to use to manufacture it to sell such products and or processes in certain territories under the aforesaid technology and related know how and program desires to accept these the judge at the district court found that in the grant that was provided in the agreement it did not convey the exclusive right to sue the language in force was not referring to suing one ranchman but was referring to suing or enforcing dave's infringer was the big grant in the agreement of the right to sue and it was not exclusive so that was the controlling question that the court found in finding that the agreement was  license and that it did not convey all substantial rights and that it was merely a bare license that did not provide the plaintiffs with any standing to be in the case so looking at the rights to infer you know that it was the  grant in the in the language of the patent paragraph two point one is the overall grant of rights and in that paragraph it specifically states that the client's meaning often takes grants to protract the sole and exclusive nontransferable right to enforce to establish the license or other suitable arrangements with third parties the manufacturer lease sale and or use of the license technology and license no so from that paragraph you have three rights that are conveyed one for the sole and exclusive right to enforce the sole and exclusive rights of license and the sole and exclusive right to enter into other suitable arrangements paragraph the second sentence in that paragraph reinforces that construction of the term poor's because it says appropriate show use reasonable efforts consistent with prudent business practices to enforce the license technology in the licensed technology here or in two to one line it is not that serious is not referring to enforcing other license agreements it's referring to forcing the pact and that language in force is used in other places in the agreement which specifically talks about bringing a claim for  infringement in litigation this to what i don't understand what's his question was once the challenge to the licenses teddy was raised why don't just join the patent team i mean why was the assignee the original assignment from the inventor could not cure the original standing if found it was did not have even constitutional standing much less the prudential standing and we were on appeal today or during th one we did have credentials standing which would enable her to sue its own name and in the alternative we had a constitutional standing order for three constitutional standing suppose that the day after you got the trial court apparently doesn't want to help us in the case how would your situation differ from the situation that you would like to have when you if you get every man from this court the situation would differ in that at the time the court that the judge would have come out differently to you with respect to those two issues if a different plaintiff were were such a to do where the substitution was done to simply to cure a in effect a pleading defect i do not that cat is not invalid is that the defendant did not bring forth any evidence at that time we made a motion under some for summary judgment the patent was not invalid and the plot the defendant at that time have the burden of bringing defendant raise it in several hearings saying we don't believe that they're standing here but never moved to dismiss it was after the court was forced to to move the trial out five few months because of a hurricane the plaintiffs in deciding asked to leave the court to deal with this issue before trial rather than going through the whole trial and having it brought up at that time deal with it now we had some time and so a better time the court allowed it and also at that time the defendant made a separate motion so there were two motions on the issue of standing before the court and that's when the defendant first raised the issue with court and stand so to answer your question is we would like to have that ruling in this particular case remain and i believe we can have it remain if the court remands and if the court finds it did not have traditional standing but at least have article three constitutional standing it could be amended to the district court and then the district court could been joined the assigned homework to the case and cure a producer standing and then have the case move forward from there or make a decision as to whether or not it wants the case to move forward from where it left off so bill language the controlling language is the word of course and let me ask you another question then as i read this agreement this sounds if you could be strip away some of the potentially extraneous material in the remit it sounds like what it comes down to is that the owner of the patent wants somebody else to handle the headaches of licensing in a force but wants to maintain a substantial chunk of the benefits of beneficial ownership of of the patent and is willing to give up some chunk of the benefits of licensing and or force much but isn't positioned it seems to me as i read through this entire agreement of just a patent manager good looking for licensees and looking for potential defendants of their infringers that doesn't sound like a transfer of all substantial rights to the path why is it well if you look at the riots and just take the way the train is material so what the authentic to retain primarily was a correct but primarily what it really wanted and really what it really obtained was compensation because it had the right to share any of the proceeds judgments licencee proceeds that's what primarily got and compensation is something that normally goes along with an assignment in the court this court on several occasions found the compensation provisions in the ball case i think in this people the other cases the internet you know local property development case compensation is not something that detracts from the transfer also assists substantial rights compensation isn't necessarily part of any agreement even an assignment that some method of compensating the inventor of the patent for that agreement is you necessarily had they some precedent in law the right to sue in your own name but that it was the contract provision that established the right to sue and if you have the exclusive right to sue policy behind the prudential standing is such that the defendant should not be afraid of having to deal with this lawsuit and then another lawsuit later on by having no other sign or in this case that's not going to happen because  did not retain the right to sue so that it cannot bring another lawsuit against pro or post and therefore the rights that are adjudicated this case will be final as to our post and the patent