recover the format of the sanction that was entered under rule thirty seven for the failure to produce documents number one and then number two whether j sham should be able to proceed on its exceptional case motion when the case has been dismissed the rule in the third circuit from in rebounds group would be that it's without prejudice and i'd say that in ray bans crew doesn't doesn't really apply here because in rebuttal screw the parties agreed that there was no federal question whatsoever here we have a federal question mara specifically played a federal question infringement under and standing and everything under thirteen thirty eight once they did under this supreme court's decision  district court had jurisdiction and subsequent to the supreme court's decision the third circuit in metropolitan life has said ok now we have to look at whether or not the statute that confer jurisdiction jurisdictional step is the only threshold jurisdictional statute in the standing for a party to seek infringement under thirty five u s c section two eighty one is not so under metropolitan life the decision would have to be that the case  rules that it can't be brought or to be dismissed for lack of subject matter jurisdiction if the case would be on in that category then it would seem that by definition it should be subject to being an exceptional case question you pass that when you make the claim that there is a thirteen thirty under thirteen thirty eight then the decisions from that point on have to be essentially i would submit have to be on the merits whether or not there is where there's a plaintiff can actually make the it ultimately could not prove that it could not prove that it was the owner of the patent because in nine hundred ninety six it was signed all of its rights to an entire portfolio of patents to me and i mean i was not that came down this case was effectively state for a while in that time period when that case got reopened and discovery restarted then we were asking for damages discovery documents once again we had two orders to compel to the district court the district or the magistrate said no i can't stay the case that's for the judge to do i need to keep this case going and keep discovered on mars wouldn't agree to the stay of the case they wanted to keep it going as well  i think at that point in time it was pretty clear that mars would not be able to continue now ultimately week after week after that we filed a motion to dismiss with the with the court in december of two thousand and eight that motion was granted the motion was granted with the court saying i don't have jurisdiction over mars because they didn't go the path once the court says i don't have jurisdiction and it can't right priest perspective worse it can't say that discovery can carry over to a new case this court's decisions are basically to the effect that once the district court says it doesn't have jurisdiction its orders are what even if it has issued substan orders those orders are voided so in that context we have a kind of a procedural nightmare because the order bringing any eye into the case under rule twenty five which occurred  earlier in the case following up on the sale of mars or i mean i by mars in two thousand and six that order is avoid have an issue or so any i was not in this case one of the points made and a motion was i mean it's not a proper party appeal of that cross motion to dial that cross motion before and we've moved to dismiss i mean from the case after that was briefed then i mean i and mars withdrew that cross appeal that cross appeal eyes last chance to be a party to the original action and of course it shouldn't be a party to the original action because the court's jurisdiction is decided based upon the complaint on the file and on the day that was filed mars was not the owner of the patent so on the day that was filed this case was originally filed mars do not have standing but we only found that out three and a half years almost after the case and proceeded the court granted sanctions court didn't have an objection to any of those fees and costs as far as how much they were we were those that had objections to certain issues but didn't have anything to do with respect to the word of that amount of money but when it turned around and said you don't get the money j n you don't get that money now because some of those fees may be used in the case to be filed by him enough but emea is not a party to the case originally so we probably can't be sanction and that was a sanction was the rule thirty seven sanction was against maher's enemy ai but i'm not sure that they can be sanctioned and the eye can be sanction if they weren't properly in the case so we shouldn't have to wait to whether in those another case which is a completely separate action which doesn't even involve mars to ask for the attorneys fees they were actually awarded in and as a result from what happens in another case it's as if a court says i'm going graduate sanction and i'm going to give you a million dollars on your sanction but you're go have to wait for a year to see if anybody out there was another case that discovery may be used it doesn't really matter if it's i mean i or anybody waiting for those speeds shouldn't have to occur until after another case gets processed once the sanction was awarded and there's no doubt it was awarded once a sanction was awarded in the v m placation chair proceeded and if he should have been awarded now the other issue comes down to the other big issue comes down to whether or not the case should have been deemed exceptional i would submit that under the are by decision the metropolitan life decision of the third circuit and this court's decision under late cubes and the fact that there is a need for uniformity with respect to how to determine a section two eighty five case that there needs to be an accommodation as between what this court's storable procedure position has been with respect to dismissal when the plaintiff doesn't have an ownership interest in the patent versus our bar and those other cases i mentioned now this also is the case the case where there is no possibility that mars can go back and obtain the patents so it can't ever pure and it patents are gone from ours so it has no possibility of getting a bat there are cases that basically say once if there is no