`
`United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 18-2900
`___________________________
`
`Farmers Edge Inc.; Farmers Edge (US) Inc.; Farmers Edge (US) LLC
`
`lllllllllllllllllllllPlaintiffs - Appellants
`
`v.
`
`Farmobile, LLC; Jason G. Tatge; Heath Garrett Gerlock; Randall Thomas Nuss
`
`lllllllllllllllllllllDefendants - Appellees
` ____________
`
`Appeal from United States District Court
`for the District of Nebraska - Omaha
` ____________
`
` Submitted: February 11, 2020
`Filed: August 17, 2020
`____________
`
`
`Before LOKEN, BENTON, and KELLY, Circuit Judges.
`____________
`
`
`KELLY, Circuit Judge.
`
`This case arose after Jason Tatge, Heath Gerlock, and Randy Nuss (the
`individual defendants) left a company called Crop Ventures to co-found Farmobile
`(the corporate defendant). Farmers Edge (FEI) is Crop Ventures’s successor-in-
`interest. Both FEI and Farmobile are agriculture technology companies that work on
`“precision agriculture” and the use of specialized data in farming. Believing the
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`

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`individual defendants took proprietary information they developed at Crop Ventures,
`FEI sued. As relevant here, FEI alleges the individual defendants’s behavior
`constituted a breach of explicit or implicit contracts with the company; that the
`defendants were obligated to assign to their employer the ownership rights of
`products they worked to develop; that the individual defendants breached their duty
`of loyalty to their employer; and that the individual defendants misappropriated trade
`secrets. The individual defendants filed counterclaims. On cross-motions for
`summary judgment, the district court1 denied in full FEI’s motion, and granted in part
`and denied in part Farmobile’s motion. Only FEI appeals, and we affirm.
`
`I.
`
`We review the district court’s grant of summary judgment de novo. See
`Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). We
`view all facts in the light most favorable to the non-moving party. Id. We affirm if
`the “movant shows that there is no genuine dispute as to any material fact and the
`movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
`
`Each of the individual defendants previously worked for Crop Ventures. Tatge
`was president of Crop Ventures from April to July 2013. He is a co-founder and CEO
`of Farmobile. Gerlock was an executive vice president of Crop Ventures, and also
`worked for Crop Ventures as an independent contractor. Gerlock is Farmobile’s
`Director of Products. Nuss worked for Crop Ventures as an independent contractor
`from April 2012 to August 2012. Later, he was a full-time employee of Crop
`Ventures from October 2012 to July 2013. Nuss is also a co-founder of Farmobile
`and its Director of Engineering.
`
`1The Honorable Joseph F. Battalion, United States District Judge for the
`District of Nebraska.
`
`-2-
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`

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`All three individual defendants left Crop Ventures in July 2013. By September
`2013, they had founded Farmobile. They also filed two U.S. Provisional Patent
`Applications that month. In April 2015, they filed a Canadian Patent Application.
`In June 2016, FEI filed the operative First Amended Complaint in federal district
`court. As relevant here, the court denied FEI’s motion for summary judgment, and
`in this appeal, FEI alleges a series of errors by the district court. We address each in
`turn.
`
` A. Contract Claims
`
` We first address FEI’s argument that the district court erred by concluding that
`none of the individual defendants breached an express or implied contract. FEI
`asserts that Nuss had an express contract with Crop Ventures. In the alternative, FEI
`contends that Nuss, Gerlock and Tatge had implied contracts with Crop Ventures.
`FEI alleges that each defendant breached his contract by failing to keep confidential
`Crop Ventures’s allegedly proprietary information. The individual defendants
`counter that their relationships with Crop Ventures were not governed by any
`contract, express or implied.
`
`1. Express Contract
`
`Before Nuss joined Crop Ventures as an independent contractor in April 2012,
`he signed an agreement with the company (the April 2012 Agreement). The April
`2012 Agreement is titled, “Confidentiality and Non-Competition Agreement,” and the
`introductory clause states, “THE AGREEMENT is made as of Monday, April 30,
`2012 between Crop Ventures, Inc. (‘Company’) and Randy Nuss (‘Contractor.’).”
`Nuss did not sign another agreement when he rejoined Crop Ventures as a full-time
`employee in October 2012. The April 2012 Agreement has clauses concerning
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`intellectual property, nonsolicitation, and nondisclosure of confidential information.
`Another clause states the agreement is not intended to operate as an employment
`contract.
`
`FEI argues the April 2012 Agreement continued to bind Nuss after his time as
`an independent contractor ended in August 2012, and that Nuss breached it by using
`at Farmobile certain information that FEI says is their confidential, proprietary
`information. But FEI presented no evidence indicating the April 2012 Agreement
`continued to apply after Nuss left the company for the first time in August 2012. The
`April 2012 Agreement specifically refers to Nuss as a “contractor,” and FEI concedes
`that Nuss had no role at the company after his term as an independent contractor and
`before he returned two months later as a full-time employee. There is nothing in the
`April 2012 Agreement stating it would come back into effect if Nuss rejoined the
`company. Nor is there evidence the parties intended for the April 2012 Agreement
`to govern Nuss’s later employment. Without any textual support in the April 2012
`Agreement, or evidence that the parties intended for the April 2012 Agreement to
`apply when Nuss returned to Crop Ventures as an employee in October 2012, FEI’s
`argument fails. Because no contract bound the parties during Nuss’s term of
`employment, Nuss was not in breach of an explicit contract.
