understanding as having all of the inventors of the owners before the court when there's a challenge to the ownership before the court that has to be addressed the jurisdictional matter and you cannot default that issue or exclude it and simply accept that the you're pitching with meaning that courts could never invalidate a patent for mis inventor shit because we would constantly be dismissing those cases for lack of standing no i don't think that's true judge six and that actually makes perfect sense in light of the principles in the reasons for the standing rule the reason was court requires and the rules require you to name all of the patent it is in part to protect for other patent owners from the adverse consequences that occur if for example the patents invalidated without their participation likewise it protects the defendant from multiple lawsuits in the event that one of the out one of the absent owners then comes word and tries to get damages as well and if you prevent people from making this sort of challenge some what i'm wondering is that just in the limited number of cases i've seen this whole investor ship questions and bound up in a validity question not a standing at it in so maybe year you're better served in raising it as an adventure ship question i think the difficulty is your honor because the district reported us to default on every issue relating to inventor ship that means the issue can come up only as a standing held was not available to us because he defaulted us and we think that that is just incorrect because the ending is a jurisdictional question it goes to the subject matter the power of the court the court can't default you on the sick question's going to dismiss the lack of standing that the judge denied would would you read that judge's decision as saying i've looked at the records mislead has been identified as the inventor of the pat it's assignment here to drone technologies that's all we can do for standing purposes or do you think the decisions best read as i've looked at all of the testimony and evidence about inventor ship and i have i find that misleading in fact is the inventor and so therefore everything else falls neatly into place for trying technologies there's two ways to read is decision which one is it do you regret only my answer is going to be  neither and but i think with the distress it is it's possible this is really just inventor ship but i think the evidence is sufficient evidence is sufficient to show that she is the sole inventor with the district or didn't do is to take the next step and say ok it's my job as the district court to make a determination whether she is the source and on this record i make that finding and frankly on this record that's an impossible finding to make if you line up the claims against the testimony it's absolutely admission that she didn't know anything about the subject matter we moved from leave to file to amend our answer to make exactly that argument the district struck it as part of the sanction and so frankly if the court believes that there's difficulty trying to sort out whether this is inventor ship or whether this is standing that goes away entirely if the court also can simply conclude that it was error for the district court to do an across the board to fall for all questions including questions look at this and thinking why didn't the parties kind of try and sit down and see if the only thing they were fighting about is the source code and what is the source code on the control device on the drone that's flying around exactly  nation of the source code on a computer that could not be connected to any other circuit or web or any is that correct am i misunderstood that's exactly right we've found a model we follow basically the i t c model which  review it on the secure computer in a secure location you printout relevant pages those relevant pages you can then take with you but they have to be locked up as well you can't read digitized them into that was that request as i understand it was what i saw in the record appendix was something that was submitted after the judge had granted this motion to compel right following the alleged noncompliance with the july one orders act correct yes or are we originally was that proposed earlier also what used by the i t c in that we were proposing and in fact this is also right now today persuasive the conditions that are used in the court a lot now recognise that these conditions are necessary to protect against unauthorised it's at the time back in that's set up and designed to protect people's interests and he he just decided well we have this protective order in place and we're just going to follow that right i think it was i think it was because r had fallen behind the reality of the dramatic risks that are involved when trade secrets like source code are not given adequate security and the judge had before him example after example after example of other jurisdictions and the approaches they take jurisdictions that are regularly dealing with these high tech issues and approaches they take to protect source code and i think it's an abuse of discretion to simply say we have this highly confidential source code but we won't predict prevent it from being placed on unsecured from drives unsecured laptops being e mailed to g mail accounts will provide none of those protections i don't think any government agency in the country even with moderately confidential data would permit their employees to treat that you know that way but i don't think any district the you know it might be tough for us to say that the district court judge was without any discretion to simply use the protective order to protect protected information but you know there's another argument you have which is that the other side did not meet its burden and its motions to compel for explaining why the source code was so critical for their  in terms of preparing for infringement contention contentions and things like that