Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV067706
Mihara, J.
Respondent Lighthouse Worldwide Solutions, Inc. (Lighthouse) successfully sought a preliminary injunction prohibiting appellants Adam Giandomenico, a former employee, and his new company Adams Instruments, LLC (Adams Instruments) from soliciting any of Lighthouse’s confidential customers and from marketing and selling a laser particle counter that had the same design specifications as Lighthouse’s Remote 3010. We find no error and affirm.
I. Procedural History
On July 21, 2006, Lighthouse filed a complaint for damages and injunctive relief against appellants. The complaint alleged causes of action for misappropriation of trade secrets, unfair business practices, breach of contract, and breach of fiduciary duty. On the same day, Lighthouse filed an ex parte application for a temporary restraining order and a preliminary injunction in which it sought to prevent the misappropriation of two trade secrets, its confidential customer list and the Remote 3010 laser particle counter. On July 21, 2006, the trial court issued the temporary restraining order and set an order to show cause hearing.
On October 12, 2006, the trial court issued a preliminary injunction prohibiting appellants “from soliciting any of plaintiff’s confidential customers and from marketing or selling a laser particle counter having the same or substantially the same proprietary design specifications as plaintiff’s Lighthouse Remote 3010 laser particle counter.”
II. Factual Background
Lighthouse submitted several declarations in support of its application for a preliminary injunction. These declarations set forth the following facts. Lighthouse is a developer and supplier of contamination monitoring systems in the semiconductor, data storage, pharmaceutical, biotechnology, aerospace, and defense industry worldwide. In 1992 or 1993, Giandomenico began working for Lighthouse. In July 1998, Giandomenico signed an “Employee Confidentiality, Inventions, and Non-Competition Agreement.” The agreement included a confidentiality provision that defined both “proprietary information” and “[c]onfidential information.” Proprietary information included, among other things, trade secrets, processes, computer programs, data, inventions, techniques, marketing plans, strategies, forecasts, and customer lists. Confidential information included all proprietary information as well as “information about costs and profits,” any information “regarding any form of product produced, distributed or acquired, technical data and/or know-how relating to . . . inventions,” and “product release schedules, sales forecasts, sales histories, distribution channels, vendor and contractor information and data, finances, prices, budgets, suppliers and vendors.” The agreement also prohibited Giandomenico from “divert[ing] or attempt[ing] to divert (by solicitation or otherwise) any customer of [Lighthouse] that was a customer at any time during the term of [Giandomenico’s] employment” or “solicit[ing], caus[ing] to be solicited or accept[ing] the disclosure of any Confidential Information for any purpose whatsoever or for any other party.”
For approximately 14 years, Lighthouse has been using a differential pulse output signal as part of its cleanroom environment monitoring system (CEMS) technology. The primary advantage of this format is that it allows the unit to carry power and data on the same cable. For the most part, Lighthouse’s competitors have moved away from this technology. They use other types of output and cabling architectures, including analog output, serial-based communications, and Ethernet-based communications.
Lighthouse uses CEMS technology in one of the components of its three-part cleanroom monitoring system (Lighthouse System). The Lighthouse System includes the Remote 3010, the Lighthouse Signature Interface Unit (Lighthouse SIU), and the Lighthouse Monitoring System software (LMS Software). The Remote 3010 provides data that is collected from the cleanroom environment to the Lighthouse SIU, which is a data collection device that is installed in the cleanroom facility. The Lighthouse SIU then provides this data to the LMS Software. This software organizes the data, thus allowing the cleanroom operator to monitor, analyze, and compare environmental data from different areas and time periods. These three components communicate in a distinctive way, and are almost always used together due to their unique design characteristics.
Lighthouse has always manufactured the Lighthouse SIU and the LMS Software to use as part of the Lighthouse System, but it purchased the particle counter from other manufacturers. However, Lighthouse eventually formed an engineering team, designated the STAR Team, to create a product line of laser particle counters, including the Remote 3010. The STAR Team consisted of specialists in electrical engineering, optics, mechanical applications, and embedded design as well as support staff, who worked in purchasing, quality assurance, and manufacturing. Bonnie Basden was a member of the STAR Team, who worked on the Remote 3010.
