       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

     CARDIAQ VALVE TECHNOLOGIES, INC.,
            Plaintiff-Cross-Appellant

                            v.

      NEOVASC INC., NEOVASC TIARA INC.,
             Defendants-Appellants
            ______________________

                  2017-1302, 2017-1513
                 ______________________

    Appeals from the United States District Court for the
District of Massachusetts in No. 1:14-cv-12405-ADB,
Judge Allison Dale Burroughs.
                ______________________

               Decided: September 1, 2017
                ______________________

    JOHN B. SGANGA, JR., Knobbe, Martens, Olson & Bear,
LLP, Irvine, CA, argued for plaintiff-cross appellant. Also
represented by CHRISTY G. LEA, JOSHUA STOWELL; BRIAN
CHRISTOPHER HORNE, Los Angeles, CA.

    MATTHEW WOLF, Arnold & Porter Kaye Scholer LLP,
Washington, DC, argued for defendants-appellants. Also
represented by JAMES ALEXANDER KAISER, ROBERT
LEIDER, JOHN NILSSON; ROBERT REEVES ANDERSON, Den-
ver, CO; COLLEEN BAL, JOSHUA ALEC BASKIN, JOHN PAUL
2             CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



FLYNN, CHARLES TAIT GRAVES, Wilson, Sonsini, Goodrich
& Rosati, PC, San Francisco, CA; JOEL CHRISTIAN BOEHM,
Austin, TX.
                ______________________

      Before NEWMAN, O’MALLEY, and TARANTO, Circuit
                       Judges.
TARANTO, Circuit Judge.
     This is an action brought by CardiAQ Valve Technol-
ogies, Inc. against Neovasc Inc. and Neovasc Tiara Inc.
(jointly, Neovasc). Founded by cardiac surgeon Dr. Ar-
shad Quadri, and soon joined by engineer Brent Ratz,
CardiAQ set out to create a mitral-valve implant that
could be delivered to the heart by catheter rather than
open-heart surgery—a transcatheter mitral valve implant
(TMVI). After developing several prototypes, CardiAQ
engaged Neovasc to help with assembly of an aspect of the
device. The joint work ended after about one year, but
during that year, Neovasc secretly launched its own TMVI
project. Neovasc eventually secured a patent on its
TMVI, U.S. Patent No. 8,579,964, without naming anyone
from CardiAQ as co-inventors. Both firms are today
continuing their efforts to develop, test, and secure per-
mission to market their TMVIs.
    In this action, brought in the District of Massachu-
setts, CardiAQ alleged, as most relevant for purposes of
this appeal, that Neovasc had misappropriated several of
CardiAQ’s trade secrets and that Dr. Quadri and Mr. Ratz
should be added as co-inventors on Neovasc’s patent. At
trial, CardiAQ grouped its allegedly misappropriated
trade secrets into six categories. The jury found misap-
propriation by Neovasc as to three of them, and it award-
ed $70 million in damages to CardiAQ, which the district
court later enhanced by 30%, to $91 million. CardiAQ
Valve Techs., Inc. v. Neovasc Inc., No. 14-cv-12405-ADB,
2016 WL 6465411, at *3, *5–7 (D. Mass. Oct. 31, 2016).
CARDIAQ VALVE TECHNOLOGIES    v. NEOVASC INC.               3



The district court held that CardiAQ had also shown by
clear and convincing evidence that its employees were
entitled to be named as co-inventors on the ’964 patent.
Id. at *15–19. The court denied CardiAQ’s motion for
injunctive relief in part; specifically, it refused to require
Neovasc to suspend its TMVI project for eighteen months.
Id. at *7–10. On Neovasc’s appeal as to inventorship,
misappropriation, and damages, and CardiAQ’s cross-
appeal as to the denied injunctive relief, we agree with
the district court’s well-reasoned decisions and affirm.
                              I
    CardiAQ was formed in 2006 by Dr. Quadri and Mr.
Ratz with the goal of developing a prosthetic mitral heart
valve that could be implanted via a catheter entering the
body through a small incision in the patient’s leg, making
open-heart surgery unnecessary. The TMVI device con-
sists of a metal frame to which valve leaflets made from
animal tissue are sewn. In June 2009, Neovasc contacted
CardiAQ to advertise its pericardial tissue products and
services. Shortly thereafter, CardiAQ engaged Neovasc to
provide the tissue leaflets and sew them to CardiAQ’s
experimental frames.       Both parties signed a non-
disclosure agreement.
    Neovasc supplied CardiAQ with animal tissue leaflets
until April 2010. During the time the firms worked
together, CardiAQ disclosed detailed information about at
least three of its prototypes, called Rev. C, Rev. D, and
Rev. E, to Mr. Randy Lane, the principal Neovasc employ-
ee in the collaboration. In October 2009, after receiving
confidential information from CardiAQ, Mr. Lane started
developing a TMVI for Neovasc. The Chief Executive
Officer of Neovasc decided that Neovasc should not tell
CardiAQ it had begun work on a competing design, and
Neovasc kept its project secret from CardiAQ while they
worked together. Mr. Lane continued to work on both
projects simultaneously.
4              CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