`
`2. Implied Contract
`
`In the alternative, FEI argues that Gerlock and Tatge worked under an implied
`contract while at Crop Ventures, and that an implied contract also governed Nuss’s
`employment at Crop Ventures after October 2012. FEI alleges all three individual
`defendants breached their implied contracts by failing to assign to FEI the ownership
`rights of the products they later sought to patent at Farmobile.
`
`An implied contract is “an agreement ‘implied in fact,’ founded upon a meeting
`of minds, which, although not embodied in an express contract, is inferred, as a fact,
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`-4-
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`from conduct of the parties showing, in light of the surrounding circumstances, their
`tacit understanding.” Baltimore & O.R. Co. v. United States, 261 U.S. 592, 597
`(1923). We apply state-law principles of contract formation to determine whether an
`implied contract existed. See Teets v. Chromalloy Gas Turbine Corp., 83 F.3d 403,
`407 (Fed. Cir. 1996) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). In
`Nebraska, an implied contract arises “where the intention of the parties is not
`expressed in writing but where the circumstances are such as to show a mutual intent
`to contract.” Armstrong v. Clarkson Coll., 901 N.W.2d 1, 17 (Neb. 2017).
`
`Generally, “an individual owns the patent rights to the subject matter of which
`he is an inventor, even though he conceived it or reduced it to practice in the course
`of his employment.” Banks v. Unisys Corp., 228 F.3d 1357, 1359 (Fed. Cir. 2000).
`However, there are two exceptions that might assign ownership to the employer
`instead. First, “an employer owns an employee’s invention if the employee is a party
`to an express contract to that effect.” Id. However, as discussed, Nuss was not
`working under an express contract, and FEI does not appeal the district court’s
`determination that Gerlock and Tatge also did not have express employment
`contracts.
`
`The second exception is that when an employee is “hired to invent something
`or solve a particular problem, the property of the invention related to this effort may
`belong to the employer.” Id. FEI argues each individual defendant was hired to
`invent the products they worked on, which created an implied contract to assign
`ownership of the products to the employer. In the hired-to-invent context, courts
`“must examine the employment relationship at the time of the inventive work to
`determine if the parties entered an implied-in-fact contract to assign patent rights.”
`Teets, 83 F.3d at 407. The specific question is “whether the employee received an
`assignment on this occasion to invent.” Id. at 409.
`
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`To prevail on its hired-to-invent theory based on an implied contract, FEI must
`show that the employees were given a certain amount of specific direction from their
`employer. See, e.g., Shook v. United States, 238 F.2d 952, 954 (6th Cir. 1956)
`(“When an employee is hired to devote his efforts to a particular problem, to conduct
`experiments for a specifically assigned purpose, and an invention results from the
`results of that work, it belongs to the employer.”); Skycam LLC v. Bennett, 900 F.
`Supp. 2d 1264, 1276 (N.D. Okla. 2012) (“The primary factor courts consider in
`determining whether an employed to invent agreement exists is the specificity of the
`task assigned to the employee.”).
`
`FEI has not pointed to evidence in the record that Nuss, Gerlock, and Tatge
`“received an assignment on this occasion to invent.” See Teets, 83 F.3d at 409. And
`FEI has not shown there was a meeting of the minds sufficient to form an implied
`contract. Teets, on which FEI relies, is inapposite. There, Teets was “specifically
`directed” to develop a particular product. Id. at 408. The court concluded that,
`“[h]aving directed Teets to that task, compensated him for his efforts, paid for the
`refinement of the process, and paid for the patent protection, [the employer] owns the
`patent rights in the [product].” Id. FEI has not shown that any of the individual
`defendants was similarly “specifically directed” during their product-development
`process, so no implied contracts were created under the hired-to-invent doctrine.
`
`B. Duty of Loyalty
`
`FEI next argues the district court erred by concluding the individual defendants
`did not breach their duty of loyalty to their employer. Under Nebraska law, an
`employee has a duty of loyalty to their employer whether or not they have signed a
`covenant not to compete or a non-solicitation agreement. West Plains, LLC v.
`Retzlaff Grain Co., 870 F.3d 774, 786 (8th Cir. 2017). An employee owes this duty
`during the course of employment. Id. To be liable for a breach of this duty, the
`employee’s “disloyal conduct must be so harmful as to substantially hinder the
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`employer in the continuation of his business.” Id. (cleaned up). “Such conduct might
`include soliciting customers of the employer or forming one’s own competing
`business while still working for the employer.” Id.