possibility of it back then that may be the appropriate circumstance for a decision with prejudice i would submit this is this case that this is the the court i think is a threshold matter j c i'm as a bit of a quandary it wants to argue two separate line of cases when one instance it's talking about the jurisdictional line of cases which was its original argument both at the trial court and later in the briefing on appeal until it's reply when i discovered the are cases of this either wanted to shift its position so i posit that it needs to take a position one way or the other and as you heard in the opening argument i think it wants to have both arguments available i think they're inherently consistent focusing first on the issues presented in the down below the district court considered a twelve in one motion which included a motion to dismiss based on twelve b one and also included as a secondary motion a motion for sanctions seeking dismissal with prejudice and the trial court correctly looked for control and authority and found the bones were case which  is uniquely addressing both of those issues having found that case the court considered the holding of the votes for holding is is clear it says in circumstances where there is no oracle three jurisdiction a court must have no option no discretion must dismiss without prejudice what about those where you don't get the pool if you have a circumstance where there's no article three jurisdiction was only applies in a circumstance where the court has article three jurisdiction in fact the entire pool of decision deciding whether a statue at with a statutory requirements were jurisdictional or whether they were elements of a claim and says you know if congress doesn't give an indication as to which one it is you presume it's elements claim well here we have a very different circumstance you have well established law that says in the circumstances in which article three standing requirements of injury redress ability are going to be met by a patently if that patent plaintiffs must be the the owner or the exclusive licensee in the circumstances in which the plaintiff's is is neither the court has no choice but to say there is no standing so in this circumstance you don't need our ball or reed elsevier to let you know that  well established law that's a standing analysis although i do believe that the court below is a lot to look at certain factual details in order to render a conclusion as to whether standing is president not that's the power to decide right they have got to decide that i the threshold issue in this instance that is that analysis occur and i i would say that the only relevance of frankly of the coin except a case is that there was a finding by the c f c that in fact the ninety six agreement conveyed all rights from so when the district court probably looked at that agreement and concluded well i believe that there is no standing from ours here once you reach that analysis by looking at the ninety six agreement that doesn't convert into a will fifty six motion on the merits or the only case the one to look to the inner proper case to look to for guidance on the issue as to whether or not dismissal without prejudice is proper i would direct this court to its two thousand and nine decision and the university of pittsburgh in which it says the law universally universally disfavors dismissal with prejudice in a circumstance in which there's been a lack of such a lack of standing and it as a strong presumption that a dismissal with prejudice would be i and there are a a handful of cases in which there have been decisions in which a dismissal without prejudice could be included under a circumstance where there's no standing in those cases are familiar to this court  cycle and textile products and both of those circumstances were unique in the instance of textile products we had a very unusual circumstance where the patentee himself was being sued by a plaintiff's board to be an exclusive license it with the right to sue the court concluded that no it was it fairly since and in that instance the the the plaintiff with her would not prevailed and would be found to be lacking standing the court said it was it was plainly tax the there was not even an issue there was not an issue on appeal as to whether dismissal with prejudice was proper or not believe the reason was and this was actually part of the holding in h r tac where he said one of the reasons why i believe why it was likely they didn't challenge the dismissal with prejudice is because they knew they couldn't be sure that's not our problem here that's not a fact pattern here and cycle the court had a slightly different fact pattern again at the district court there was not a challenge to the dismissal with prejudice the nature of the dismissal was not challenge until the appeal but more importantly and this icon case there were two attempts to there was a there was a follow up attempt a curiously ending that was  successful and we don't have that circumstance here in fact there are several ways to cure standing in your universe of pittsburgh tells us that all that we have to be able to do is have a parlor ok not not not bars but a parlor and in this and with the two thousand and nine district court action has been filed by f b i vs j c m in fact we have accurate but not only is very likely it's already happened now furthermore of course could still take an assignment from i mean i to this very day it interest from any i they would have every incentive to do that if their only option to have the case proceed was that so the curing notion is there curing is not only of curing it one has already occurred and to mars could simply become the ass in a of the pat rights as well so i think the curing is a red herring here and i think that's why comic text our products which are outliers to the universal rule that says you know with rare exception we're going to dismissed without prejudice those cases are clearly  on the factual we have here today was respect to the sanction for the discovery violation the court was not able to identify which attorneys feast well within the scope of it orders and so the defenders may be better able to identify which discovery could have been avoided at the conclusion of the new case they may request discovery fees associate give it an accounting of the fees that could