Lighthouse treated this project with a high level of secrecy. The STAR Team was given exclusive access to design information that was accessible only in a permission-granted directory on Lighthouse’s computer system server. The lab area for the STAR Team was physically isolated from other parts of the company and was locked during non-business hours.
In July and September 2002, the major components of the first prototype of the Remote 3010 were completed. However, Lighthouse continued to make improvements to the product. In January 2003, Lighthouse hired Bill Shade to join the STAR Team. At that time, the STAR Team and Basden had almost completed the Remote 3010. However, Shade then redesigned one of the critical apertures. After Basden stopped working for Lighthouse, the STAR Team made significant improvements to the Remote 3010, and thus the Remote 3010 that is currently on the market is “far superior” to the earlier model. In March 2003, Lighthouse shipped the first Remote 3010, and has been marketing the product since that time.
Since development of the Remote 3010, Lighthouse has maintained the secrecy of certain key elements of this particle counter, which it considers a trade secret. The STAR Team has worked on physical means to protect the circuit design of this product. Lighthouse has also continued to improve the design and performance of the Remote 3010 while reducing its cost.
The Lighthouse SIU and the LMS Software are designed to receive data only in the differential pulse format. While there are rare custom-made systems, there are no interface units or software configurations on the market that can receive and process data in the differential pulse format. Thus, due to its differential pulse technology, the Remote 3010 is almost always used only with the Lighthouse SIU and the LMS Software.
Lighthouse has one competitor that manufactures a particle counter that is compatible with the Lighthouse System. Prior to 2002, Lighthouse purchased particle counters from MetOne and ART Instruments (ARTI). Lighthouse’s engineering team provided technical assistance to MetOne and ARTI so that these particle counters would be compatible with Lighthouse systems. Though they were manufactured by MetOne and ARTI, they were sold under Lighthouse’s name.
When Lighthouse stopped doing business with MetOne and ARTI, Pacific Scientific Instruments (PSI) purchased these companies. PSI operates a subsidiary, Hach, which continues to produce particle counters based on earlier models. This product connects to the Lighthouse SIU and LMS Software and communicates using the differential pulse format. Thus, Hach is Lighthouse’s primary competitor, but Hach has an extremely small share of this market.
In addition to the Remote 3010, Lighthouse developed a customer list that it intended to be confidential. To ensure this goal, portions of the customer list were maintained in separate databases. Lighthouse also only revealed portions of this information to an employee when it was necessary for the performance of his or her job. However, Giandomenico had access to all of this information prior to his termination. He periodically requested updates from various employees, who interacted with customers, vendors, and industry contacts, for revised lists. The customer list contained information that was not generally available to the public, such as internal contact information, the customer’s history with Lighthouse, product and pricing schedules for each customer, quotations, payment terms, purchase orders, job costs, and shipping costs. According to Sean Birch, one of Lighthouse’s vice presidents, the customer list was “the result of the investment of a substantial amount of time, energy, and personal networking by” Lighthouse.
On June 11, 2006, Lighthouse terminated Giandomenico’s employment. At that time, he was president of Lighthouse. Following his termination, Giandomenico had some of Lighthouse’s property, including a Remote 3010 and computer hard drives that contained confidential information. On June 30, 2006, Lighthouse published a press release on its Web site in which it announced that Giandomenico was no longer employed by Lighthouse.
On July 12, 2006, Giandomenico published a press release in which he announced his new company Adams Instruments. The press release stated that Adams Instruments was a “Promising New Contender in Contamination Control Monitoring” and that its “main focus is to continually develop products and services to meet the ever changing needs in contamination control.” The press release also referred the recipient to the Adams Instruments Web site, which advertised its remote laser particle counter called the 3010R. The 3010R, as advertised, appeared identical to the Remote 3010. A comparison of the data sheets for the Remote 3010 and the 3010R showed that the descriptions of eleven of twelve “[f]eatures,” eight of eight “[b]enefits,” and eleven of twelve “[a]pplications” were identical.