    In May 2009, shortly after the collaboration ended,
Neovasc filed a provisional patent application that ulti-
mately issued as the ’964 patent, which describes and
claims a TMVI with many of the same features as Cardi-
AQ’s design. Neovasc plans to market its device under
the brand name “Tiara.” 1 CardiAQ discovered that Neo-
vasc was developing its own device in December 2011,
when Neovasc’s patent application was published. The
’964 patent issued in November 2013. CardiAQ brought
this suit against Neovasc in June 2014, seeking correction
of inventorship under 35 U.S.C. § 256 and damages and
injunctive relief for, among other things, misappropria-
tion of trade secrets and breach of the non-disclosure
agreement.
    Following a trial, the jury found that Neovasc had
breached the non-disclosure agreement but did not award
any damages for that breach. It found that Neovasc had
misappropriated trade secrets described in three of the six
categories defined in the jury instructions (Trade Secrets
4–6) and awarded CardiAQ $70 million in damages for
the misappropriation. When Neovasc moved for a new
trial as to liability and damages (it did not seek judgment
as a matter of law), the district court denied the motions.
CardiAQ, 2016 WL 6465411, at *10–14. The court also
ordered Mr. Quadri and Mr. Ratz to be added to the ’964
patent as co-inventors, id. at *15–19; enhanced CardiAQ’s
trade-secrets damages award by $21 million, id. at *5–7;
and denied CardiAQ’s request to enjoin Neovasc from
working on Tiara for eighteen months, id. at *7–9. The
district court later calculated and awarded pre-judgment
and post-judgment interest. CardiAQ, No. 14-cv-12405-
ADB, 2017 WL 215961, at *1–3 (D. Mass. Jan. 18, 2017).



    1   Tiara and CardiAQ’s device are currently in clini-
cal trials, as are at least two other transcatheter mitral
prostheses.
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.              5



    Neovasc appeals from the final judgment and post-
trial rulings.      Specifically, it challenges the co-
inventorship ruling and the district court’s refusal to
grant a new trial on the misappropriation of Trade Se-
crets 4–6 and the damages found by the jury. CardiAQ
cross-appeals the denial of an injunction requiring Neo-
vasc to suspend its TMVI program for eighteen months.
    Because the inventorship claim under 35 U.S.C. § 256
“aris[es] under . . . [an] Act of Congress relating to pa-
tents,” we have jurisdiction over this appeal, including the
pendent state-law claims. 28 U.S.C. § 1295(a)(1); see BBA
Nonwovens Simpsonville, Inc. v. Superior Nonwovens,
LLC, 303 F.3d 1332, 1336 (Fed. Cir. 2002).
                             II
                             A
    The overall determination of co-inventorship is a legal
one that we review de novo, but it is based on factual
findings reviewed for clear error when, as in this case,
made by the district court. Eli Lilly & Co. v. Aradigm
Corp., 376 F.3d 1352, 1362–63 (Fed. Cir. 2004); Ethicon,
Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed. Cir.
1998). To prevail under 35 U.S.C. § 256, the plaintiff
must show, by clear and convincing evidence, that the
unnamed but alleged co-inventor made a contribution to
the conception of at least one claim of the patent “that is
not insignificant in quality, when that contribution is
measured against the dimension of the full invention.”
Acromed Corp. v. Sofamor Danek Grp., Inc., 253 F.3d
1371, 1379 (Fed. Cir. 2001) (quoting Pannu v. Iolab Corp.,
155 F.3d 1344, 1351 (Fed. Cir. 1998)). It is not enough
under that standard if the alleged co-inventor “merely
explain[ed] to the real inventors well-known concepts
and/or the current state of the art.” Id. (quoting Pannu,
155 F.3d at 1351); see Ethicon, 135 F.3d at 1460. Here,
the parties have not differentiated Dr. Quadri from Mr.
Ratz in the co-inventorship dispute, and they have fo-
6              CARDIAQ VALVE TECHNOLOGIES     v. NEOVASC INC.



cused on claim 1, the only independent claim of Neovasc’s
patent.
     The jury in this case, having been asked to make an
advisory factual determination, found that Dr. Quadri
and Mr. Ratz contributed to the conception of the ’964
patent. The district court then made its own factual
findings and co-inventorship determinations and ordered
that the two CardiAQ researchers be added to the patent
as co-inventors. CardiAQ, 2016 WL 6465411, at *18–19.
The court found in particular that Mr. Lane, of Neovasc,
“had never designed a TMVI device prior to working on
the CardiAQ device”; CardiAQ had shared with Neovasc
“the designs, prototypes, and development history of its
device”; and the “progression of TMVI ideas sketched in
Mr. Lane’s notebook reflect[ed] a trend towards the de-
signs of CardiAQ.” Id. at *18. In nevertheless denying co-
inventorship, Neovasc argued that it alone conceived of
what it insisted is the only novel element of its claim 1—
namely, “anchoring the first trigonal anchoring tab
against a first fibrous trigone on a first side of an anterior
leaflet of the native mitral valve.” ’964 patent, col. 28,
lines 31–33. In response, the district court determined
that “even if Neovasc independently conceived of trigonal
anchoring tabs designed to anchor on the fibrous trigone,
CardiAQ still made a significant contribution to the
conception of the ’964 Patent.” CardiAQ, 2016 WL
6465411, at *18. Specifically, the district court found that
Mr. Ratz and Dr. Quadri had shown Mr. Lane the follow-
ing:
    [A] device that is delivered to a patient’s heart via
    a catheter, either through the apex of the heart or
    through the femoral vein; that once positioned in
    the patient’s native mitral valve, is allowed to ex-
    pand and engages the native anatomy on both the
    atrial and ventricular sides of the annulus and in-
    cludes an anterior side and a posterior side; and
    whose anchors extend between the native chordae
CARDIAQ VALVE TECHNOLOGIES       v. NEOVASC INC.              7



        tendinae, behind the free edge of the native mitral
        valve leaflets, and engage onto the native mitral
        annulus.
Id. 2
    On appeal, Neovasc again contends that those contri-
butions cannot entitle Dr. Quadri and Mr. Ratz to co-
inventor status because they were present in the prior
art. Neovasc faults the district court on two grounds. We
find neither persuasive.
    Neovasc’s main argument relies on a patent applica-
tion for what later issued as U.S. Patent No. 8,449,599 to
Chau, which it contends qualified as prior art to the ’964
patent, even though it was secret at the time of the col-
laboration, under now-repealed 35 U.S.C. § 102(e) (2006).
The district court rejected Neovasc’s reliance on Chau as a
ground for rejecting co-inventorship. It concluded that
the then-secret Chau reference did “not detract from
CardiAQ’s contribution to the ’964 Patent” because the
CardiAQ employees were “not ‘merely explain[ing] . . .
well-known concepts and/or the current state of the art,’”
but were sharing “in far more detail than they had ever
made public . . . the inventive process behind their TMVI
project” at a time when “no one had ever built a successful
transcatheter mitral valve device.” CardiAQ, 2016 WL
6465411, at *19 (some alterations in original) (quoting
Pannu, 155 F.3d at 1351).