and that client trust you and comes to you and says mr johnson i think you're terrific lawyer and you really know the patent business i want you to make the decisions with respect to whether to sue and whether to license and i'm going to  put my decision in writing and i'm going to say you are exclusively responsible for deciding when to sue people on my i pad and in fact i'm going to give you a piece of the action if if you get a license or if you without consulting you and you are the only lawyer i'm used i don't i don't believe in america particular story because it would allow that person to to bring a case in their own name but you would have to chow does that differ from this case is different from this case in that they have the right not only to sue people to enforce the patent they also have the right to license they also have the right to indulge infringement and the cases have found but i just gave those rights to you as my lawyer because i want you to make those kinds of decisions because i trust so you've given over the substantial right i've allowed you to decide who to sue whether to sue subject and some salting with me and whether to license i don't believe in the case from what you've just said you've given me the decision but you have a transfer of the rights to me is that the distinction well i'm not sure what the differences well i believe if you haven't transfer the rights of a patent such that the agreement i can hold this agreement and i have the rights to the patents and ultimate facts are determined after you determine what rights have been distributed between the parties the i have given you the right to make the  the confines of propane and that's what order the pervert to point to specifically says that prototype it's authorized to make the decision and it's authorized to make that decision and to manage the litigation the other courts have found that where you have you have transferred all substantial ok thank you i don't know the answer this question i don't think it's come up before but if you give someone the exclusive right to enforce the patent and retain no right to enforce the patent why does it matter whether if you didn't have such a clause all of our cases have evolved because there wasn't such a clause and the question was do or don't you have all substantial rights as an up or it's a matter of law and we've got all kinds of of nuances in that interpretation but if the tenth had been to transfer the right to sue exclusively her of two point two would have said that when you look at all substantial rights that means all you look at it does  that licensee makes that means that defeats the exclusive right i think there are cases i don't think it's so clear cut i think when you look at the whole bundle of rights authentic spray continue to practice t johnson is why didn't we raise this earlier in the case the answer to a complaint asserted like a stamp this was raised from the beginning we didn't make motion until later case but have the exclusive decision whether or not to sue for infringement and if they decide there is infringement but we don't want to sue for whatever reason often exclude do anything about now something you just said standing to sue and but it has to join the owner of the pet and in a pure licensee type situation but i was not aware of any law on the effect that the owner of the i really have to join you just because i've given you a license and promise not to license anybody else yes for the very reason that the alleged french or is there a risk from someone else coming in and suing but that other person is not at risk from the exclusive license he's suing alone because that exclusive license e has to join me and of course i'd already risk you to cut it with respect to any disposition between you and make so in that they're not at risk from the licensing thing for the they both have the rights in the patent and both have an interest in the result in the litigation but in an authentic sprott lawsuit against our post have no interest in that litigation and that's another way of looking at why it's their license it but the point you were just about to get to let me ask you one question on that why is it that assuming you're right that that interest in fact in the outcome of the litigation such that it should be allowed to join given an opportunity to join i think texas and proceed with the loss of there are a number of reasons first of all i never made a this was an issue we living in two plus years there's a fairness issue as well that needs to come into play when one of harney asks to and other party to an had the exclusive right to be the sole planet but it's was this all goes to whether or not such a motion if made ought to be granted but why don't they have article three standing under the test of injury hope or delay from client regarding selection of targets for licensing or any other matter covered by this article article two is the latter is the article that talks about the plan of rights which kluges located brings w the arrangement was between these parties who were given the exclusive right to license they given the right to sue and they need to consult with a patent to certainly has a security interest given what this agreement is i see my time is up it's a licensing agent arrangement it's far from the all substantial rights that it needs to be in order to allow specifically talks about enforcing the license technology and then the last part of the sentence which is separate from the first part is talking about licensing also the word of course and later on in the agreement also talks about enforcing it in the context of litigation would paragraph to point to was doing was specifically putting the decision making meeting and enforcing the patent i bring a lawsuit the decision is solely within the  already been invaded two point one it is a it is a necessary it is basically qualify that right by saying we authentic give over any decision making which is what judge bryson was talking about any decision making over to you secondly with regard to credential standing i would ask the court to look at the intellectual property development case in the ortho pharmaceutical cases and those two cases specifically talk about the beneficial rights you don't have a fair license where you you can rely on not being sued you actually have some right in other people to print by getting money some beneficial right to matter regarding the assignment back  the improvements to speak play case pacifically talked about that and saying it's just it's really it's keeping it reversionary interest in anything that comes back and all of these rights flow through the path of the agreement so that when they are signed back they flow through