have jurisdiction we have a situation here where the district court has concluded it did not have jurisdiction by reason of lack of standing of at a point in time for and a half years after the original case was filed not to have received an adequate or sufficient either assignment or right to pursue a cause of action predicated on an assignment and in my opinion or some area of ambiguity they are fish it's not just made to the issues before this body but the and found felt that this was intertwined with the merits and therefore the merits of who had title to these trade secrets so therefore decided as i understand it that your client won the first of the two of these cases is that the issue of standing be decided upon summary judgment standings not the way the whole the whole elements or any other element necessary to prove procreation a trade secret to be determined what we agreed to to be determined on summary judgment principles of court to drop out to whatever factual predicate the court might have to weigh in order to make a determination on that issue of standing was limited simply to that because there was no would be no jurisdiction  is procedurally no different that it well the in one motion for purposes of determining the jurisdictional question of standing that would be that yes and particularly given that the of such a period of time it seemed more appropriate that whatever facts it been generated during that period of pendency be a part of the court's consideration but doesn't doesn't really make a difference we hadn't construed that way now when all when we got into the briefing after the dismissal of the second case then we least frankly scrutinised all but much more detail what the limitations issue pretty well dispose of the trade secret argument so the only thing left is inventor shit that i mis read that that is correct that's absolutely correct your honor so i'd be a bit let me address the statute of limitations the standalone piece of litigation however the determination on the issue of standing was still before the fifth circuit so under texas law and our knowledge of all statute of limitations law and when the when the right of one party or a party turns upon the determination of a right or are not right of another party that is a permissible delay as long as the defendant is on notice in all respects of the nature of the claim and that that is really the the essence of both the legal and equitable tolling principles that that are involved as far as the statute of limitations is involved there was no secret here and nike was fully aware of the name there was no surprise there was nothing new as a matter of fact other than the inventor ship claims which arose in the case of seven of the eight patents after the date of filing but not these texas actable towing cases and go on the proposition that the second s is not barred because it couldn't could not remember off until the conclusion of the first suit and you just conceded here that gillick could have brought a suit without waiting for the conclusion of the first suit what i didn't say well your honor saying it would not have been he could have brought it but it would not have been appropriate possibly it would have been a rule eleven violation was he he would not have known that he had whether or not he had a right to bring the second suit until the first matter was resolved that is yes he physically could have filed at a courthouse but it would not have been inappropriate filing because he would he could not have been away or whether or not he had a right to morning i'd like to first address the issue of whether mr gillat could have joined the case in january of two thousand and four when the complaint was filed in this case we immediately responded by saying we deny the allegation the triple t gold has any ownership rights in these trade secrets we propounded production request asking for written assignment documents i personally depose mr gillat twice and asked about the assignments and i got conflicting testimony but i think there's a document i don't know if there's a document the case progressed all the way up to the fifth circuit and back in on the eve of trial the second time judgment bride looked at me and asked whether we're still contesting standing and i said yes because we don't know who owns these rights judge mcbride then turned to counsel and said is there a written assignment for the first time we learned there was a written assignment document at that time we learned there were board resolution documents and special shareholder meeting documents that had been produced and when they were produced the judge conducted a deposition of triple to go off in his court room mr  the witness on his own behalf and on the company's behalf and that's when the judge determined essentially he was at a loss to know who all these rights because in those resolutions there were all kinds of references to securing the rights from individuals such as claire loucks and the elizabeth gil killing trust and at that time the judge offered to give the parties an opportunity to supplement the summary judgment record and he listen to the submission or look at the submission that triple t i'm still at a loss and if you look at the pending pages for a ninety four fifteen he uses those very words as to who has ownership interest in these rights and as a result he wouldn't conclude that mr killick was the true party interest under rule seventeen so for correction of a better show to the extent that that is the case if you look at paragraph fifty five of the complaint the january two thousand and four complaint triple teagle said essentially nike began allegedly using these so called trade secrets in the patenting process as early as two thousand and one at the end of discovery in two thousand and five triple t sought leave to add inventor ship counts and said they arise out of the same of think you can divorce and with all due respect your honor and here's why well we can ask hypothetical questions you know that we do that all the time i understand i understand and i'm trying to answer the question but if i may go back to the time when the fifth circuit remanded the case after being misled about who when these had an applications came to the fore the fifth circuit in two thousand and seven said gee i think patents are relevant i think they're relevant to this case go back and add them at which time triple t pretty in the context of the parties where the identical or were they in privity then you look at the transactional test and all of the claims arose out of the two thousand meeting between mr states and mr gillat so if you go back to the transactional tast all these claims had to have been raised just as mr kelly could have been named as a party he was in essence in privity with the company and these these issues could have been raised at the time triple t golf raised the issue of investor ship in two thousand and five and tried to add patents there was no argument that it didn't  own the rights that was you do you agree that under our decisions of media and university of pittsburgh that if the dismissal here was