        2CardiAQ also submitted evidence that one proto-
type disclosed to Neovasc was designed in such a way that
it would necessarily anchor on the fibrous trigone. The
district court did not rely on that evidence. See CardiAQ¸
2016 WL 6465411, at *16–17. We need not consider such
evidence, because we find no reversible error in the dis-
trict court’s basis of decision.
8              CARDIAQ VALVE TECHNOLOGIES     v. NEOVASC INC.



    Neovasc has not shown error in the district court’s
conclusion. Although we have stated that “[a] contribu-
tion of information in the prior art cannot give rise to joint
inventorship because it is not a contribution to concep-
tion,” Eli Lilly, 376 F.3d at 1362, Neovasc has not pointed
to any invocation of that proposition in a case involving
secret, § 102(e) art. Thus, stated in the context of public
prior art, the proposition just restates a fundamental
principle we have repeated about co-inventorship: the
mere contribution of public knowledge available to a
person of ordinary skill, which could readily have been
acquired by the named inventor independently, does not
make one a co-inventor. 3 It is that principle which gov-


    3   See Natron Corp. v. Schukra U.S.A., Inc., 558 F.3d
1352, 1357 (Fed. Cir. 2009) (“[T]he contribution of the
extender is insignificant when measured against the full
dimension of the invention of claim 11, not just because it
was in the prior art, but because it was part of existing
automobile seats, and therefore including it as part of the
claimed invention was merely the basic exercise of ordi-
nary skill in the art.” (emphasis added)); Caterpillar Inc.
v. Sturman Indus., Inc., 387 F.3d 1358, 1377 (Fed. Cir.
2004) (“[A] person will not be a co-inventor if he or she
does no more than explain to the real inventors concepts
that are well known [in] the current state of the art.”
(second alteration in original) (emphasis added) (quoting
Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1473 (Fed.
Cir. 1997)); Ethicon, 135 F.3d at 1460 (“One who simply
provides the inventor with well-known principles or
explains the state of the art without ever having ‘a firm
and definite idea’ of the claimed combination as a whole
does not qualify as a joint inventor.” (emphasis added));
Pannu, 155 F.3d at 1351 (holding someone an inventor,
even though he had publicly disclosed his contribution
more than a year prior to the collaboration, because he
was “doing more than simply providing [a co-inventor]
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.              9



erns. Neovasc has cited no case in which we have barred
co-inventorship, as a matter of law, just because the
contribution later appeared in the public domain, where
the ideas contributed were not contemporaneously availa-
ble to an ordinary skilled artisan and were otherwise
significant in producing the inventive conception at the
time it was completed. We have been presented no sound
reason for adopting such a legal bar now.
    Here, the presence of the CardiAQ-contributed fea-
tures in then-secret prior art does not, as a matter of law,
automatically disqualify the CardiAQ employees as
inventors. Neovasc does not offer reasons why, as a
matter of fact, the district court erred in finding that
CardiAQ’s employees contributed to conception. Neovasc
does not argue that the CardiAQ’s contributions were
insignificant when measured against the invention as a
whole. We therefore reject Neovasc’s argument that Chau
requires reversal of the co-inventorship ruling.
    Neovasc’s second challenge to the co-inventorship rul-
ing is that the district court erred in not addressing the
Solem reference, U.S. Patent App. Pub. No. 2006/0241745
(pub’d Oct. 26, 2006), which it alleges discloses all the
elements of CardiAQ’s alleged contributions. Given that


with well-known principles or explaining the state of the
art; he was contributing his ideas concerning the snag-
resistant elements to a total inventive concept.” (emphasis
added)); Hess v. Advanced Cardiovascular Sys., Inc., 106
F.3d 976, 981 (Fed. Cir. 1997) (no co-inventorship when
putative co-inventor was “doing nothing more than ex-
plaining to the inventors what the then state of the art
was,” where “most, if not all, of his discussion with them
[was] telling them what was available in the marketplace
by way of product,” and “[t]he principles [he] ex-
plained . . . were well known and found in textbooks.”
(emphasis added)).
10             CARDIAQ VALVE TECHNOLOGIES     v. NEOVASC INC.



