to determine the sum and substance of what rights were transferred or not but if we believe the court needed to do this regardless of whether we asked although we did ask reportedly the court quoted the vises provisions an exclusive license to manufacture so obviously the court got these provisions from some way and that why isn't it very clear that all substantial rights were not granted to the once and but there to two language for a hard hitting litigation practitioner like i thought it was extraordinarily polite as a matter of fact in french and we were attempting to be polite your honor at least exceeded its pretty soft but we viewed it and credit the new representations that they had make that the court should look at the agreement and that's what we what you're saying is if the court deems for the review of the agreement to be relevant to this motion a one two three would respectfully request prompt discovery and that the court didn't consider it to be necessary to look at the agreement i don't know if i'd been the district judge i would have taken that as you're saying we have an absolute right to have you look at this and it's reversible error if you don't necessary mean that the underlying document is relevant that's plainly true but is it necessary for the court to review that the moon with the court has what it regards a sufficient evidence and there's no country evidence there was country evidence that's the distinction here there were representations made not only to a one to three in correspondence but also to the united states district court for the western district of texas where heidrick are back sued by itself  another defendant claiming to have standing to sue claiming to have rights to a significant portion of the technology claiming to have the rights for all questions of the technology i wish to bring suit under the patents and to some license the patents there's no suggestion that none of those are evidence that refuse that as as these provisions of quoted all substantial white rights were not representation that i just quoted they represented they had more rights than that and in addition to that they had rights they represented they had rights to sue which there's this court is observed is the most important right in determining whether someone has been transferred a substantial it's this is one issue but even assuming even assuming that it's true and it may be true we've never seen the agreement assists simming that hydra back did not receive all substantial was that it is a mere field of use license then the district court still needed to determine whether although a necessary part they were indispensable to the suit ok the let's use question about that  t this republic of philippines case in the supreme court you do cite a couple of cases where a parent was held to adequately represent a subsidiary but the supreme court in the philippines case texas waived its sovereign immunity in this case by while our case was pending and they university of texas not ever saying that they were indispensable to that case commenced a separate action under the same happens against a one two three in another quote and that unquestionably waived their sovereign immunity in that case we believe that a supposedly in the dark that i'm sorry as we reject that proposition suppose we say that that would result in a waiver where are you that nineteen factors were gone through that it would show i took effect it's not interesting in this case what they never claimed to be there's no suggestion that in the record that hyper the university of texas said we will be prejudiced in any prejudiced if they lost if they gave all rights to control the litigation to hike a comeback which it appears they may have done that would say they have made a determination that we are relying upon heidrick back to protect our matter and in fact that appears to be what they did when i dropped the backs to balance technology in the western district of texas you know your call watermen versus mckenzie in court yes it was a seminal case which distinguish we have commenced a district court declared tory judgement action against a party can threaten us and held itself out as having the right to do so there is no risk of a threat you know will people lawsuits against i dr university of texas implicated in that were not but the problem is the u t pattern might be held invalid and that will affect the interest of the ams already if that is that is correct  and in other cases your court has found that not to be an overriding compelling factor including in the dyna pine screen case where the the relief where if it is that appears to be the case university of texas has given control of the litigation to the licensee back then it is may be determination that it's interests which include the interest in keeping the patent ballot will be adequately protected and that's the touchdown under the rule one thousand analysis about whether the absent party will be prejudiced in some way that that it had not for and seen by not being present in and again i've not to repeat myself but university of texas although they submitted declarations in the district court no where in the record did they say we will be prejudiced if we are not a party and so it is in addition  the other federal one thousand factors that this court has articulated that the the resolution of a declaratory judgment action after this party has been threatened such as a one to three was favors the maintenance of the action and that where it's based where it's based in is technology came from mit and they were threatened there and they chose this is the form why recognizes the choice of form is a valuable thing it also it recognizes that  what university of texas did here was use the federalism of a sovereign immunity rules to choose its for simultaneously while it lawsuit against its licensing is pending which it knows about because it participated in that some no your honor i don't believe it is the last paragraph in the judge's memorandum order summarize the judge's determination which was that the district court was yielding to a later filed case in which all necessary parties were joined in the interest of judicial deficient at fish unsee and to avoid the risk of multiple litigations but your honor even if it was a room one thousand case the district court addressed each of the factors in its analysis without i specifically identifying those factors albeit but he did address the prejudice to the board of regents it addressed whether there was other available which have a common interest to be added as he didn't address them he did not address that question your honor the only case cited for that proposition is the dine upon case your honor and the facts there were easily distinguished they're the party and understand their position but but there's a general principle and there will be that adequacy of representation is as well and here the contract apparently did give hydro quebec the ability to honor they had rights in particular fields of use they had rights to sub license they have rights to enforce within their fields of use there are fields of use in which the board of regents did not when based on his conclusion was that the board of regents did not assign all rights to heidrick aback i think there's very clearly a necessary party rule nineteen a analysis the analysis