Lighthouse learned from its customers that Giandomenico sent the press release directly to its existing customers. Some Lighthouse customers expressed confusion regarding the relationship between Lighthouse and Adams Instruments and whether Adams Instruments released the 3010R in collaboration with Lighthouse.
In opposition to the application for the preliminary injunction, Giandomenico and Adams Instruments submitted several declarations. Giandomenico denied that he had used or transferred any confidential information about the Remote 3010. He asserted that Lighthouse hired Basden to reverse engineer the Remote 3010 and that the “reverse engineering was not secret, it was not treated by Lighthouse as being secret, and Lighthouse was not developing any new technology associated with a particle counter.” Giandomenico also stated that he found various articles on the Internet that described the components of a particle counter, explained how these components worked, and provided drawings. In addition, Giandomenico found information posted on the Internet by Lighthouse that included a detailed diagram of the Lighthouse particle counter and how it worked.
On July 4, 2006, Giandomenico met with Hai Lin, owner of Hal Technology (Hal). Hal was involved in the development of technology for and the design, manufacture, and distribution of laser particle counters. Lin gave Giandomenico authorization “to private label, market, sell, and service Hal Technology’s Handheld and Remote Particle Counters.” According to Lin, the Hal remote laser particle counter differed from the Remote 3010 in terms of size, placement of the nozzle, and depth of the optical system. On July 5, 2006, Giandomenico formed Adams Instruments and filed the company’s Certificate of Organization with the Massachusetts Secretary of State.
According to Giandomenico, the specifications for laser particle counters by various companies, including Lighthouse, are “virtually identical in form, fit, and function.” Four individuals who purchased particle counters from certain manufacturers, including Lighthouse, stated that all particle counters perform the same function and have the same dimensions. They further stated that the only significant differences among the particle counters from various manufacturers were price and service. No 3010R’s have been manufactured, ordered, or sold since the inception of Adams Instruments.
Giandomenico also denied that he used Lighthouse’s customer list. He asserted that potential customers of particle counters could be found in industry association Web sites and directories. On July 12, 2006, he sent a mass mailing to 20,508 email addresses of industry newsletter subscribers.
III. Discussion
A. Standard of Review
“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.] . . . [¶] The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support the injunction. [Citation.] . . . A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” (Butt v. State of California (1992) 4 Cal.4th 668, 677-678.)
“Insofar as the court’s ruling rests on evaluating and weighing the substantive factors noted above—the preponderance of likely injury and the likelihood of success—it is said to be vested in the discretion of the trial court, whose ruling will not be disturbed on appeal unless an abuse of discretion is made to appear. [Citation.] Insofar as the trial court’s ruling depends on determination of the applicable principles of law, however, it is subject to independent appellate review. [Citations.] And insofar as the court resolved disputed issues of fact, its findings are reviewed under the substantial evidence standard, i.e., they will be sustained unless shown to lack substantial evidentiary support. [Citations.]” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408-409 (Huong).)
B. Trade Secrets
The Uniform Trade Secrets Act (UTSA) (Civ. Code, § 3426 et seq.) defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process that: [¶] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Civ. Code, § 3426.1, subd. (d).) Thus, a trade secret consists of “(a) information (b) which is valuable because unknown to others and (c) which the owner has attempted to keep secret. [Citation.]” (Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 18 (Abba).)
1. Lighthouse’s Customer List
Appellants contend that there was insufficient evidence to support the trial court’s finding that Lighthouse’s customer list was a trade secret. We disagree.
A customer list may qualify as a trade secret. (Abba, supra, 235 Cal.App.3d 1, at pp. 18-21.) When customer information is available through public sources, it will generally not qualify as a trade secret. (Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1521 (Morlife).) However, such information will be protected when an employer has spent time and effort in identifying its customers’ needs or characteristics. (Ibid.) “The requirement that a customer list must have economic value to qualify as a trade secret has been interpreted to mean that the secrecy of this information provides a substantial business advantage. [Citation.] In this respect, a customer list can be found to have economic value because its disclosure would allow a competitor to direct its sales efforts to those customers who have already shown a willingness to use a unique type of service or product as opposed to a list of people who only might be interested. [Citation.] Its use enables the former employee to solicit both more selectively and more effectively. [Citation.]” (Id. at p. 1522, internal quotation marks omitted.)