Neovasc asserts that its only inventive contribution was
deliberate trigonal anchoring, its argument requires it, at
a minimum, to have shown that the other elements of the
claim were not only present but combined in Solem:
Neovasc does not dispute that they were combined in
CardiAQ’s disclosures to Neovasc or that the combination
of individually known elements can be patentable. See
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418–19 (2007)
(noting that inventions may be composed entirely of
elements present in the prior art, the combination being
the patentable invention); Veritas Techs. LLC v. Veeam
Software Corp., 835 F.3d 1406, 1414–15 (Fed. Cir. 2016).
    Neovasc did not adequately present an argument
about Solem along those lines to the district court, and so
the district court cannot be faulted for not addressing
Solem. Neovasc only briefly mentioned Solem in its brief
to the district court on CardiAQ’s inventorship claim,
Defendant Neovasc Inc.’s and Neovasc Tiara Inc.’s Brief
Regarding CardiAQ’s Claim for Inventorship Under 35
U.S.C. § 256 at 21, 25, CardiAQ, No. 1:14-cv-12405-ADB
(D. Mass. July 29, 2016), ECF No. 535, at the oral argu-
ment on the inventorship claim, Motion Hearing Tran-
script at 76:20–77:1, CardiAQ, No. 1:14-cv-12405-ADB (D.
Mass. Aug. 25, 2016), ECF No. 559, and at the trial, J.A.
21889–90. At most, Neovasc argued that Solem disclosed
a particular anchoring mechanism—anchoring behind the
leaflets to engage the mitral annulus. Neovasc did not
argue that Solem disclosed all the elements allegedly
contributed by CardiAQ, including a device with an atrial
skirt, a ventricular skirt, and a plurality of valve leaflets,
much less in combination. Having found that CardiAQ
contributed the combination of those features, the district
court was not obliged to address Neovasc’s undeveloped
CARDIAQ VALVE TECHNOLOGIES    v. NEOVASC INC.              11



argument that another reference disclosed one of those
features. 4
                              B
     When the jury was given CardiAQ’s claim of trade-
secret misappropriation, the parties agreed on a formula-
tion of the allegedly misappropriated trade secrets as a
list of six items (Trade Secrets 1–6)—a list on which some
of the individual items indisputably covered alternative
possibilities, i.e., actually covered groups of possible
secrets. Neovasc did not object to that listing, or to the
precise definitions given to the jury of each item, or to the
verdict form that asked the jury to decide on misappro-
priation simply as to each of the six items, without fur-
ther refinement. The jury found no misappropriation of
Trade Secrets 1–3, which covered CardiAQ’s Rev. C, Rev.
D, and Rev. E prototypes respectively. It found misap-
propriation of Trade Secrets 4–6.
    Neovasc did not move for judgment as a matter of law
on CardiAQ’s claims for misappropriation of Trade Se-
crets 4–6; it sought only a new trial on the ground that
the jury’s verdict was “contrary to law and against the
great weight of the evidence.” J.A. 4413. The district
court denied the motion. CardiAQ, 2016 WL 6465411, at
*12–14. We review the denial of the motion for a new
trial for abuse of discretion. Siemens Med. Sols. USA, Inc.
v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269,
1277 (Fed. Cir. 2011); Whitfield v. Melendez-Rivera, 431
F.3d 1, 9 (1st Cir. 2005). We can reverse the district
court’s denial “only if ‘the verdict is so seriously mistaken,



    4   In a footnote, Neovasc points to two other refer-
ences that it argues disclose every allegedly CardiAQ-
contributed element. Appellants’ Br. 28 n.3. That argu-
ment is forfeited. SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).
12              CARDIAQ VALVE TECHNOLOGIES      v. NEOVASC INC.



so clearly against the law or the evidence, as to constitute
a miscarriage of justice.’” Astro-Med, Inc. v. Nihon
Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009) (quoting
Levesque v. Anchor Motor Freight, Inc., 832 F.2d 702, 703
(1st Cir. 1987)).
                               1
    Based on Exhibit 1157, which the parties agreed
should be presented to the jury as the statement of the
alleged trade secrets, the district court summarized Trade
Secret 4 as follows:
     A transcatheter replacement mitral valve pros-
     thesis design that includes an expandable metal
     frame for supporting a tricuspid, one-way valve,
     the expandable metal frame sized for placement
     in a human native mitral valve space, where the
     prosthesis is configured for mitral valve implanta-
     tion without relying exclusively on radial force but
     rather by engaging the native mitral valve annu-
     lus on the atrial side of the native mitral valve
     and by anchoring the prosthesis on the ventricu-
     lar side of the native mitral valve annulus, where
     the prosthesis includes one or more of the follow-
     ing additional features: a. Ventricular Anchors
     that Extend Between the Chordae, Capture the
     Native Leaflets, and Engage the Ventricular Side
     of the Native Mitral Annulus . . . b. Variable Strut
     Dimensions . . .    c. Lower    Atrial    Profile . . .
     d. Larger Ventricular Cross-Sectional Dimen-
     sion . . . e. V-Shaped Atraumatic Anchors . . .
     f. Mushroom-Shaped Locking Tabs[.]
CardiAQ, 2016 WL 6465411, at *12. Neovasc makes
three arguments as to why it deserves a new trial on
Trade Secret 4. We reject the arguments.
    First, Neovasc contends that the description of Trade
Secret 4—in the above summary, or in the lengthier
CARDIAQ VALVE TECHNOLOGIES    v. NEOVASC INC.              13



Exhibit 1157 recitation given to the jury—is insufficiently
specific to identify a protectable trade secret. The district
court noted that “Neovasc waited until after trial to argue
that CardiAQ’s disclosures were somehow inadequate,”
CardiAQ, 2016 WL 6465411, at *13 n.6, and CardiAQ
points out that not only did Neovasc not object to the
district court’s instruction to the jury that Exhibit 1157
described CardiAQ’s trade secrets, Neovasc itself request-
ed that Exhibit 1157 be so used, see Fed. R. Civ. P. 51;
Putnam Res. v. Pateman, 958 F.2d 448, 456–57 (1st Cir.
1992) (explaining that failure to object to jury instructions
typically precludes future challenges to those instructions
and “a party cannot be permitted to complain about
invited errors”). Nevertheless, the district court conclud-
ed that “CardiAQ identified trade secret 4 with sufficient
detail, describing its TMVI design with particularity.”
CardiAQ, 2016 WL 6465411, at *13 n.6. We agree.
     Trade Secret 4 is not merely a collection of features—
it is a collection of devices, each of which must contain
what is described in the first half of the trade secret,
together with one or more of the six listed additional
features. That Trade Secret 4 may describe 63 (i.e., 26 – 1)
separate devices does not mean that there is a lack of
specificity. Each of the 63 devices is specific. Indeed,
Neovasc does not even argue that any of the six features,
or the possible combinations one or more of them with the
common device features, is insufficiently specified. 5



