduled, supervised
`
`surgery for one of their patients. (Id. at 5-6, 48.) In other words, the hospitals that purchase ProLift
`
`are required to use the device in a planned surgery, the doctors who handle ProLift are required to
`
`implant the device in a patient who has a prescription for it, and the patients who need ProLift
`
`(naturally) are required to have the device inserted and fused with his or her spine to treat a spinal
`
`condition. To ensure that all of this is done in each case, Life Spine requires its distributors,
`
`including Aegis, to employ sales representatives who are subject to confidentiality and other
`
`agreements to “maintain oversight responsibilities for the ProLift prior to its use in surgery.” (Id.)
`
`As the Court found, these facts easily distinguish all of Aegis’s cases, which all involved
`
`situations where the products at issue were sold into a market where they could reasonably end
`
`up—and did in fact end up—in the hands of a potential competitor that could do anything it wanted
`
`with the product (including reverse engineer it). (Dkt. 212 at 48); see also AMP Inc. v.
`
`Fleischhacker, 1986 WL 3598, at *3, 8 (N.D. Ill. Mar. 18, 1986) (simple electrical conductors sold
`
`to a variety of companies without restriction); Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d
`
`1441, 1455 (11th Cir. 1991) (vending machines sold openly to distributors); Lummus Corp. v.
`
`Cherokee Fabrication Co., 2007 WL 9698294, at *4 (N.D. Ga. Jan. 23, 2007) (cotton ginning
`
`
`
`11
`
`

`

`equipment publicly sold “without any attempt to keep [it] secret”).
`
`Aegis’s response to this basic point of distinction is to try to gin up examples of how a
`
`ProLift implant might end up in the hands of someone not bound by a confidentiality agreement.
`
`For example, Aegis baselessly speculates that a doctor might remove a ProLift implant from a
`
`patient’s body and then either the doctor or patient might reverse engineer the product themselves
`
`or ship it to a company that could. (Dkt. 233 at 9.) This, of course, is an absurd hypothetical that
`
`Aegis has no evidence has ever happened. But, even if it did, Life Spine, as discussed above,
`
`presented evidence that distributors are required to oversee surgeries involving ProLift and
`
`maintain the confidentiality of the device (presumably by confiscating the implant under these
`
`circumstances). (Dkt. 212 at 48.) As the Court found, where reasonable measures like this are in
`
`place, the precise dimensions of ProLift’s components and how they interconnect are protectable
`
`trade secrets under the law. (Dkt. 212 at 47 (citing Thermodyne Food Serv. Prods., Inc. v.
`
`McDonald’s Corp., 940 F. Supp. 1300, 1305 (N.D. Ill. 1996).)4
`
`More fundamentally, to prevail on its trade secret misappropriation claims, Life Spine need
`
`only show that the information that it claims to be its trade secret is not “generally known” by
`
`potential competitors and that it has taken “efforts that are reasonable under the circumstances” to
`
`maintain the information’s secrecy. 765 ILCS 1065/2(d). Life Spine is not required to show that
`
`there is no possibility under any far-fetched set of circumstances (e.g., breaking into a hospital’s
`
`product storage room) that a third party might acquire one of its devices, or that it has made every
`
`
`4 Aegis claims that neither the Court nor Life Spine “identified any case where the physical dimensions
`and connectivity of a publicly sold product retain secrecy after such a sale.” (Dkt. 233 at 8.) For the reasons
`discussed above, and as the Court found, ProLift is not publicly sold: it is “impossible” for a member of the
`public to buy a ProLift device, (Dkt. 212 at 48), and its sale to hospitals for implantation in a patient is
`closely overseen by distributors bound by confidentiality agreements, (id.). But, Aegis is still wrong about
`the Court’s citations, which included the Thermodyne case in which a Northern District of Illinois court
`found that the plaintiff had a viable trade secret in the interconnectivity of the components in its publicly
`sold ovens. 940 F. Supp. at 1307.
`
`
`
`12
`
`

`

`conceivable effort to lock down its trade secret information regardless of the circumstances (i.e.,
`
`by requiring every patient to sign an NDA before being wheeled into surgery). For all of the
`
`reasons discussed above that the Court found compelling in issuing its Order, Life Spine has
`
`satisfied its burden.
`
`II.
`
`AEGIS WILL NOT SUFFER IRREPARABLE HARM ABSENT A STAY.
`
`Aegis claims that this Court “recognized the ‘real and serious’ harm Aegis would suffer as
`
`a result of an injunction” in terms of lost business and employee layoffs, (Dkt. 233 at 10), but that
`
`is a stretch. In fact, the Court explained that although lost business and layoffs constitute “real and
`
`serious” harm where the evidence shows they will result from an injunction, the evidence here is
`
`“relatively weak” that the Court’s Order will cause Aegis such harm. (Dkt. 212 at 62-64.) That
`
`conclusion was sound. As the Court found, the credible evidence shows that Aegis can exist, and
`
`has for ten years existed, as a business that sells several products but not its own expandable cages.
`
`(Id. at 62-63.) And the Court reiterated during a recent telephonic hearing that nothing in its Order
`
`prevents Aegis from replacing the