In Morlife, supra, 56 Cal.App.4th 1514, a roofing company sought, among other things, injunctive relief prohibiting its former employees from misappropriating its customer list. (Id. at p. 1517.) The trial court found in favor of the roofing company. (Id. at p. 1518.) On appeal, the former employees argued that the customer list did not meet the definition of a trade secret, because the identity of potential customers was generally known in the industry. (Id. at p. 1521.) The roofing company produced evidence that it created the customer list, which included names, addresses, contact persons, pricing information, and information about the customers’ needs, through “telemarketing, sales visits, mailings, advertising, membership in trade associations, referrals and research.” (Id. at p. 1522.) The record also established that the roofing company limited employees’ access to the customer list and informed employees through an employment agreement and an employee handbook that it considered the information confidential. (Id. at p. 1523.) Based on this evidence, the reviewing court held that there was substantial evidence to support the trial court’s finding that the customer list was a trade secret. (Ibid.)
Similarly, here Lighthouse’s customer list had “independent economic value . . . from not being generally known to the public.” (Civ. Code, § 3426.1, subd. (d)(1).) Lighthouse invested “a substantial amount of time, energy, and personal networking” to create its customer list. This information included not only the identity of the customer, but also the customer’s history with Lighthouse, a contact person, product and pricing schedules for each customer, quotations, payment terms, purchase orders, job costs, vendor invoices, and shipping costs. Such information would be economically valuable, because it would allow any competitor to undercut Lighthouse’s prices. Lighthouse also made reasonable efforts to maintain the secrecy of its customer list. (Civ. Code, § 3426.1, subd. (d)(2).) Portions of the customer list were maintained in separate databases. Moreover, information from the list was provided to an employee only when it was necessary for the performance of his or her job. Giandomenico was the only employee with access to all information on the customer list. Lighthouse also informed Giandomenico through the “Employee Confidentiality, Inventions, and Non-Competition Agreement” that it considered the customer list confidential. Thus, there was substantial evidence to support the trial court’s findings that Lighthouse’s customer list was a trade secret.
Appellants, however, rely on evidence that they produced in opposition to the application for preliminary injunction. They assert that “(1) it is common knowledge in the air monitoring industry that the primary customers for particle counters are manufacturers in the semiconductor, data storage, pharmaceutical, biotechnology, aerospace and defense industries; (2) Lighthouse is only one of many companies that manufacture and sell laser particle counters; (3) Lighthouse’s customers often purchase particle counters from numerous vendors and disclose those vendors’ names to obtain better prices and service terms; (4) Lighthouse’s competition is already in place and competing; and (5) Lighthouse has no exclusive customers . . . .” They also direct our attention to Lighthouse’s own Web site and marketing materials in which Lighthouse lists some of its customers.
Appellants’ argument, however, ignores the contrary evidence produced by Lighthouse, and the trial court’s resolution of these disputed factual issues in favor of Lighthouse. (Huong, supra, 150 Cal.App.4th at p. 409.) First, only Hach produced laser particle counters that were compatible with the Lighthouse System, and this competitor had an extremely small share of the market. Thus, there were not “many” companies that manufactured and sold laser particle counters that were comparable to the Remote 3010. Second, Lighthouse sought to protect not only the identities of its customers, but also other information contained on its customer list. Since there was substantial evidence to support the trial court’s findings, we reject appellants’ argument.
2. Remote 3010
Appellants also contend that the Remote 3010 is not a trade secret. They claim that Lighthouse was “less than candid” about the development of the Remote 3010 and its attempts to keep its technology secret.