`
`But an employee has a right to “make preparations to enter into competition
`with” their former employer. Cudahy Co. v. Am. Labs., Inc., 313 F. Supp. 1339,
`1346 (D. Neb. 1970). The law generally favors competition, and so requires
`“something more than preparation” on the part of the employee. Id. Courts consider
`whether the employee’s actions “substantially hinder the employer in the continuation
`of his business.” Id.
`
`FEI relies on West Plains to support its argument that the individual defendants
`breached their duty of loyalty. In that case, we upheld a jury verdict for breach of the
`duty of loyalty where the employees offered insider information to a competitor of
`their employer, and then resigned en masse to ensure their customers would follow
`them from their employer to the competitor. West Plains, 870 F.3d at 786–87. Seven
`employees were in breach of an agreement with their employer governing
`confidentiality and consulting, and four were paid for their work with the competitor
`while still employed by West Plains. Id.
`
`FEI does not point to any evidence showing the individual defendants breached
`their duty of loyalty to Crop Ventures. Although FEI relies on West Plains, Nuss,
`Gerlock, and Tatge’s actions do not compare to the behavior of the defendants in that
`case. For example, FEI does not argue Tatge, Gerlock, or Nuss solicited Crop
`Ventures’s competitors with insider information. Farmobile did not even exist when
`the three left Crop Ventures, so unlike the West Plains defendants, the individual
`defendants here could not have been paid by both companies at the same time. We
`agree with the district court that FEI failed to show the individual defendants
`breached their duty of loyalty to their employer.
`
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`C. Trade Secrets
`
`FEI argues that the district court erred by concluding the defendants did not
`misappropriate trade secrets within the meaning of the Nebraska Trade Secrets Act
`(NTSA) or the federal Defend Trade Secrets Act (DTSA). The individual defendants
`argue that FEI cannot maintain a claim for misappropriation because the alleged trade
`secret was not protectable within the meaning of these statutes.
`
`The NTSA defines a “trade secret” as
`
`information, including, but not limited to, a drawing, formula, pattern,
`compilation, program, device, method, technique, code, or process that:
`(a) Derives independent economic value, actual or potential, from
`not being known to, and not being ascertainable by proper means
`by, other persons who can obtain economic value from its
`disclosure or use; and
`(b) Is the subject of efforts that are reasonable under the
`circumstances to maintain its secrecy.
`
`Neb. Rev. Stat. § 87-502(4). The DTSA uses a similar definition of trade secrets,
`identifying “all forms and types of financial, business, scientific, technical, economic,
`or engineering information . . . .” 18 U.S.C. § 1839(3). Similar to the NTSA, the
`DTSA provides that “such information only qualifies as a trade secret if the owner has
`‘taken reasonable measures to keep such information secret’ and the information has
`economic value.” CMI Roadbuilding, Inc. v. Iowa Parts, Inc., 920 F.3d 560, 564 (8th
`Cir. 2019) (quoting 18 U.S.C. § 1839(3)).
`
`The district court concluded Crop Ventures did not take reasonable efforts to
`maintain the secrecy of the information it alleges was a trade secret. Crop Ventures
`shared the information with a third-party contractor without a confidentiality
`agreement and without other policies or practices for safeguarding secrets. The
`district court concluded this information was therefore not protected under the NTSA
`or DTSA.
`
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`On appeal, FEI has not challenged the finding that it shared the relevant
`information with a third-party who had no obligation to keep it confidential. As a
`result, we agree with the district court that Crop Ventures did not take reasonable
`steps to safeguard its trade secrets. Without such reasonable efforts or measures,
`there is no secret to protect, and FEI cannot maintain a claim under the NTSA or
`DTSA.
`
`D. Remaining Claims
`
`FEI mentions in passing three other arguments, but none is persuasive. First,
`FEI argues the district court erred by concluding the individual defendants did not
`breach a duty of good faith and fair dealing. Next, FEI alleges the district court erred
`by denying FEI declaratory judgment on the question of ownership because such a
`declaration “follows straightforwardly from the substantive rights to relief under the
`basis of implied-in-fact contracts, also known as the hired-to-invent doctrine.”
`Because FEI did not develop either argument in its opening brief, we decline to
`address them and consider them waived. See Sturgis Motorcycle Rally, Inc. v.
`Rushmore Photo & Gifts, Inc., 908 F.3d 313, 324 (8th Cir. 2018) (noting “a litigant
`may not advert perfunctorily to an argument, hoping that we will do its work for it by
`developing the argument and putting flesh on its bones”); Ahlberg v. Chrysler Corp.,
`481 F.3d 630, 634 (8th Cir. 2007) (stating “points not meaningfully argued in an
`opening brief are waived”). Finally, because FEI has presented no argument on
`appeal in support of its claim to the Canadian patent, we can find no error in the
`district court’s decision not to declare ownership of that patent.
`
`II.
`
`For the foregoing reasons, the judgment of the district court is affirmed.
`______________________________
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`