upheld to no deference under the case law in this case a lower court mr ali yes you're the corporate structure involved here with your client is somewhat complex is there and we just go through a little incorporated and national oilwell incorporated merged into something that became national oilwell varco incorporated correct ok and then underneath what was once upon a time national oilwell incorporated was a subsidiary called national oilwell o p correct which changed its name to national oilwell varco correct and so national oilwell var filed in two thousand and five prior to the asset contribution agreement so at that time barker well he was the owner there were no new pleadings in the case my understanding was everybody in the chain of title was added us a pla because canada's unclear about whether it recognizes transfer of interests in lawsuits so they were all in there but ownership was never an issue in that case because the canadian counterpart had an exclusive last and there was a fifty million hundred twelve million dollars paying but the point to your question more directly the canadian company had an exclusive license to prosecute the canadian counterpart to the one for two three thirteen pat and that's what was done in canada and they were the lead plaintiff so ownership was never really an issue in that case but what i'm saying is doesn't it seem like if all of you guys whoever you are believe the national oilwell  no new pleadings so the time it was filed bork well i mean was the order but the case was prosecuted by lee as a by twenty thirteen that was well over seven years after the supposed to transfer to us as they certainly could have canadian in the colorado case you told the colorado district court that varcoe lp had changed its name into becoming national oilwell varco lp but of course that's not the case because we just settled the issue that there really sr subsidiary that are separate legal entities and so now we have a situation where the colorado district court was to put it charitably misinformed as to who wrong they get in my wrong in part your honor ok tell me where my wrong because it was a shorthand version for what really happened rather than tell the whole tale our local council said name changed there was something change national oil local was referring to was the name change from national known well no the district court took and accepted the entry by the plaintiff that its name marko wealthy had been changed to national oilwell varco l all i know is your honor what happened between the parties at the time in january two thousand and six confirmed by the contract and all of the actions are given us at that moment in time by the parties respectfully the statement by counsel years later in court which may not be fully accurate is not dispositive over the the conduct and that attitude and testimony of the parties in the contemporaneous documents at the time and the tax returns filed under the risk of federal prosecution to prosecute the reexamination of the one for two pac in that case we got caught between the rules conundrum the patent trademark office rules require that assignment that is filed has the patent number on it the case law does not the case there any evidence that there was a conversation going on among the various entities are the lawyers saying oh my goodness we can't we can't record that ca with the p t o which is in fact yourself as the new owner the p t o just accepts it moves on that's it that's all that is required it's simply notice it's not evidence of ownership your honor is correct but the rules require that it must identify the by the pat number or etc etc i understood the lower court to base its decision i want several alternative theories of why the plain language of the contract itself didn't actually transfer the patent at issue so could you do me a favor and please focus on why the district court was wrong to conclude that this patent was not a physical asset that was transferred pursuant to the asset contribution a that the contract unambiguously reach a meaning that neither of the actual parties to the contract intended and you're out of the lockheed martin versus west face federal circuit seven which we've cited so that words are given the competition in this race doesn't typically include patents but that this contract on its face makes it clear that the parties intended otherwise yes your honor because here is what you do you can see that delaware law doesn't normally consider patents to be physical assets yes sure so here's what the worry is clause of the contract as contractor desires to contribute all of its physical assets including but not limited to those s s generally describe an exhibit a the property excluding any capital or common stock if city areas or owned companies now a stock also your honor is not in the ordinary sense of the word if there's a last it so if the contract is interpreted the way our opponents in the court interpret this sentence would make no sense at all for example you can say all cars except brown buicks and that makes sense because buick is a car but you can't say all cars except brown horse so parties was in the only way a limitation of the transfer and that's confirmed of course if the court finds him with you and that's confirmed by all of the contemporaneous documentary evidence the secretaryship assigned later that don't i'm not interested in talking with you about parole or yes or no because i can't decide it what the parole evidence explains to someone is a question of fact it's not a question of law that is not something that i do in the first instance the top talking about parole  tell me why the plain language includes patents and in particular this patent and here is my concern even if you're correct that the parties intent as expressed in this overall document is that patents would be included among physical assets that were in fact contributed as part of this asset contribution agreement and the only way i can get to that is of course by looking at exhibit a and exhibit a actually has a line that states thank you so i don't think that your or your zero dollars worth of patents and so this isn't a case where they left it blank where it was undefined what they were contributing it expressly says some people are contributing patents as part of this asset contribution agreement but marco lp is not contributing patterns so how is that not plain language that indicates that no patents on by barco lp were contributed as a plant has no value unless it is called currently collecting revenues and there were probably hundreds or even thousands of p value without speculating we think this may be worth this much and rather than go through hundreds or even thousands of patents and try to speculate on the value since this was an agreed exchange between two series and one company and everybody knew what was going on they decided not to wade into that and try to assess the value for all of these fans so they just thought it was ok to save all and then less patents and that's what they did and they knew what they were doing and they that's what they transfer just looking at the just looking at i can see how it could be misinterpreted your honor but you know they had hired an auditor to assess the value of the assets that prepared exhibit a and it was attached and it was the understanding and i see that i'm almost out of time i'd like to address the present tense past tense thing very