Appellants first rely on the declaration by Basden, who stated that she was hired by Lighthouse to reverse engineer the ARTI remote particle counter and that she was never told by Lighthouse that the development of this product was “top secret.” First, as Lighthouse points out, Basden never stated whether she was successful in her efforts to reverse engineer the Remote 3010 that is currently on the market. Second, Lighthouse presented declarations by Bill Shade, an optical engineer at Lighthouse, and Hope Winter, a Lighthouse employee in the Human Resources and Accounting Department. Shade stated that Basden did not complete the design work on the Remote 3010 and that he redesigned some of the Remote 3010, thus making it marketable. He also stated that significant improvements, including the development of a sensor with a laser lifetime of 10 years and a new optical system, were made on the Remote 3010 after Basden ceased working for Lighthouse. To refute Basden’s claim that she was unaware that her work on the Remote 3010 was confidential, Lighthouse submitted copies of the confidentiality agreement and the professional services agreement signed by Basden in which she agreed to preserve the confidentiality of any information “regarding any form of product produced, distributed or acquired, technical data and/or know-how relating to . . . inventions.” Lighthouse also provided evidence that the STAR Team had exclusive access to the design information in the Lighthouse computer system and that its lab area was physically isolated from other areas of the company. To the extent that appellants’ evidence contradicted that of Lighthouse, we are bound by the trial court’s factual findings in favor of Lighthouse. (Huong, supra, 150 Cal.App.4th at p. 409.)
Appellants next focus on evidence that the design specifications of remote particle counters, including the Remote 3010, were available through publications and Internet sites. However, none of these articles, including the one submitted to Wikipedia by a Lighthouse employee, refer to Lighthouse or the Remote 3010, provide an internal diagram of any specific component of the Remote 3010, or provide any information on how the Remote 3010 was created. Though appellants also relied on an article that referred to the MetOne particle counter and the MetOne particle counter operating guide, there was no indication that either contained information that incorporated the significant improvements that Lighthouse has made to the Remote 3010 since 2002. Thus, there was substantial evidence to support the trial court’s implicit finding that the Remote 3010 differed from other particle counters, and that its design specifications were not widely available in the industry.
Appellants also argue that the record established that the only products that they intended to sell were those licensed from Hal. Given that Giandomenico had confidential Lighthouse information on his computer hard drive when he was terminated and he announced that Adams Instruments would be selling the 3010R three weeks after his termination, the trial court could reasonably conclude that appellants intended to market and sell the 3010R.
C. Misappropriation Claim
Appellants next argue that the trial court abused its discretion in enjoining them from soliciting any of Lighthouse’s confidential customers. They claim that there was no evidence that they misappropriated Lighthouse’s customer list.
The UTSA defines “misappropriation” as “[d]isclosure or use of a trade secret of another without express or implied consent by a person who: [¶] . . . [a]t the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: [¶] . . . [a]cquired under circumstances giving rise to a duty to maintain its secrecy or limit its use . . . .” (Civ. Code, § 3426.1, subd. (b)(2)(B)(ii).) Courts may enjoin “[a]ctual or threatened misappropriation.” (Civ. Code, § 3426.2, subd. (a).)
An employee may announce a change of his or her employment to current or former employer’s customers. (Hilb, Rogal & Hamilton Ins. Services v. Robb (1995) 33 Cal.App.4th 1812, 1821.) “[T]he right to announce a new affiliation, even to trade secret clients of a former employer, is basic to an individual’s right to engage in fair competition.” (American Credit Indemnity Co. v. Sacks (1989) 213 Cal.App.3d 622, 636.) Thus, case law has established that it is only the solicitation of customers to obtain an unfair advantage that is prohibited under the UTSA. (See Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1155.)
At issue in the present case is whether appellants solicited customers to obtain an unfair advantage. “‘Solicit’ is defined as: ‘To ask for with earnestness, to make petition to, to endeavor to obtain, to awake or excite to action, to appeal to, or to invite.’ [Citation.] . . . It means: ‘To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain.’ [Citation.]” (Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198, 203-204.)
