Pioneer Hi-Bred International, an Iowa Corporation v. Holden Foundation Seeds, Inc., an Iowa Corporation, Hawaiian Research, Ltd., an Iowa Corporation Corn States Hybrid Service, Inc., an Iowa Corporation, Pioneer Hi-Bred International, an Iowa Corporation v. Holden Foundation Seeds, Inc., an Iowa Corporation, Hawaiian Research, Ltd., an Iowa Corporation Corn States Hybrid Service, Inc., an Iowa Corporation

This case involves a dispute between competing breeders of corn seed. The district court1 awarded $46,703,230.00 to Pioneer Hi-Bred International based on Holden Foundation Seeds, Inc.'s misappropriation of the genetic make-up of certain seed corn. Holden contests the district court's liability determination and damage award on numerous grounds. Pioneer cross-appeals from the district court's denial of prejudgment interest. We affirm.

The bench trial in this case consumed over 37 days, spread over 14 weeks. The massive record consists of over 9,000 pages of transcript and 1,100 exhibits. Thus, our recitation of the facts is, of necessity, somewhat abbreviated.

The sale of hybrid seed corn is a multi-billion dollar industry. Pioneer is a vertically integrated seed corn company. It conducts a breeding program, develops parent seed, and produces hybrid2 seed corn for the retail market. The superior performance of its products, obtained in part through millions of dollars spent annually on corn research and development, has enabled it to gain a sizeable portion of the retail seed corn market. Its marketed seed corns include Pioneer hybrids 3780 (Pioneer's leader in sales for several years) and 3541--which share a common parent, designated H3H.

Holden3 indirectly competes with Pioneer. Holden is a foundation seed company that develops inbred parent seed lines and sells these lines to its customers, also seed corn companies, which use them to produce hybrid seed in competition with Pioneer.4 During the 1980s, Holden's LH38, LH39, and LH40 ("LH38-39-40")5 were among its most popular parent lines.

Pioneer sued Holden on a number of legal theories,6 claiming that Holden developed LH38-39-40 from misappropriated Pioneer H3H or H43SZ77--protected trade secrets of Pioneer ("H3H/H43SZ7"). During discovery, the district court decided, at Pioneer's request, that the nature of this dispute required that Holden "freeze in" a particular story regarding the development of LH38-39-40. The court did so to prevent Holden from altering its story to conform to the scientific evidence eventually introduced. Holden claimed that although LH38-39-40 demonstrated some similarity to Pioneer's seed lines, Holden developed LH38-39-40 from an internal line, designated L120. The district court held that the genetic make-up of H3H/H43SZ7 is a protected trade secret of Pioneer. The court determined that although LH38-39-40 differed in some respects from Pioneer's seed, the lines had nonetheless been derived from misappropriated Pioneer material. The district court based its decision on expert testimony that LH38-39-40 derived from H3H/H43SZ7 and Holden's inability to offer adequate evidence of its "L120 story." The court also ruled in Pioneer's favor on its Lanham Act, interference with business advantage, unjust enrichment, and conversion8 claims.9 The district court awarded over 46 million dollars in damages to Pioneer. Holden appeals.

Much of Holden's argument before this court attacks Pioneer's scientific evidence as inadequate to support the district court's judgment. A threshold issue, however, is Holden's assertion that the district court erred in admitting the scientific evidence relating to electrophoresis, liquid chromatography, and growout testing.

The evidence from the electrophoresis, liquid chromatography, and growout testing was central to the district court's decision. The judge appointed an expert, Dr. Charles F. Lewis,10 to assist the court, and both sides relied heavily on expert testimony to support their positions. Nonetheless, Holden argues that the scientific evidence from these three tests failed to meet the "general acceptance" requirement of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923),11 and this court's application of Frye in United States v. Two Bulls, 918 F.2d 56, 60-61 (8th Cir.1990).12

After briefing in this case, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which held the "austere" Frye standard "should not be applied in federal trials." Id. --- U.S. at ----, 113 S.Ct. at 2794; see United States v. Martinez, 3 F.3d 1191, 1196 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 734, 126 L.Ed.2d 697 (1994). Rule 702 of the Federal Rules of Evidence, the Court stated, displaced Frye and the "general acceptance" standard. Daubert, --- U.S. at ----, 113 S.Ct. at 2794. Thus, the focal point of Holden's admissibility argument before this court has been removed. Moreover, we are convinced that the district court considered the factors discussed in Daubert, and committed no error in admitting the evidence.