when it came to whether you complied with the requirements for initial disclosures and whether that what you had already provided was or was not sufficient to show the operation of the qs devices i think that's right judge john and i think i should be clear that even if it was an abuse of discretion it's certainly such a sensitive area that parent protecting its trade secret source code when it does that it shouldn't result in across the board to follow it especially couldn't do so when you look at the type of balancing the court's most to do under rule twenty six and the local rules require this was not your record production the local rule said make available for copyright spectrum or produce source code documentation schematics or other documents sufficient to show the operation of that used to vices and there's been no finding at any point in this case code they would not be able to establish that the ad was in train just now i don't think there's any evidence and there's certainly no finding that they couldn't prove infringement without the source code and in fact this is because these are just initial disclosure writers exactly how this drone operates and how it's responding that is then compiled and put on devices to make them actually operate in the compiled code isn't very informative you can't really use the source code that was the key is the kingdom because it takeoff automatic landing out response to changes in when how it changes its angle without flipping over how it does all these amazing things almost instantly any asli or all of their so you have that is in your view the source code discloses how to put it very briefly the drone flies in operates it is the value wrecked everything yes it everything in it is the absolute value of the company isn't it software not in the or just of the documents not chinese language copies of the documents she said she couldn't talk about she didn't understand she couldn't explain the technical aspects of the invention how were the technical aspects where is the source code in the pa it's very simple your honor in both patents there's one independent claim and the rest are dependent clients that one independent structure and two pieces it's a remote control system having one piece which is a remote controller which is the i phone the controls the rope remote control device and the second piece is the remote control device in each of those sections the way that the independent claim a structure there are signals that are created signals that are sent signals that that there was for us to be able to try and understand you in order to demonstrate infringement you need to show a correlation between the proof and the patent exactly in most observation not of how the electrons move within the computer chip but the over it performance so i'm trying to understand why the course source code is a necessary element of proof of infringement but let me give an example your honor there's a claim element referred to as target motion signal the target motion signal as originally created in the remote controller based on the motion controller and then it sent up to the remote control device in the remote control device that target motion signal is acted upon within the device that's what controls the drone as mr lincoln described what we had honor as i explained we were used to when we were inquiring about their source code so that our technical expert could analyze what the accused devices do once the various signals are received by the remote control device and we ha block block diagrams be good enough i mean i guess what we're hearing from the other side is they produced a lot a lot of pages of technical documents including you know flow diagrams and things like that on how the drone operates versus as well as how the remote control operates why do you actually need to go all the way into the nitty gritty and see all of their source code but that's the question because frankly your honor our technical experts ask for it we don't direct them we don't tell them what conclusion we want one of them to reach they ask for the information that they feel they need to perform the analysis and hand it and i guess the next question is for your motion to compel that what they provided a was not adequate and be it was not up to them to decide what was sufficient to show what was not and i think the district court reviewed that record to review those arguments and made their find  signals getting sent up to the remote control device what happened once they got up to the remote control device we didn't have that information because there wasn't willing to provide it would you say that processing module driving you need to disclose that in the specification well if it's not known in the prior art that would be correct but actually we have admissions by parents here they filed two ip ours with the tap  a document was filed after that motion to compel was going why was that not enough i mean why is that not assume for the moment everything you say about needing the source code is correct what your the initial disclosure documents that they made that offer i was fortunate or have been involved at the at the district court level with the case some much more familiar with the record so what you're saying is the first time this offer was made is in that paper that was filed seeking a protective order following the motion to compel is that what you're exactly your are august first two thousand and fourteen at appendix page numbers nine fourteen  out and it was a result of those discussions they had very strict limitations that were frankly going to encumber our expert in income or and preparing our case having to slide in houston to look at the source code having to arrange three days in advance for them  to do it not be able to do what the experts wanted to do with it which was sort of simulate what goes on with the software and things like that because we would have to do it in opposing counsel's office under