Here, appellants’ July 12, 2006 press release announced Adams Instruments as a “Promising New Contender in Contamination Control Monitoring,” that its “main focus is to continually develop products and services to meet the ever changing needs in contamination control,” and that the company intended “‘to offer high quality products at more competitive prices . . . .’” The press release concluded: “For more information regarding Adams Instruments please contact info@adamsinstruments.com or visit www.adaminstruments.com.” The Adams Instruments Web site advertised the 3010R. The only market for the 3010R were Lighthouse customers with the Lighthouse System, because the 3010R was one component of the three-component Lighthouse System. Lighthouse customers received appellants’ press release and became confused about whether the Adams Instruments’ 3010R was a Lighthouse product. Thus, in issuing the press release, Giandomenico was not merely announcing his change of employment. He was advertising the 3010R and asking potential customers, that is, Lighthouse customers with the Lighthouse System, to purchase the product at a more competitive price. Given the very limited market for the 3010R, the fact that the press release “did not mention Lighthouse, did not disparage Lighthouse, [and] did not compare the two companies” was irrelevant. While appellants “did not offer discounts or other inducements to the email recipients,” they offered the 3010R at “more competitive prices.” Thus, there was substantial evidence to support the trial court’s finding that appellants were soliciting Lighthouse’s customers, thereby threatening to misappropriate Lighthouse’s confidential customer list.
D. Unfair Competition
Appellants also contend that there is no evidence that they engaged in unfair business practices, because Lighthouse failed to meet its burden of proof that they violated the UTSA.
Business and Professions Code section 17200 defines “unfair competition” as an “unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.” Since we have concluded that Lighthouse met its burden of showing that appellants violated the UTSA, it also met its burden of proof that appellants engaged in unfair competition.
E. Potential-Merit and Interim-Harm Factors
Appellants argue that the trial court abused its discretion in granting the application for preliminary injunction. However, since we have concluded that Lighthouse produced sufficient evidence to establish that its customer list and the design and technology of the Remote 3010 were trade secrets under the UTSA and that appellants misappropriated these trade secrets, it is likely that Lighthouse will prevail on the merits of its claims. Appellants have not yet manufactured or sold its 3010R, thus the interim harm would be greater to Lighthouse if the application for preliminary injunction was not granted. Accordingly, the trial court did not abuse its discretion in issuing the preliminary injunction.
F. Language of Preliminary Injunction
Appellants contend that the preliminary injunction is impermissibly vague and overbroad.
The preliminary injunction enjoins appellants and their agents “from soliciting any of plaintiff’s confidential customers and from marketing or selling a laser particle counter having the same or substantially the same proprietary design specifications as plaintiff’s Lighthouse Remote 3010 laser particle counter.”
Appellants claim that Lighthouse’s “confidential customers” were not described with sufficient particularity for Giandomenico to determine which customers he may contact.
This argument was rejected in Readylink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006. In Readylink, the court stated that providing the customer list in the preliminary injunction would reveal proprietary and confidential information. (Id. at p. 1026.) Thus, the court recommended that if the appellant was uncertain as to whether he was enjoined from soliciting a potential individual or entity during the pendency of the action, he could inquire as to whether this individual or entity was under contract with his former employer. (Ibid.) Similarly, here, if appellants choose to solicit an individual or entity during the pendency of this action, they can inquire as to whether the individual or entity is already a Lighthouse customer.
Moreover, Giandomenico knows the identity of Lighthouse’s confidential customers. He was the only Lighthouse employee with access to the entire customer list during his employment. When his employment was terminated, he had in his possession a computer that contained not only the identities of all of Lighthouse’s confidential customers, but also each customer’s history with Lighthouse, a contact person, product and pricing schedules for each customer, quotations, payment terms, purchase orders, job costs, vendor invoices, and shipping costs.
Appellants also contend that “all laser particle counters currently on the market have ‘the same or substantially the same design specifications’ as Lighthouse’s particle counter,” and thus the preliminary injunction is unnecessarily restrictive as to the particle counters that they can sell.
However, the trial court implicitly found that not all particle counters use the same proprietary and design specifications as the Remote 3010. With the exception of Lighthouse and Hach, the industry has moved away from the use of differential pulse output signals in its particle counters. These manufacturers use other types of output and cabling architectures, including analog output, serial-based communications, and Ethernet-based communications. Thus, appellants are not prohibited from marketing other types of particle counters.
IV. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. McAdams, J.