Before admitting scientific expert testimony, the trial court must conclude, pursuant to the Federal Rules of Evidence, that the proposed testimony constitutes: "(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. --- U.S. at ----, 113 S.Ct. at 2796; Martinez, 3 F.3d at 1196. This standard is "a flexible one" whose "overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission." Daubert, --- U.S. at ----, 113 S.Ct. at 2797. The court's "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Id.

The three tests rested on basic principles of genetics and horticulture, which the district court considered in some detail. Although the court did not expressly analyze these issues under the as-yet-unannounced Daubert formulation, its analysis convinces us that it did consider the experts' testimony to be scientific knowledge that would assist in determining facts in issue. Indeed, the court based its liability finding in large part on the ability of these tests to show Holden's possession of Pioneer's protected material. Pioneer Hi-Bred Int'l v. Holden Found. Seeds, Inc., No. 81-60-E, slip op. at 31-68, 1987 WL 341211, at * 13-30 (S.D.Iowa Oct. 30, 1987). The district court acknowledged that the tests were widely used in the industry, conducted by qualified experts, and considered helpful enough to be relied upon by both parties in their attempts to support their respective positions. Thus, the district court's opinion shows that it considered and applied many of the factors enumerated in Daubert.

Moreover, Holden's admissibility arguments to this court primarily focused on how the district court used the scientific evidence, not on its decision to admit the evidence. Holden explicitly concedes that "the scientific tests were admissible to show differences...." In light of this concession, the analysis made by the district court, and the less rigid standard enunciated in Daubert, we cannot say the court erred in admitting the testimony. Holden also suggests that the tests were inadmissible because they could not conclusively show derivation. This inability, however, provides no bar to the tests' admission. "Daubert requires only scientific validity for admissibility, not scientific precision." United States v. Bonds, 12 F.3d 540, 558 (6th Cir.1993).

This aspect of Holden's admissibility argument--that the tests did not prove parentage--arises again in our examination of whether Pioneer provided sufficient evidence to prove that Holden possessed Pioneer's protected material. This argument will be considered later, but we begin with a discussion of the specific tests and test results presented to the district court.

The three tests played a significant role in evaluating Holden's claims as to how it developed the contested lines. Holden asserts that each of these lines developed from a common parent, L120. Because Holden discarded L120 two years before Pioneer filed suit when it began putting its inventory on computer and discarded a number of "old lines," the parties could not directly test L120. Instead, the parties attempted to reconstruct the genetic make-up of L120 from its pedigree supplied by Holden. Much of the scientific testimony in this case sought to prove the genetic makeup of L120. This, in turn, would indicate whether L120 could have been the parent of LH38-39-40, and whether it derived from protected Pioneer material.

Holden claims it developed L120 during repeated backcrossings13 between a disease resistant (Ht14) seed15 and a public line, Oh43, which is freely available to breeders such as Holden. Holden stated that plant breeder Arlyn Eggerling selected certain plants (later labeled L120) from this backcross program. These plants were "tagged and bagged" but never entered into the nursery records. Holden explained that it could not provide a more accurate pedigree because inadequate nursery records16 existed as to L120's early development. Holden's L120 pedigree provided to the court placed its selection at approximately the fifth to eighth backcrossing. Other testimony suggested that the selection may have occurred even later in the backcross program, perhaps as late as the thirteenth generation. Holden's statement that it initially selected L120 from the fifth backcross generation or later proved increasingly significant as the trial progressed. The experts agreed that a plant randomly selected so late in a backcrossing program would theoretically consist almost entirely of Oh43 genetic material.17

In an attempt to evaluate the parties' competing claims, the court oversaw three series of tests--electrophoresis, reverse phase high-performance liquid chromatography and growouts. Each test was supervised by the court, performed by independent experts, and monitored by the parties.