briefly if i could so i could make sure that i get that covered well i make sure i'm answer your question first ok well you go ahead  that i don't understand there to be a difference between federal circuit law and delaware law on this issue but i would be my understanding your honor that federal circuit law applies to whether it's a by government plans or is the point is if you know we were in delaware state court right now were state court would almost certainly interpret this provision in the ace yeah under delaware state law when it came to whether or not fifty million dollars of furniture and fixtures were transferred from far law but for every other asset that's listed in that table this exact same generic vision is going to be interpreted by some completely other jurisdiction of law and again i don't think it makes a difference for this appeal but i believe line you don't know what the make a difference is i see no briefing of delaware law on this point anywhere in this case so i'm just supposed to accept your view of delaware law that you're proposing to me from the podium the only precedence that's been offered is federal circuit precedents on this issue and the reason your honor is because section two sixty one is a federal patent statute that requires that the assignment of patents be in writing and as i understand this court's rulings it has said that that makes it an issue of federal law have to be in writing and the pop what qualifies as a writing sufficient to transfer a patent under section two sixty one is reasonably it doesn't matter what the other things as if is sufficient for delaware that's right but it's not sufficient for section two sixty one of the federal statute and that's why i believe it to be an issue federal you know any of those prior federal circuit cases were interpreted in a generic provision like this one it's talking about a whole one however i can say that almost like the employment agreements having done a bunch of them they're almost always shall the agrees to assign all rights and that would include patent rights trade secret rights all kinds of rights many of which are state law which until recently would be not personal knowledge this is what's explained in the opinion is that we were looking at your rights to be developed it wasn't meaning particular patton's it was talking about if the new employee invent something in the future then you will have to agree to assign it to us in the future if rights are secured on it so it made total and complete sense that that was a forward looking future based assigning it i guess i'm having trouble understanding why  clause would be governed by that very specific law that deals with an employment contract and later arising right and in particular in each of those cases i don't know if the clauses that issue pertain to other rights you may be right but the only one we claim to be speaking to was patents and it was expressly called out patents in the contract and like this one doesn't have a patent well i'd say that to begin with i think that's an excellent point this doesn't call out for explicitly for a transfer of patents so applies and not state contract law where you have no business attempting to usurp the role of the state courts assessing and governing general contract provisions like the transfer of all physical assets we're going to say the transfer of all physical  act require some kind of separate state about the transfer of power patent act requires the present assignment that's my understanding of law and i'd like to address if i could the notion of whether  every one of those examples in the employment context it is future developed assets here there's no doubt we're talking about some preexisting physical assets so just out of curiosity your assertion th isn't briefed is that delaware law would be identical to federal circuit law and say this is a future container ants all i can say is i'm not aware of a difference now does that mean nothing was transferred because this says perjury we don't know the records are silent on that because nobody made an argument that they were being treated different block so the record silent if i may i would like to address the physical whether physical could include patents and to be clear is that this report found that exhibit a includes into that plain meaning and the same would be true of intangible things as well they're not physical and again there's no explanation by novae as no icicle but if it says all physical assets including but not limited to those assets generally described in exhibit a those and that's how we came up with those numbers and that we didn't we put zero in any column where there were revenue generating and the district court expressly addressed that and said that that cannot be the case because first of all that's not the way the balance sheets are generally set up as evidenced by the balance sheet where furniture is it forty four million dollars but it's not generating revenue this report also noted that there is a separate portion of that she has studied that it catered to revenue indicating that this is not intended to be a revenue situation and third like all of these issues there's no explanation from and ovi as to why not from an o b there's been a couple of references by its attorneys in statements but there is nothing for men to be saying this is why we said physical assets rather than assets i mean what this physical meet if it's including everything there's no explanation as to why the dollar zero if your honor looks at the record there's nothing for men to be the says when we what we get it because a slice of generate revenue that's an attorney argument but it's not anything that's actually based in the record it's a ask a practical question if you prevail in this instance the pattern expired i think three years ago is that right i believe that's approximately correct if you pay all that means parco lp still owns the honor no not necessarily that's an issue that hasn't been adjudicated what judge sparks found was that in part it can't be cured because that dollar zero means either it wasn't transferred and they deliberately put a dollar zero or maybe or ron for not for at least three years worth of damages is that right potentially but it hasn't they haven't done it and so we haven't brought art and says and we haven't looked at it ok thank you anything desire to any reason to language and says that future tense he's ignoring the article one point two says concurrently with the execution of this agreement contributor shall convey a sine transfer improper to the partners of our position is that at the moment of execution that's when the transfer occurred it's present tense and if the court and i think it's a logical conclusion as an alternative conclude order but i don't know how you is at the zero s i don't know how you assess the value of a pattern that is not currently generating revenue i don't i don't know how to do that and rather than wade into that with hundreds or thousands of patents they decided to use the word all and in their mind that they were transferring all of the property and so that's what the document that says you telling us that today the document says all of its physical itself where is it alongside by the document itself because it says all of its physical assets including but not limited to those assets generally described exhibit a so exhibit a your honor is simply an example of the type of