    5    Neovasc identifies no specificity problem with any
of the six features at issue here akin to the problems with
the trade secrets judged to be too vague in the cases
Neovasc cites. Sutra, Inc. v. Ice. Express, EHF, No. 04-
11360-DPW, 2008 WL 2705580, at *4 (D. Mass. July 10,
2008) (criticizing the specificity of “‘the operation, appear-
ance, features and functionality of the Control Agent and
Reservation Control interfaces and modules’ of [plaintiff’s]
14             CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



CardiAQ could have listed each of the 63 devices sepa-
rately for the jury; Trade Secret 4 just simplified the
presentation to the jury. That grouping, to which Neovasc
agreed, introduced no specificity problem.
    Neovasc also argues that the combination of known
elements cannot be a protectable trade secret, Appellants’
Br. 32 (citing Strategic Directions Grp., Inc. v. Bristol-
Meyers Squibb Co., 293 F.3d 1062 (8th Cir. 2002) (holding
that a subset of a publicly available collection of market
research questions is not secret)). But Strategic Direc-
tions, interpreting Minnesota law, stands for no such
broad proposition. Indeed, it acknowledged that some
combinations of known elements can be secret and found
only that the plaintiff had not shown anything secret
about the combination of public survey questions at issue.
Strategic Directions, 293 F.3d at 1065. Neovasc did not
object to this jury instruction:
     A trade secret can exist in a combination of char-
     acteristics and components, even if some or all of
     the characteristics and components are in the
     public domain, as long as the unified process, de-
     sign, and operation of the combination constitutes
     a unique combination that is a trade secret.




AirKiosk System”); Staffbridge, Inc. v. Gary D. Nelson
Assocs., Inc., No. 02-4912-BLS, 2004 WL 1429935, at *1–4
(Mass. Super. Ct. June 11, 2004) (ordering plaintiffs to
identify what in their entire program’s source code was
being claimed as a trade secret); Jostens, Inc. v. Nat’l
Comput. Sys., Inc., 318 N.W.2d 691, 697 (Minn. 1982) (“It
is not always easy to follow Jostens’ contentions because
its claim of a trade secret is rather elastic. At times, the
claim appears to include the entire CAD/CAM system; at
other times, something less.”).
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.             15



J.A. 22393. And Neovasc shows no error in the district
court’s finding that the combination of these features was
not well-known in the mitral valve industry, as there had
never been a successful mitral valve before. CardiAQ,
2016 WL 6465411, at *9, *13. Neovasc’s expert admitted
that the full combination of features identified in Trade
Secret 4 was not disclosed anywhere in the prior art. J.A.
22020–21. Thus, we agree with the district court that
“the jury could reasonably find that a TMVI device con-
taining” even some known features was a protectable
trade secret. CardiAQ, 2016 WL 6465411, at *13.
    Finally, Neovasc argues that Trade Secret 4 is not a
“unified process or device” and so is not protectable under
Massachusetts trade-secret law. Appellants’ Br. 30; see
J.A. 22393 (instruction speaking of a “unified process,
design, and operation”). But Neovasc did not ask for any
further clarification of what is required to be a “unified
process.” And it has not identified any such Massachu-
setts-law requirement that makes the jury’s determina-
tion here improper or that precludes a finding of a
“unified process” in this case. It cites Peggy Lawton
Kitchens, Inc. v. Hogan, 466 N.E.2d 138 (Mass. App. Ct.
1984), for the proposition that “Peggy Lawton Kitchens
did not have a trade secret in all chocolate chip cookies or
in all cookies that used one or more enumerated ingredi-
ents,” but only “its unique, holistic process that produces
a distinctive cookie.” Appellants’ Br. 39. But that case
held that a particular ingredient (nut flour) can be pro-
tected if its addition to cookies is original. Peggy Lawton
Kitchens, 466 N.E.2d at 140. And it does not preclude a
determination, in this quite different context, that each of
the devices covered by Trade Secret 4—each one a mitral
valve implant—is anything but a “unified” device. We
therefore agree with the district court that “the jury could
reasonably conclude that” Trade Secret 4 “was both a
secret and a unified process.”          CardiAQ, 2016 WL
6465411, at *13.
16             CARDIAQ VALVE TECHNOLOGIES     v. NEOVASC INC.



                              2
     The district court summarized Trade Secret 5 as “the
CardiAQ Mandrel, a tool created by CardiAQ to help
construct its TMVI device.” Id. at *14. Neovasc argues
that CardiAQ can have no protection for the mandrel
because it disclosed the mandrel in a published patent
application before Neovasc used the device. Appellants’
Br. 39–40; see On-Line Techs., Inc. v. Bodenseewerk Per-
kin-Elmer GMBH, 386 F.3d 1133, 1141 (Fed. Cir. 2004)
(“After a patent has issued, the information contained
within it is ordinarily regarded as public and not subject
to protection as a trade secret.”). In denying Neovasc’s
motion for a new trial, the district court observed that
“[t]he patent application . . . did not provide as much
information as Neovasc received by holding the physical
Mandrel and by viewing CAD [computer aided design]
files for the Mandrel that were not included in any patent
applications.” CardiAQ, 2016 WL 6465411, at *14.
    We agree with the district court. It is clear from the
confidential materials included in the description of Trade
Secret 5 that it includes precise dimensions, manufactur-
ing details, and materials. The patent does not disclose
this information. Neovasc admitted that its employee
used the physical mandrel, with its evident dimensions
and materials, for the benefit of another customer. There-
fore, it was not an abuse of discretion for the trial court to
deny Neovasc’s motion for a new trial with respect to
Trade Secret 5.
                              3
   The district court summarized Trade Secret 6 as fol-
lows:
     The development history of CardiAQ’s transcathe-
     ter replacement mitral valve prosthesis design,
     including the following: CardiAQ created an aortic
     valve prosthesis prototype designated as Rev. 4,
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.            17