By consent and court order, isozyme electrophoresis tests were conducted.18 These tests rely upon the general principle that an allele found in a line of corn (e.g., LH38-39-40) must have been provided by one of the two parents. Alleles are the two individual genes in a particular gene pair. Thus, the presence of alleles in the child which are not in either of its purported parents discounts the possibility of parentage. According to Dr. Charles Stuber, the court-appointed expert who conducted the tests, electrophoresis indirectly examines these alleles by separating19 and then analyzing the various enzymes found in plants. This analysis of the enzymes, stated Stuber, informs the tester of a plant's genetic structure because of "one of the central dogmas of genetics"--the one-to-one correlation between genes and enzymes--which, he testified, is "essentially ... true."

According to Stuber, LH38 contained isozyme20 allele 2.0 ("# 2 allele") at a particular locus, Pgd 1. At this same locus, one of its alleged parents, A619, contained a different allele. Thus, the # 2 allele found in LH38 presumably came from LH38's other alleged parent--L120. Since Holden lost or discarded L120 two years before Pioneer filed its complaint, no L120 seed could be directly tested. However, Holden's theory of parentage indicates that L120 resulted from repeated backcrossings with Oh43. As referenced earlier, Drs. Stuber and Stephen Smith21 agreed that if L120 were randomly selected from the Ht backcross program, over 98% of its genetic material should be identical to Oh43. Relying on the fact that the 3.8 allele (found on Oh43) should have been found in L120, and hence at locus Pgd 1 of LH38, Stuber concluded that Holden's L120 story was "possible but ... highly unlikely." Smith reached a similar result, testifying that the "isozyme data and the [L120] pedigree don't match" while Pioneer's stated pedigree was "absolutely consistent." Stuber reached a similar conclusion with respect to LH40.

Holden contends the # 2 allele resulted from W64A, the disease resistant seed in its L120 pedigree,22 and that Pioneer failed to show otherwise. Holden attacks the foundation for Pioneer's assertion that L120 would necessarily be 98% Oh43. Among the possibilities Holden cited were a much greater degree of contamination and relic heterozygosity in inbred corn lines than commonly assumed, or non-Mendelian events such as mutation.23 Holden also challenges the validity of the general principle underlying electrophoresis testing (i.e., a given allele must come from one of two parents). After considering these attacks, the district court accepted Stuber's testimony which showed that "Holden's two lines--LH38 and LH40--might well be fathered by Pioneer's H3H, but would not be fathered in the way Holden claims they were, as the probability is so low that it is not logical." Slip op. at 34-35, 40. The duty of weighing the strength of the testimony supporting the parties' respective views lies with the district court. Hoefelman v. Conservation Comm'n, 718 F.2d 281, 285 (8th Cir.1983); Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1218 n. 7 (3d Cir.1993). Thus, we cannot say that the district court clearly erred in finding that L120 would consist primarily, although not entirely, of genetic material found in Oh43.

The electrophoresis evidence does not eliminate the possibility that L120 is a parent of LH38-39-40. As with such tests as typical DNA testing, see Martinez, 3 F.3d at 1193, the electrophoresis testing (even under Pioneer's interpretation) did not and could not conclusively prove that a given child (i.e., LH38-39-40) derived from particular parents. See also Bonds, 12 F.3d at 558 (DNA testing). Nonetheless, the court did find, based on Stuber's testimony, that electrophoresis testing "is very precise" and "a very important technique now being utilized by the seed corn industry on a day-to-day basis." Slip op. at 39. "All parties," the court concluded, "agreed that electrophoresis cannot recognize all differences, but that it can establish differences and that it cannot establish sameness." Id. at 32 n. 5 (emphasis in original).

The details of reverse phase high-performance liquid chromatography testing are also complex, but basically similar to electrophoresis. Like electrophoresis, liquid chromatography testing identifies certain gene proteins within the genetic structure of a plant. According to Stuber and Bietz, this process examines different genes from those measured by the electrophoresis tests. This is significant. Since the two tests measure different gene structures and are independent, their combined accuracy is higher than if either was conducted alone. Liquid chromatography testing creates a graph consisting of a series of peaks and valleys for a given seed corn. These peaks and valleys represent collections of genetic material,24 which theoretically must have come from one of the parents. The testimony showed that although its application to corn is relatively new, this methodology is "well established in testing other cereal grains." Slip op. at 44.

