reason i raise that question isn't it justice white's opinion and that what is it that puerto rican case he stresses what one of the critical things about the eleventh amendment is that people will not be subject to having to litigate a case i think the sub statement that the immunity is to be designed decided before you get into problems of discovery and here clinton is exactly the opposite you've been through the whole trial of this think everyone agrees it would be effectively on reviewable if you had to wait until the final judgment of that's because the immunity gives you the right to avoid a trial but here you've gone matters university to have to see them so there is one of every that's not the source is it the question is the trial the issue the judgement on the license and what may happen in the future when it did didn't it there's no question i don't think you said that the language didn't when i was ready i thought your argument was that the person who entered who signed the contract on behalf of the university exhaustively through your appendix and i don't see you raising even colorable said the issue of miss griffin's authority at all now the best case i could give you is on jama well after the trial which by the way is way to late under all of our precedent the best case i can give you is you there make some assertion about the university of massachusetts did not have authority to enter into a sovereign immunity waiver now i would imagine under the trustee clauses with regard to university of massachusetts as you're standing here today you would agree with me that the trustees of the university of massachusetts have the ability this is your jamma well post trial i'm looking at the cover on page twelve fifty nine you did not raise this during the trial because it is true well then you can't raise something for the first time after there's already been a full trial and in the well we have high position in the university system my guess is that she signs past license agreements all the time my guess is more than a guess that they will have this clause in them because i doubt if based on the jurisprudence it's evolved anyone's going to enter into a patent license with the university if they know that they are going to have any recourse so here are you saying that every what you're saying if we  for so long but her entire action was ultra vires and unenforceable and incorrect and nobody said anything all these years that this contract has been in effect and then when there's a dispute this person in the say was not authorized to waive anything had entered into a contract with the language that we're now saying might be adequate you would no longer range the argument that she had no authority  actual authority all to be candid i don't know that we can explain how she acted story before this panel at this time because no discovery was taken on that issue because that issue was never brought before us in the record that you can point me to that supports her having actual authority while other that occur obviously she testified she testified at trial that she was a signatory she did not testified she didn't have power to get in the problems when you raise in your shoes upon a thought or on time to find out is whether there really make some argument that there's no occasion in this case to even look into whether the trustees did or didn't delegate to or sorry in the way in sovereign immunity because necessarily inherent in the execution of such an agreement is the authority to do whatever is necessary for the agreement to be effective for the person and if he makes the judgment that pursues are a goal for the university to waste auburn immunity in a particular case or not wait sovereign immunity that's her judgment not and you don't try to go behind that and say well she didn't have a sergeant to do so i think it's appropriate for the university now faced with an adverse consequence of this agreement to make that are i think that they didn't raise it from six years doesn't necessarily mean a wavier well that's a that's a that's a whole different set of issues and certainly you know what i found noticeable was in their opening very few match points we did or are you aware of our precedents written by the presiding judge irritates me when regions of the university of mexico versus night in two thousand and three which clearly says a waiver of sovereign immunity is an issue federal circuit law hurdle the supreme court ten spoken in some depth on the eleventh amendment patent dishes and within the last few years and that's the law of the land i don't see any controlling difference between six circuits and the federal circuit as far as this aspect is concerned as far as the issue before us is concerned your opponent says that whether or not in this negotiation your client thought that the university was waiving its immunity in case of dispute they didn't do it they have maybe they represented that they did it certainly it's hard to imagine a clearer statement that we submit ourselves to the jurisdiction of the federal and state courts than to waive immunity which says you're immune from  the it's an interesting question as to whether someone with this elaborate a title whose responsibility is patent license because after those supreme court cases i can't imagine anyone dealing with the university unless they get a the companion case to college savings the issue had arisen before you know there were cases of of this court before wrestling with the questions going both ways being corrected in one case  by the supreme court so i think it's it's interesting and important if in fact this person with the title of associate director being in charge of technology transfer essentially licensing and partnerships and all the rest of it had no authority to enter into any of the agreements that were entered into on behalf of the university that completely agree with you that the trustees certainly an explicitly have the right to contract concerning inventions and patents and all of that right and that's one of the trustee sections to you cited to and one of the problems i also have  argument is if there's nothing that designates to miss griffin or her office the right to contract to waive sovereign immunity then it seems like there would be nothing that actually designated them the right to contract at all it seems t get it all or they get none and if they're admitting that they have the right to contract in general in the absence of something expressed from the trustees to the parties that then i have trouble coming to the conclusion they don't also have the right to wait