   which CardiAQ evaluated and tested. CardiAQ
   created a mitral valve prosthesis design designat-
   ed as Rev. A. That Rev. A design evolved into a
   prototype designated as Rev. B, which CardiAQ
   evaluated and tested. That Rev. B design evolved
   into a prototype designated as Rev. C, which
   CardiAQ evaluated and tested. That Rev. C de-
   sign evolved into a prototype designated as Rev.
   D, which CardiAQ evaluated and tested. That
   Rev. D design evolved into prototypes designated
   as the Rev. E series (including Rev. E2 through
   Rev. E4), which CardiAQ evaluated and tested.
CardiAQ, 2016 WL 6465411, at *14.
    Without objection from Neovasc, the jury was in-
structed that a trade secret has to be “a process or device
for continuous use in the operation of the business.” J.A.
22392; see Restatement (First) of Torts § 757 cmt. b
(1939). Neovasc argues that the jury could not find that
Trade Secret 6—the “development history of CardiAQ’s
transcatheter replacement mitral valve prosthesis de-
sign,” etc.—meets the requirement of continuous use. It
rests that contention on a characterization of the devel-
opment history as “negative know-how”—knowledge of
what not to do—and the assertion that such negative
know-how is not a protectable trade secret under Massa-
chusetts law.
     The district court properly denied Neovasc’s argument
for a new trial on this ground. The court explained that
the jury had “a sufficient basis to conclude that CardiAQ
continues to use trade secret 6 in the operation of its
business” because, “[a]s it develops its TMVI device and
works towards FDA approval, CardiAQ continues to use
its past discoveries about what works and what does not,”
and “[i]ts development history has influenced the current
design of its TMVI device, and will likely influence any
future modifications to it.” CardiAQ, 2016 WL 6465411,
18             CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



at *14. That determination is supported by the evidence.
J.A. 21061–62, 21066–68, 21070–72, 21116–17. Indeed,
the district court cited a shareholder presentation by
Neovasc stating that its “[i]ntimate understanding of
what has and has not worked so far in the development of
(percutaneous) valves” gave it a competitive advantage.
CardiAQ, 2016 WL 6465411, at *14 (alteration in origi-
nal) (quoting J.A. 1328 and citing J.A. 1301). The district
court also held that “CardiAQ presented sufficient evi-
dence that Mr. Lane used both the dead ends and break-
throughs in CardiAQ’s development history to shape the
design of the Tiara and to accelerate its development.”
Id.; see also id. at *18 (citing J.A. 21541–44).
     The definition of Trade Secret 6, and the evidence and
findings as to continuous use, are not limited to
knowledge of what does not work—the described devel-
opment history includes features that did work and were
carried forward. We therefore need not consider whether
a pure “negative know-how” trade secret would be unpro-
tectable under Massachusetts law. Indeed, Neovasc bases
its assertion entirely on an unpublished, non-precedential
1971 Massachusetts trial-court decision that actually
found the trade secret at issue to be protectable. Materi-
als Dev. Corp. v. Atl. Advanced Metals, Inc., Eq. No.
30837, 1971 WL 16675, at ¶¶ 97, 101 (Mass. Super. Ct.
Nov. 11, 1971). It is hardly clear that the dictum in that
decision is the best view of how Massachusetts would now
decide a negative-know-how case. See Andrew Robinson
Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st
Cir. 2008) (where there is no controlling decision of the
state’s highest court, “the federal court must make an
informed prophecy as to the state court’s likely stance,” by
drawing upon “a variety of sources that may reasonably
be thought to influence the state court’s decisional calcu-
lus”); see also Corporate Techs., Inc. v. Harnett, 731 F.3d
6, 11 (1st Cir. 2013) (explaining that Massachusetts
Superior Courts do not have precedential value in this
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.             19



enterprise). Regardless, at most the 1971 decision reach-
es purely negative know-how; it does not deny trade-
secret coverage in a situation, like the present one, where
the trade secret is not so limited. Therefore, it was not an
abuse of discretion for the district court to hold that the
verdict of misappropriation was not against the clear
weight of the evidence.
                             C
    CardiAQ’s damages expert, Mr. Wagner, testified that
the trade-secret damages should be a reasonable royalty
that Neovasc would have agreed to pay in a hypothetical
negotiation occurring in 2010. In challenging the damag-
es testimony, Neovasc complains that Mr. Wagner im-
properly relied on (1) 2015 data for the 2010 hypothetical
negotiation; (2) the assumption that Neovasc received an
eighteen-month head start from its trade-secret misap-
propriation; and (3) valuations of Trade Secrets 2 and 3,
which the jury found not to have been misappropriated, in
calculating damages for the misappropriation of Trade
Secrets 4 and 6. 6 Neovasc seeks a new trial, arguing that
the testimony was inadmissible and in any event ren-
dered the damages award against the weight of the evi-
dence. Appellants’ Br. 45–46. We disagree.
                             1
    The district court did not err in allowing Mr. Wagner
to rely on valuations of Tiara from 2015 in making his
royalty calculation. In the patent context, to which both
parties refer in making their arguments about trade-
secret damages, we and the Supreme Court have ap-
proved of appropriate uses of ex-post evidence. E.g.,