their watchful eyes order explaining the reason for why it was going to grant you access to all the source code then what should we do with that he that is that it grounds for vacating the order  don't think so your honor i think this court has a long history of respecting district works decisions in terms of discovery roles in terms of interpret in their local roles in terms of managing their cases and frankly if this court is inclined to of source code meet that definition or frankly your honor the issue is whether we've gap the source code and the remote control device if we if we get to see what happens to those signals once they're received by the remote control device parrot decided that was what was sufficient to show which is the language and little pat rule three point one we just need to see the source code in the in the room remote control or we don't need to know what happens when the remote control device and that was their position with the initial initial motion to compel the court ruled against them two days later they filed an emergency motion for reconsideration making the same arguments the court ruled against them begad they subsequently said we're going to comply we have or will imminently comply with the court's order and then they didn't witness a senate time they were they persisted in continuing to propose offering to make it  inspection and never said yes we are going to provide the on board source code and never said that they said yes they are planning on complying with this water by july ninth by the following day but they always propose clarification of the order to please allow them to control access of the on board source respectfully disagree your honor they made no distinction after the first order they were going to they were willing to make available their own source their onboard source code through making it available for inspection in the just that was how they were looking to try to work with and comply with the july want to order in the district court rejected that argument the district court ordered them to produce this right but i guess my point is that you are saying that they were blanket lease saying they were going to comply with the order and they didn't that's not exactly true they were always looking to try to preserve protections around there are on board source code respectful and disagree your honor because they made the argument in the in the emergency motion for reconsideration the court rejected it a second time after the initial motion and then they said we have produced or will imminently produce documents required to comply with the order they didn't say except for the source code which we still stand by original argument they also didn't file a petition for writ of mandamus at that point which you know what have been appropriate but but this was just sort of the process they went through they were changing positions that they were offering  don't agree that they kept changing their position let's also assume that i still don't understand why you need the on board source code for at the opening act of discovery initial disclosure isn't the beginning middle end of the play this is the opening act of the plan so why did you need the on board source code for developing your infringement intentions when you already had fourteen millions of pages pages of documents that they had produced in terms of the initial disclosure and virtually all of that is stuff that came off their website or publicly available information there was nothing that was contemplated by role three point one internal documents technical documents flow charts diagrams or source code and in addition your honor that this isn't about source code and wasn't only about source code there were two models of accused devices bebop and many drone they refused to produce which he talks about providing initial disclosure sufficient to show the operation of the used of of devices listed in the complaint well right now at least with respect to those two devices they're not in certainly within this court's power to say the church watt got it wrong but under an appropriate protective order and this is certainly part of the entire did this is it not in terms of protecting this extraordinarily valuable offered to make it available for observation in the environment in which it can be transmitted and copied and that's been refused parent well it was refused in the context of which which is was offered which is two months later after the court had twice ordered pair to produce it and so here we are are you arguing about it when it might have been resolved in that two month period well it might have been resolved except the restrictions were to agree just that they prevented us as lawyers in our technical experts from doing the job they needed to do with the source it was as if they weren't giving it to us at all we would have to sit there and read it on a screen ask permission to print portions applying to patent cases in place apparently this is never been an issue and that's never been a problem so there was no need to do it and tell a parent came along and said we're going to make this is expensive and it's difficult for the plaintiff as possible we're going to make them fight for every work we're not going to give anything parents head of legal sat in the witness box six feet away from the bench and told the district judge i understand the order i know what i'm supposed to do i know that there are consequences for not complying in i'm still going to ignore the order she said that to the district court and she sat and we're not going to do this until we're forced to do a federal circuit they had at that point they had filed a petition for  subsequently denied the petition we never saw any source code we never saw it under any circumstances you know frankly for from my perspective these offers were teases they weren't legitimate offers they were they were teases in terms of dragging this  ours were going up run their course