Pioneer relies on the presence of two peaks in LH39 which are not present in Oh43. Holden claims that LH39 is the result of a cross between L120 and Oh43. Pioneer responds that since L120 is "essentially Oh43 itself ... LH39 should ... have a chromatogram identical to Oh43." Thus, according to Pioneer, the peaks indicate that L120 could not be a parent, while supporting the theory that LH39 derived from H3H/H43SZ7. LH38 also displayed a peak inconsistent with Holden's asserted pedigree. Pioneer's position hinges on the finding that L120 would necessarily have an identical chromatogram to Oh43.25 If L120 differed significantly from Oh43, the existence of a couple of differing chromatogram peaks in the contested seed might very well be expected.26 Based on the evidence before it, the court concluded that L120 should exhibit a chromatogram identical to Oh43. Slip op. at 46.27

As with electrophoresis, liquid chromatography testing could not determine the precise parentage of LH38-39-40. Rather, it could only exclude certain possibilities. As with the electrophoresis testing, the liquid chromatography testing failed to rule out H3H/H43SZ7 as a possible parent,28 while raising doubts as to the viability of Holden's L120 story. The court found it significant that Pioneer wanted the tests conducted, since the tests could "torpedo" Pioneer's story but not conclusively confirm it. Slip op. at 54.

At Holden's request, the court also directed three seasons29 of growing, cross-pollinating, and comparing the various disputed lines.30 The results, particularly with respect to LH39, demonstrated similar physical characteristics and comparable degrees of hybrid vigor31 (heterosis) among several of the plants.32 Pioneer's witnesses, George Sprague33 and Richard L. McConnell,34 concluded that this evidence cast doubt on Holden's asserted L120 pedigree, and that the seeds more likely derived from H3H/H43SZ7. McConnell testified that Holden's LH38 and LH39 are too similar to Pioneer's H3H to have been developed independently.

Holden interprets the growout evidence quite differently. Holden correctly states that the growout evidence reflected differences as well as similarities between the Holden and Pioneer lines. Holden points out that Pioneer's own witness, McConnell, stated that the growouts showed only the "possibility" of derivation from H3H. Dr. Paul Cornelius35 and Mr. Art Johnson,36 witnesses for Holden, looked at different traits from those analyzed by Sprague and McConnell, and found substantial differences between LH38 and H3H. Based on this investigation, Cornelius expressed his serious doubts about whether LH38-39 derived from Pioneer's line. Finally, any perceived similarities in the growouts, Holden suggests, merely reflect the large percentage of Oh43 in each of the tested lines--Holden's and Pioneer's alike.

The court rejected Holden's attempt to attack the concept or purpose of the growouts, which Holden initially requested. Slip op. at 64-65. Moreover, the court acknowledged the growouts' limitations, but concluded they were "imperfect but reliable." Id. at 65. The results, however, were "sweet and sour pork" insofar as there were "pluses and minuses for each litigant." Id. at 67-68.

Each of the three tests certainly had its own set of limitations and inadequacies. Electrophoresis and chromatography could not, even under the court's view, conclusively prove the parentage of LH38-39-40. The growouts were, as we just discussed, indecisive. Nonetheless, all of the tests contributed to the court's finding that Holden's L120 story was highly unlikely, while Pioneer's theory of parentage was more likely.

Much of Holden's argument before this court focused on the district court's ruling that Holden misappropriated Pioneer's protected trade secret. According to Iowa law, a plaintiff must generally show three elements to prevail in a trade secret action: "(1) existence of a trade secret, (2) acquisition of the secret as a result of a confidential relationship, and (3) unauthorized use of a secret." Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220, 226 (Iowa 1977); see Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1176 (2d Cir.1993) (applying New York law). We review determinations of state law de novo, giving the district court no deference. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

Holden does not argue on appeal that genetic messages cannot qualify as trade secrets. Ronald Holden, Holden's chief operating officer, testified that he does not "have any problem" with the idea that there is a claimed proprietary interest in inbreds and parent lines. Thus, we assume without deciding that genetic messages can qualify for trade secret status. See Restatement of Torts, Sec. 757 cmt. b (1939). Holden instead argues that it should not be liable for misappropriating H3H/H43SZ7 because Pioneer failed: (1) to keep the genetic messages secret; (2) to prove that Holden actually possessed the protected genetic messages; and (3) to prove that Holden obtained the material by improper means. The district court rejected each of Holden's arguments.