   6    No damages were sought for the misappropriation
of Trade Secret 5, see CardiAQ, 2016 WL 6465411, at *11
n.3; J.A. 21345, so we attribute none of the award to that
trade secret.
20            CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



Lucent Techs., Inc. v. Gateway, Inc.¸ 580 F.3d 1301, 1333
(Fed. Cir. 2009) (“[T]he hypothetical negotiation analysis
‘permits and often requires a court to look to events and
facts that occurred thereafter and that could not have
been known to or predicted by the hypothesized negotia-
tors.’” (quoting Fromson v. Western Litho Plate & Supply
Co., 853 F.2d 1568, 1575 (Fed. Cir. 1988)); see Sinclair
Ref. Co. v. Jenkins Petroleum Process Co., 289 U.S. 689,
698 (1933). Mr. Wagner offered a reasonable basis for
relying on valuations from 2015, explaining that, in 2010,
there was no external or internal valuation of Tiara,
which was only a glimmer in Neovasc’s eye. The 2015
information was more specifically focused on Tiara than
any information from 2010. Moreover, Mr. Wagner in fact
looked at value estimates essentially contemporaneous to
the 2010 hypothetical valuation. He relied on Neovasc’s
Chief Executive Officer’s testimony about his sense of
value in 2009—namely, that he “knew the potential for a
TMVI market was worth billions of dollars” and “knew
there was a potential that a large company, such as
Medtronic, could acquire a TMVI product for hundreds of
millions of dollars.” J.A. 21654; see J.A. 21305 (Mr.
Wagner relying on that testimony).
    Neovasc had the opportunity to cross-examine Mr.
Wagner on whether he had adequately discounted figures
from 2015 to produce a 2010 value. The jury ultimately
awarded CardiAQ only $70 million of the $90 million Mr.
Wagner testified was appropriate. The district court
concluded: “The jury was instructed that the damages
award should reflect what Neovasc would have paid in
2010 . . . , and there is no reason to believe the jury
strayed from that instruction.”       CardiAQ, 2017 WL
215961, at *2 (district court’s unappealed prejudgment
interest award). We do not find an abuse of discretion by
the district court, in admitting the evidence or denying a
new trial, based on Neovasc’s challenges to Mr. Wagner’s
testimony relating to the use of 2015 evidence.
CARDIAQ VALVE TECHNOLOGIES    v. NEOVASC INC.              21



                              2
    Neovasc next argues that Mr. Wagner’s testimony as
to the value of Trade Secrets 4 and 6 is unsupported
because he had an insufficient evidentiary basis for his
assumption that Trade Secrets 4 and 6 solved 50% of the
pertinent challenges faced by Neovasc in developing a
successful TMVI device—challenges identified in an
article by Ole De Backer. CardiAQ’s Mr. Ratz testified
that “at least 50 percent” of the challenges identified in
the De Backer article were successfully addressed by “the
Rev. E design,” i.e., Trade Secret 3. J.A. 20676–79. Yet
the jury found that Neovasc did not misappropriate Trade
Secret 3. According to Neovasc, the jury’s rejection of the
Trade Secret 3 claim means that the 50% valuation of
Trade Secrets 4 and 6 is unsupported.
    Neovasc did not move to set aside the verdict on the
ground of inconsistency. Moreover, the jury awarded one
sum of damages for both Trade Secrets 4 and 6, which,
given Mr. Wagner’s testimony, we take as awarded for
each of those trade secrets, but awarded just once to avoid
duplication. 7 Neovasc did not contend that Trade Secret
6, as opposed to Trade Secret 4, is too closely related to
Trade Secret 3 to support a damages award where Trade
Secret 3 was found not to be misappropriated. Neovasc
argued simply that the jury’s valuation of Trade Secrets 4
and 6 was contrary to the evidence under the demanding
new-trial standard for such an evidence-focused chal-
lenge.



    7   Mr. Wagner clearly explained that the total dam-
ages figure was $90 million, that the jury could award
that figure by finding misappropriation of Trade Secrets 1
and 2 together, or 3, 4, or 6 separately, but that if the jury
found misappropriation of multiple trade secrets, it
should not add damages for each theory of liability.
22            CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



     The district court properly rejected the challenge.
CardiAQ, 2016 WL 6465411, at *11–12. Mr. Wagner
relied on the underlying testimony of Mr. Ratz, with his
intimate knowledge of the TMVI challenges, as to the
values of the particular trade secrets, as he was entitled
to do. See Williams v. Illinois, 567 U.S. 50, 57 (2012)
(expert may rely on facts established by other witnesses).
Mr. Ratz testified that each of Trade Secrets 3, 4, and 6
was of equal value and that Trade Secrets 1 and 2 togeth-
er were worth the same as the others separately. J.A.
20640; see also CardiAQ, No. 14-cv-12405-ADB, 2016 WL
8203206, at *3 (D. Mass. Apr. 25, 2016) (motion in limine
allowing Dr. Ratz to testify as an expert on CardiAQ’s
damages); J.A. 20667 (entering Dr. Ratz as an expert in
TMVI devices over objection). At least because the vari-
ous trade secrets are overlapping, there is no identified
inherent inconsistency in testimony that Trade Secret 3 is
different from Trade Secrets 4 and 6, but each would solve
50% of the De Backer challenges and is worth the same
amount. Neovasc was free to put on evidence that partic-
ular trade secrets, such as Trade Secrets 4 and 6, would
be worth less than Trade Secret 3 and that Mr. Wagner
did not fairly account for that difference. In the circum-
stances presented, the district court did not abuse its
discretion in denying Neovasc’s motion for a new trial on
this ground.
                            3
    Nor was Neovasc entitled to a new trial on the ground
that there was no support for Mr. Wagner’s assumption
that Neovasc gained an eighteen-month head start by its
misappropriation. Mr. Ratz testified that it took CardiAQ
around twenty months to develop its secrets. He also
testified that “based on [his] experience in the TMVI
industry” it would have taken “at least 18 months to get
from scratch to where we had gotten to during that peri-
od,” after noting that “[t]here’s a number of companies in
the space competing, you know, bigger than Neovasc,
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.                23