and that they were going to be successful in iraq yars and if they could simply drag out the district court proceedings and make them cumbersome and expensive that then with went in and it didn't work out that record if you look at each of the limitations she did not understand what they were didn't understand the modules didn't understand the signals i know that council now says well there was a language difficulty there is no claim of language difficulty below we had to interpreters an interpreter to check interpreter neither so there was a difficulty of language she had the chinese pounds before her by that time and in fact the one thing she didn't understand wasn't the questions she never said i don't understand the questions which she didn't understand was the technology supposed to pose lee invented and that was true of all the other patents that she supposedly invented while her husband was going to make this about inventor ship it doesn't seem like there was a proper i don't know out discovery nobody's objective that the record is incomplete and the record is quite frankly quite clear that it cannot be that ms lee is the sole inventor of this item when she does not understand how any of the modules work w and she does not understand what the signals are when it's comprised of modules they communicate to each other with signals this record is absolutely wrong but i think i might be belaboring that point a little bit because i would probably prefer to switch very quickly to standing because that could  sanctions because that would ease whether or not we have an issue in mentorship your or whether it's really an issue of standing and turning to sanctions even if the district court didn't abuse its discretion in requiring us to true over unsecured copies of our confidential source code and we think it was an abuse of the gushing because i just can't imagine any other just record anywhere in the country ordering apple or any other high tech company to turn over its confidential source code with no protection against it being e mailed no protection against it being put on unsecured funder has no protection at being put against and so your laptop i just can't imagine that happening is outside the box but even if we're wrong even if this at least is an issue the points ou before from the other sport not the entire focus up to that point was on the controllers first board which was public source and the focus was on that was because we had gone through different changes we've actually pulled out the allegedly infringing functionality from the controller for a period of time and they want to see how that was done and try to determine the importance of that but that was all turned over the moment and went to the onboard source code by july third we are asking for clarification from the district   this is easy for me the same with the appellate twenty twenty hindsight which you know not mislead fair trial counsel get run and say we can't produce that without protections we will not produce that without protection if the district court's inclined to order us to do so please impos appeals but no one is saw that coming frankly and no one's really in string gauging that kind of brinksmanship which isn't necessary we tried to do is we tried to make it available on different term after different term that would produce  security but meet their objections so for example the first stop we offered to make it available on the same terms of the i t c that wasn't good enough so we offered to make it available on a secure relativity database where they could review the source code on screen  own offices without any monitoring for us that wasn't good enough we offered two months before the contempt hearing two months before the contempt hearing just stipulate that we practiced every single limitation of the onboard vehicle taking that issue also were never told why do you need that the source code why isn't everything we gave you in these initial disclosures not good enough to get you past that initial point and that's the last two points i want to do is look this is about initial disclosures we to a sanction across the board and it seems that under the circumstances the one thing that seems clear is an across the board of thought on issues that have no relationship whatsoever to the dispute of source code so for example control or limitations for example second opportunity to explain why you know it believed that your initial disclosures weren't that enough to comply with yes all three point was yes certainly the district court might have that opportunity the ordinary was an abuse of discretion standard the district court makes a decision the first instance i think given the tenor of what we've got a very likely result is we will get the maximum sanction possible and therefore i think would be very helpful if this court rejected like the outer boundaries and the circumstances as to what it thinks is appropriate but i should make clear though that even in the district courts below it's new local rules provide exactly the protections we're asking for and one of the provisions those new local rules say when you're before the court the parties are going to have to now sit down and discuss whether these no local rules and these new protective orders should apply and that's at the very minimum one of the things that we think should happen upon a rematch is we should have a chance to go back and apply the new local is which do what  adopting them or so they're going with the old rule you know i don't know how people are handling these local rules all i know is that they apply to new cases and parties who have ongoing cases have to discuss they have to meet in confer on whether they apply and they provide exactly what parent was asking for all along and certainly under those circumstances certain of circumstances we should restore the true finding function of the trial here and reverse the sanctions remain on this case for full consideration on the