Insofar as Holden argues that there is insufficient evidence to support such findings, we must review the evidence in the light most favorable to Pioneer, giving it all favorable inferences. Craft v. Metromedia, Inc., 766 F.2d 1205, 1212 (8th Cir.1985), cert. denied, 475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986); Dace v. ACF Indus., Inc., 722 F.2d 374, 375-76 (8th Cir.1983) (subsequent history omitted). For the most part, Holden's arguments relate to the insufficiency of the evidence or Pioneer's failure of proof. On occasion, however, Holden argues that the district court's findings are clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Findings of fact are clearly erroneous only if they inspire a "definite and firm conviction that a mistake has been made." Id. at 573, 105 S.Ct. at 1511 (citation omitted). Of course, "[i]f a finding is not supported by substantial evidence, it will be found to be clearly erroneous." 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 2585 (1971). But, where "the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as a trier of fact it would have weighed the evidence differently." Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511.

Holden argues that H3H/H43SZ7 are not trade secrets because Pioneer failed to maintain their secrecy. Fundamental to the existence of a trade secret is that the matter be, in fact, secret. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475, 94 S.Ct. 1879, 1883, 40 L.Ed.2d 315 (1974); Coenco, Inc. v. Coenco Sales, Inc., 940 F.2d 1176, 1178-79 (8th Cir.1991). By definition, trade secret law does not protect information in the public domain or otherwise readily ascertainable. Kewanee Oil, 416 U.S. at 481, 484, 94 S.Ct. at 1886, 1887 ("that which is in the public domain cannot be removed therefrom by action of the States"); see Integrated Cash Mgmt. Serv., Inc. v. Digital Transactions, Inc., 920 F.2d 171, 174 (2d Cir.1990). The secrecy, however, need not be absolute. Reasonable precautions to protect the secrecy of a trade secret will suffice. See Surgidev Corp. v. Eye Technology, Inc., 828 F.2d 452, 455 (8th Cir.1987) ("[o]nly reasonable efforts, not all conceivable efforts, are required"); Sigma Chem. Co. v. Harris, 794 F.2d 371, 373-74 (8th Cir.1986) (employer took extensive measures to safeguard its product and vendor files); Restatement of Torts Sec. 757 cmt. b (1939). Companies need not "guard against the unanticipated, the undetectable, or the unpreventable methods of espionage now available" or create "an impenetrable fortress." E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1016-17 (5th Cir.1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971); see Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 925 F.2d 174, 180 (7th Cir.1991) ("perfect security is not optimum security" and therefore is not required).

The district court found that the genetic messages of H3H and H43SZ7 were trade secrets. Slip op. at 72. The district court found that the "formula" did not exist outside Pioneer's and its contractors' fields, and that Pioneer took reasonable precautions to protect the secrecy of the genetic message. Id.

Pioneer takes several measures to preserve the secrecy of its inbreds.37 Growers operate under contracts which prohibit disclosure of the seed. Fields have no labels indicating what seed is being grown, and all seed bags are coded to avoid identification. Pioneer removes male inbred lines and commingles them with other corn, thereby frustrating those seeking to obtain the inbred seed.

Despite these steps, Holden argues that Pioneer failed to maintain adequate security in several ways. First, during the 1970s Pioneer harvested the male rows38 of its production fields and sold the seed to grain elevators. This grain was readily available to any purchaser. Holden also states that H3H could be present in Hybrid Pioneer 3780 or 354139 seed sold to farmers, and thus H3H plants may be found in farmers' fields. Holden further argues that Pioneer lost the requisite secrecy by selling H3H/H43SZ7 in the Soviet Union without restriction. Holden cites testimony indicating that some of this seed was "leaked out," and that Pioneer taught experts in Hungary how to produce H3H and H3H-derived hybrids.