of the judge didn't that's correct there are however that's also sassoon within the factors of the prejudice to the board it didn't specifically address the adequacy of the representation however what it did do is find that the board because it the invalidity defense might be raised in that action and that a one twenty three would be a proper party of sufficient already to litigate that on their behalf well your honor there is nothing in the record that indicates the right to control litigation they have the right to who enforce there is nothing in there that indicates they have the right to control and those are deaf or right to bring a suit and the right to control the sued are different there is no there again i go back there's no precedent this court that would establish two separate entities that have a common interest that one it's sufficient to bring one of those into court and not the one the one necessary  agreement was not made of record because a one to three never requested discovery of the agreement first let me say this is not a case where heidrick a back was attempting to hide a withhold the agreement a one  two it was a confidential agreement that confidentiality was owed to a third party that was not a part of the sit heidrick object did what they could they submitted declarations identified the substance of the agreement and they also offered to produce the the agreement in camera for the district court to review at that point it was incumbent on a one to three to request production of the agreement if they felt that the declarations were all the evidence in the record is consistent with the district court's determination that it was that the order of regents transferred some but not all rights to hyde nickelback there is not a shred of evidence in the record that's contrary to that there are and based on that determination and based on that term nation it the board of regents as a necessary party to this case now if you turn to the further point first of all your honor this was courts was i'm going to do this because i would be required to dismiss the case that was the basis for the decision it's not a discretion as i would and i'm doing this because i would have been compelled to dismiss the case of the question is was he would have been compelled dismissed that question well your honor let me address first that the characterization of the order and second let me address the the question of would he be held to dismiss the the district court case where the court can achieve a full resolution of the spew without subjecting the parties to multiple to the risk inherent in multiple lawsuits that is at eight nine your honor which is the last page of the order page eight that is where the district court summarizes the basis of it or its determination now turning to your last point  was judicially efficient to yield to later fall case even if it had required to do a rule one thousand b analysis all the facts are there and the findings are there the republic of philippines says if there are sovereign immunity that factor alone can dictate the the board found that there have been prejudiced of the board of regents because it's a field abuse licensee this court and international game co came to the very same conclusion about fuel exclusive licenses in a field of use that there are risks inherent to the patentee if the board of regents patents were invalidated it will be prejudiced you'll be prejudiced it will not been able to participate in the sit there's no lessening of the prejudice to the board of regents there is no order there's no way to invalidate the board's patents without prejudice and that there's not two separate as the district court found this would expose a one to three potentially to multiple suits indeed there is a second suit going on there's a suit going on in the northern district of california all necessary parties are joined were then to decide after reviewing the agreement or after addressing additional issues that this case go on you would have multiple suits between the parties and last the adequacy of the judgment the judgment there is still an adequate judgment for a one two three as i just said there is already a suit ongoing in the advanced stages addressing all of a one two three he's claimed as your honor one last point a one two three cannot sequel may end to discover a licensing agreement it never sought in the district court you will look in vain for a request to discover the agreement a motion the for leave to discover the green it a motion to compel the remit they never requested the agreement the best they can do is one sentence in a footnote of a brief filed three years before the motion to reopen three years and that statement is equivocal at best it in no way says the district court it must discover the agreement or that it's necessary for the agreement it simply leaves it to the district court's discretion to decide whether further review the agreement is necessary at that time they were perfectly happy to leave it to the district court's discretion to review the agreement not until they lost do they now say that the district court abused its discretion by doing precisely what they told them asked them to do to begin with which was to review the agreement last year on idol just like to dress there is not a separate special best evidence rule for patent licensing agreements the case that the case is that a one to three sites do say you must look at the agreement but that's not a literal analysis of you can't look at a declaration that supports the agreement you must look at the agreements up there is not some special best evidence rule it's simply a case simply stands for the proposition is you must look at evidence related to the arraignment there was declarations they were undisputed in the record as to what the agreements could you return for a moment to a point that you and judge dyke were discussing and the issue of adequacy of representation what that would be the only evidence in the record is paragraph nineteen of the complaint that was filed in a related action which  this there was nothing particularly about those rights there was the discussion in the in the declaration was about the general make use and sell rights the subsidiary rights such as the license to sub license the rights to sub license those rights and the rights to enforce those rights were not addressed in the declaration that's a declaration your honor is it a two seventy six in a two seventies i'm sorry eight batteries described and claimed in the patents and sued and then later say they believe that as the exclusive licensee it has claims against a one two three four infringement so there is evidence in the record  is this court is observed it's important in these cases to look at the entire agreement and not insists snippets of it quoted by self interested parties to see really what the agreement was about the general use the adequacy of representation issue for the district this in this manner they have the same lawyers representing them in his or his texas in texas and that's that's correct in texas but to the extent there proceedings in massachusetts i expect so as well licenses here they're inseparable from one another so that both parties by defending a patent claim will defend the rights of the other to that patent claim as well finally your honor this is not dine upon