more resources than Neovasc, more experience in the
heart valve space, that never got to a successful design.”
J.A. 20685–86. It is not an unreliable methodology to use
CardiAQ’s timeline and Mr. Ratz’s experience-based
opinion on how fast any company could possibly work as a
basis for estimating Neovasc’s head start. Neovasc was
free to submit opposing testimony tending to show that
Neovasc could have worked faster. See CardiAQ, 2016
WL 8203206, at *3. The district court properly denied
Neovasc’s request for a new trial on this ground.
                             D
     The district court denied CardiAQ’s request for an in-
junction that would prohibit Neovasc from working on its
device for eighteen months. The court explained that
“[t]he proposed 18-month suspension would be duplicative
of the monetary relief, and is not warranted given the
uncertainty in the TMVI market, the impact the injunc-
tion would have on Neovasc, and the public’s interest in
having access to a potentially life-saving technology.”
CardiAQ, 2016 WL 6465411, at *7. We reject CardiAQ’s
challenge to the denial of the requested injunction.
    “According to well-established principles of equity,”
the Supreme Court has explained,
   a plaintiff seeking a permanent injunction must
   satisfy a four-factor test before a court may grant
   such relief. A plaintiff must demonstrate: (1) that
   it has suffered an irreparable injury; (2) that rem-
   edies available at law, such as monetary damages,
   are inadequate to compensate for that injury;
   (3) that, considering the balance of hardships be-
   tween the plaintiff and defendant, a remedy in
   equity is warranted; and (4) that the public inter-
   est would not be disserved by a permanent injunc-
   tion. The decision to grant or deny permanent
   injunctive relief is an act of equitable discretion by
24              CARDIAQ VALVE TECHNOLOGIES    v. NEOVASC INC.



     the district court, reviewable on appeal for abuse
     of discretion.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006) (citations omitted). We see no abuse of discretion
here.
    CardiAQ argues that the text of its non-disclosure
agreement with Neovasc conclusively establishes that its
breach would result in irreparable harm not compensable
by money damages. The agreement provides:
     The parties understand and acknowledge[] that
     money damages would not be sufficient remedy
     for any breach of this Agreement and that a party
     shall be entitled to equitable relief (including, but
     not limited to, an injunction or specific perfor-
     mance) in the event of any breach of the provi-
     sion[s] of this Agreement.
J.A. 1285, quoted in Cross-Appellant’s Br. 71. But it is
not an abuse of discretion for the district court to examine
the facts to determine whether a particular injunction is
warranted—considering, among other things, the public
interest, over and above the parties’ interests. See
Baker’s Aid v. Hussmann Foodservice Co., 830 F.2d 13, 16
(2d Cir. 1987); see also JL Powell Clothing LLC v. Powell,
590 F. App’x 3, 5 (1st Cir. 2014). Indeed, even if the non-
disclosure agreement requires some injunction, it does not
say what injunction is warranted or why the particular
injunction CardiAQ seeks is appropriate.
     Apart from relying on the non-disclosure agreement,
CardiAQ’s opening brief relies for claim of irreparable
harm only on asserted harm from having to compete with
Neovasc for clinical-trial partners, a competition that
“could delay CardiAQ’s time to market.” Cross Appel-
lant’s Br. 75. But CardiAQ has not shown facts about
competition for clinical-trial partners sufficient to compel
a finding of non-speculative, much less irreparable, harm.
CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.               25



    Nor has CardiAQ shown error in the district court’s
determination that the requested injunction would be
“duplicative” of its monetary award, i.e., that the damages
awarded already effectively (though perhaps not perfect-
ly) compensate CardiAQ for the eighteen-month harm
that is the basis for its request for a project-suspension
injunction. See CardiAQ, 2016 WL 6465411, at *7–8.
CardiAQ argues that it still has not been compensated for
the breach of the non-disclosure agreement because the
jury awarded it no damages for that breach. But Cardi-
AQ’s damages expert explicitly stated the following:
   [T]he damages, if liability is proven on any of
   these causes of action, is $90 million. So if the ju-
   ry finds that Trade Secrets No. 1 and 2 have been
   misappropriated, the number is $90 million. If
   they find either Trade Secret 3, 4, or 6 have been
   misappropriated, the number is still $90 million.
   If they find that Neovasc breached the contract, it’s
   $90 million. . . . If they find liability under more
   than one of these theories, the number doesn’t go
   up. I just think these are all independent legal
   ways of recovering the sum of money.
J.A. 21293–94 (emphasis added). That testimony is a
sufficient basis for rejecting CardiAQ’s contention that,
even if the requested injunction would be duplicative of
damages for trade-secret misappropriation, it would not
be duplicative of (the same) damages for contract breach.
    While CardiAQ makes arguments as to why the bal-
ance-of-the-hardships and public-interest factors should
not outweigh Neovasc’s admission in the non-disclosure
agreement of irreparable harm, these arguments do not
show error in the district court’s factual findings on these
factors or its overall weighing of equities. Especially in
light of CardiAQ’s failure to show irreparable harm or
26             CARDIAQ VALVE TECHNOLOGIES   v. NEOVASC INC.



why the remedies are not duplicative, the district court
did not abuse its discretion in denying the injunction. 8
                            III
    For the foregoing reasons, we affirm the district
court’s judgment in all respects.
     No costs awarded.
                         AFFIRMED




     8  CardiAQ makes additional arguments for the first
time in its reply brief, which we do not address because
they are forfeited.