Although there is conflicting evidence on whether Pioneer had maintained the secrecy of the genetic messages, there is sufficient evidence to support the district court's finding that Pioneer took reasonable precautions to protect the secrecy of the genetic message of H3H/H43SZ7. See Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 664 (4th Cir.) ("secrecy is a question of fact"), cert. denied, --- U.S. ----, 114 S.Ct. 443, 126 L.Ed.2d 377 (1993). First, Holden's claim that the message was "widely disseminated" because it could be obtained from seed elevators and farmers' seed bags is overstated. Although a Pioneer employee, Thomas Urban, acknowledged that the male corn could get into a seed bag as a contaminant, he also stated "it's almost impossible." Urban explained that Pioneer had "many, many employees who stood looking at corn ears ... [and] [t]he chances of that happening are not very great." Urban knew of no instances of the male corn being found in bags of hybrid seed. Moreover, the seed in the bags and elevators is mixed, and a grower would have no way of easily identifying the desired male seed from the many other seeds in the overall mix. "The more difficult, time consuming and costly it would be to develop the information, the less likely it is 'readily' ascertainable." Peter J. Courture, "Independent Derivation and Reverse Engineering," in Trade Secret Protection and Litigation: Protecting Confidential Business and Technical Information 623 (PLI Patents, Copyrights, Trademarks & Literary Property Course Handbook Series No. 340, 1992) (citing cases); see Integrated Cash Mgmt. Serv., 920 F.2d at 174 (product was not "readily ascertainable"); Sigma Chem. Co., 794 F.2d at 374 (finding that vendor files constituted a trade secret and relying, in part, on fact that it would be difficult for a competitor to duplicate the information).

It is also relevant that the possible means identified by Holden of obtaining H3H/H43SZ7 were not the means by which Holden claimed it developed LH38-39-40. Many courts have held that the fact that one "could" have obtained a trade secret lawfully is not a defense if one does not actually use proper means to acquire the information. See, e.g., Bryan v. Kershaw, 366 F.2d 497, 500-01 (5th Cir.1966), cert. denied, 386 U.S. 959, 87 S.Ct. 1030, 18 L.Ed.2d 108 (1967); Smith v. Dravo Corp., 203 F.2d 369, 374-75 (7th Cir.1953); Imi-Tech Corp. v. Gagliani, 691 F.Supp. 214, 231 (S.D.Cal.1986); Syntex Opthalmics, Inc. v. Novicky, 214 U.S.P.Q. 272, 277, 1982 WL 63797 (N.D.Ill.1982) ("[w]here the security lapses were not the cause of the misappropriation, those lapses should not be the basis for denying protection"), aff'd, 701 F.2d 677 (7th Cir.1983); Courture, "Independent Derivation and Reverse Engineering," at 623 (citing cases); but see Van Prods. Co. v. General Welding and Fabricating Co., 419 Pa. 248, 213 A.2d 769, 778-79 (1965). This evidence does not lead us to conclude that the district court clearly erred in finding that Pioneer maintained the requisite secrecy for trade secret protection of H3H/H43SZ7.

Holden's argument that Pioneer abandoned its trade secret by selling H43SZ7 to the Soviet Union is similarly unpersuasive. Pioneer did sell H43SZ7 to the Soviet Union during the 1970s. This sale, however, was pursuant to an agreement which restricted use of the seed and contained a confidentiality provision. See Trandes Corp., 996 F.2d at 664 (limited disclosure pursuant to a confidentiality agreement does not destroy secrecy). Holden's evidence that the material was "leaked out" of the Soviet Union to other Eastern bloc countries is based only on rumor, and does not convince us that the district court clearly erred in finding that Pioneer maintained the requisite secrecy for trade secret protection of H3H/H43SZ7.

Holden also argues that Pioneer's trade secret claim is invalid because insufficient evidence supports the district court's finding that Holden possessed H3H or H43SZ7. Holden contends that since none of the tests can conclusively prove parentage, the district court clearly erred in finding possession. Holden points out particular shortcomings with each of the tests. First, tables provided by Stuber suggest that electrophoresis is less accurate than Pioneer's experts claimed.40 More importantly, Pioneer's experts' conclusions, drawn from both the electrophoresis and liquid chromatography testimony, rested on the assumption that L120 was essentially Oh43--an assumption which Holden brought into question.41 Finally, Holden emphasizes that the court found the growout testimony to be indecisive.

Holden's argument rests on its claim that the scientific evidence was based on methodology not generally accepted in the scientific com