for lack of standing that there is no reason to  think there's a race to to kind of bar here because the court exercised jurisdiction under a very specific body of fifth circuit law may be you not answering my question if we follow all media pack and university of pittsburgh which both seem to be directly in point because because it was ninth circuit law that was applied there's no indication that the ninth circuit follows the same test of the fifth circuit does in so far as converting the jurisdictional question to a full trial or  that's what we have here in if you read media tek it was a clear standing issue if you read this case at the at the appeal the appellant's behest the district court converted to jurisdictional question to a full decision on the merits it wasn't summary judgment on jurisdictional issues if they would have reduced summary judgment evidence of two of the three elements of a train of thought about how to understand how can be a bar or even that for a marriage decision because it would only be a marriage decision the t t g didn't own the trademark no actually it's a merits based decision with all due respect your honor on two of the three elements of the trade secrets cause of action under texas law under texas law guy versus carpenter which cited in our brief you have to show ownership of a trade secret a confidential relationship and then you serve misappropriation of more freedom under your view of her own merits to see if you really just a marriage decision on the ownership issue right no it was a marriage based decision on two of the three essential elements of the cause of action because at least understand what you're saying when you say well often it was a merits decision it was a merits to solution the term of the p t g didn't have ownership but how can it be anything beyond that well if you if you look at the fifth circuit the district court's decision he struggled with two elements of the cause of action when it converted the jurisdictional question to a full decision on the merits to a ruling on the merits he said there are two elements that you have to prove and i need to know whether triple t gulf has both of them i need to know a with the only trade secrets in other words whether they were signed and i need to know be whether the confidential relationship the alleged confidential relationship between mr really when the district court dismissed the case initially that went up on appeal and was affirmed in his decision to pages this is the summary judge this is the summary judgment yes so you're saying the summary judgment motion was not but even if that's true the puzzle is how did this record reach those marriage issues if it was most if one of the issues was who won't the trade secret referring to ownership interest doesn't say anything about the lack of a confidential way she would know what you're talking what with all due respect your honor if you read the last sentence it says well i can read the entire sentence so it's in context the dismissals appropriate by reason of plaintiff's failure to establish standing that's the only possible element of the cause of action that mr gilley could have acquired from mr stites during that meeting because the other the other issues to the transfer of the so called trade secrets which he would not have acquired from mr stites those to the the two issues when he converted this standing issue to a decision on the merits i can provide citations to the two elements being of concern to him again one being the assignment of the rights and second being the sign of what do you which is the conflict remit to keep allegedly keeping confidence of the information in order to get where you want us to go we have to buy this intertwining concept don't we i think you have to follow the circuit law which is what the district court did which is what the fifth circuit affirmed on if you look at eighty three seventy eight and this is a final judgment of the fifth circuit that the district court cited in history in this decision dismissing this case he said it's clear to him that the district court also dismissed on the letter of its decision seemingly issued a final judgment on the merits of this case two minutes but i'd like to address the statute of limitations issues first with respect to statute of limitations there is no excuse me no dispute that the statute of limitations has told this lawsuit was filed five years and eight months after mr killick knew or should have known of the alleged misappropriation of the trade secrets two years and eight months later the two doctrines that are due say no actual fell to two years and eight months later in the context of legal tolling under texas law a second action to be has to be in order for it to apply the second action has to be based upon some determination that in the first case so the viability of the second case has to be contingent upon the first case here the first case wasn't about who owned the trade secrets as between mr killick and triple t got so legal telling doesn't apply mr gilley could clearly a file this lawsuit on his own could  here the whole issue of who is joined and when they were joined were decisions made clearly by mr gillat and council nothing external again back in two thousand and four when we contested the issue of who want to the so called trade secrets we said we said you know be put to your proofs they could have corrected the issue there was nothing extra nil here at all so i see i'm about out of time for all of the reasons that we set forth in our brief we respectfully request that the district court be affirm mumbling i'm sorry yes i'd like to address the statute of limitations issue and just amplify upon some of my earlier remarks  it in your view mr gillat could not have appropriately filed a parallel claim to have alleged standing in one case wall a company in which he was at eighty percent stockholder was sued for exactly the same thing  responsibility for managing the litigation he was a principal actor in the alleged appropriation of trade secrets for him to forgot how to on his own in a separate direction in some other district court questionable or dubious or vulnerable to attack he would have taken or considered action long those lines you have to consider his position of whether it's the ownership issue was being challenged before the statue of limitations assignment as a matter of fact this court document which mr wright prefers itself was never an assignment per se it was simply a confirmation that he had made an oral assignment that was the reason that he had received his stock so there was no written assignment there was a written resolution with that confirmed that he had made an oral sign meant approximately three weeks after his meeting contingent action that he's not an attorney he's a technical person and none of the lawyers had any reason to doubt as we try to amplify in our reply brief the lawyers had any reason to doubt the validity of the oral assignment under florida law to any any final point yes that the inventor ship claims in any event are not subject to any statute of limitations argument and certainly