have been a avoided at the ninety six agreement been produced earlier had it not been the late and it said start with january of zero six go up to the point of germination of the case and let me know what could have been avoided rather than follow that clear instruction which you had at least two bites at the apple to respond to p c m decide it was going to put in every single dollar of discovery january its two thousand and six to the germination of the case you jurisdiction of the court over see this particular order and the apportionment of the attorneys fees as appropriate if that was necessary for the district court to properly administrate the already and we would be agreeable to that  but i also offer you the tyco case type will be ethical and there was a circumstance in which a late in the case in fact at trial there was a challenge to standing and even in that circumstance the court properly determined this court pro determined that as mr without writers was the proper course of action and it said it should take to be able to assure the ownership the fact most if not all of the evidence testimony and rulings developed during trial should be a political to a subsequent proceeding between the parties so in that that scenario is very similar to our own which the court said look most of the stuff carrying forward when this is cured would see what's what's going to be in play and there was no in fact that was in the context of deciding whether there was any forward it wisely picked a sanction that it would be able to try to discern between what is your is and the basis based on the way at a future date i mean i think the court frankly was within its inherent authority to deny a sanction at that point jurisdiction and it was again only until the reply brief year that our bar was picked up as being a backup argument the challenge with here is not really a backup our it's an inconsistent argument because you can't on one hand of standing as to is just a determination of standing under article three to bring a patent case is an element of a claim so i believe those positions are mutually inconsistent and a final point on that is i case as one follow up on the issue of curing the age architect case stands for the proposition in the instance in which a district court has found dismissal without prejudice was the proper finding they found not in that case there is no cure for mars in the case that doesn't have that it doesn't have jurisdiction on it had no ownership interest in the past when it was filed so it cannot possibly be a cure or even an assignment back to mars today would not tell mars case because mars case when it was filed was we're entitled to damages from this point forward from the filing point forward because there was no marking of the products that use the patents and there was no prior notice of the products used and since there was no parking and no part there was there was mark there was no marking of products that used the patent and no prior notice the damages for that period of time when maurice filed the case and propagate the case are not available to anybody even if there's an assignment back today if there's an assignment back today that would be allowed to mars to continue the case from this day forward not from back in time it didn't rule it would not relate back to when the original case was filed would be this day forward and that's a completely different case damages for seventy million dollars alleged in damages that's wiped out nobody can get that because because nobody gave notice that owned the pap so that can't cure and immunize filed a new case mars can't file a new case if  anyone's got a new case and they're mutually exclusive now they're both claiming ownership interests university of pittsburgh is a different kind of case because at least pittsburgh only part of that pat marzo no part of this power when i was five  and it gave it up in one thousand nine hundred six and it knew that for a long period of time when this case was going on mars was probably gaining this case for over two years all the time it was getting ready to bring the appeal of the coin except his case here on the exact same agreement on the exact same issue whether or not that agreement a vestige of jurisdiction but it never gave that agreement to j c and there's no excuse for that it was required by multiple words of course maher should be sanctioned for that they were sanctioned for that the issue is not whether they should be in the second bottle water issue was how much it was going to be and the court says i'm not going toward that right now because maybe i mean i can pay it maybe i mean i can use some of that discovery but you can't rule that over to a completely different case because that case does not cure mars standing the fact it can't the issue was one of the issues was when we said it was an article three case because mars couldn't prove standing was they didn't own the pat and part of being in a parting of having a case is to basically have article three case is to be able to make out the element that proving and the plaintiff loses on that issue then i would submit that that has to be an issue on the merits and when it's an issue on the merits then that allows the prevailing party to be the party that the the prevailing party  would it would never be appropriate to dismiss a case for lack of standing without purpose if the party has no possibility of it had no interest in the ownership of the patent when the case was filed and no possibility of curing ye then it's then you have a darkness a cure if that is simply a lack of standing there is a lack of standing and you know no interest in the patent i'd say yes you have to dismiss the charges in every case because there is no reason not to because if you don't have standing when you filed the case what difference does it make if it's with prejudice you can't bring that same case again if you don't own the hat if you go out and buy the patent after that you're filing a new case a brand new case doesn't have anything to do with the original case but you'd be for clothes from forever gone for at least from the time period up until you you know you basically buy the patent so that you then have a claim because you didn't have any claim the first time you have any rights the first time you should have been there  thank you thank you