an exclusive license and they've got the right to sue if they've got the right to sue these products to sign these products eckstein the rights to these products how could they not be injured by someone the affiliate for vision why do you not say even if the affiliate provision is narrow is in the can in fact grantley own a license to make these things under the operational  corporately related entities then there's operational control and the third one is any entity operated under license from disney if if the dispute or at least part of the dispute was about the scope of the affiliate provision how i guess i'm having trouble understanding how when you look at license agreement as a whole that the narrow view as opposed to the broad view isn't really the one that makes sense and that at licensing business i mean yes it does make movies it has cruise ships and it has disneyland but a huge portion of disney's business is licensing and they wanted unfettered ability to license whoever they want under whatever terms they want even when they expanded incapable of obtaining a license right from the other party however so that's the language the broad legal aid which they used but in affleck cation they make it clear that several of the parties that were at issue in that case retain not only the right to practice but the right to license affiliates almost identical languages here and that that didn't qualify under the incapable of attaining the i think the difference is that in some cases you're using the narrow definition of affiliates which is corporate relatives in this case does we insisted on two additional terms for itself not right for kind of our debate which is to be clear then are you acquiescing in the fact that if the very narrow definition of affiliates only circumstances it's enough that even though they have that incapable of becoming language as though if in the future you could become an affiliate of disney in the corporate ownership capacity that's still not enough under why i asked because they apply i did in that very rights under the lights merely because it places such as not only the rights in existence at the time but also to future licenses that may be granted only to parties other than the accused and then it went on to say that because the corporate relatives at a minimum the last clause allows does need to license somebody that operates its business under disney's control why can't it can be early on and moreover it doesn't even have to be controlled but i agree with you it does not have to be controlled by disney but even if it is controlled by give me whether or not you give me has more than fifty percent corporate ownership that's one  practical matter about whether disney can be compelled to join or would be expected to join voluntarily i'd be interested in that it's ok well let me give you my argument on preventable s case disney is not just a bystander here let's walk through what they have not only do they have the right to practice under section two point two not only do they have the right to license at least some others under section two point two they unilaterally control whether to maintain the patents and force it that control is left up to disney that section twelve which was relevant under program are there cases that actually hold i know that there are code cases that say one has to look at a lot of different rights but actually hold that you have to if you're an exclusive licensee in the sense that crosses the first threshold that they do have a right to exclude you nevertheless the patent owner which has some rights has to be is the most important thing is the right to sue but in morrow what it said is and moreover another important thing is to make sure the owner of the patent has a right to defend against potential invalidation or un and force ability of the patent in in the event you know that the exclusive licensee is private here disney has a first because you don't want the patent either to to be you know out of the whole ballgame if it's his patent it's going to be destroyed but disney here and any other entity and by the way this thing has a very broad interest and licensing this to this type of company for example if you look at page eighty in the record it's talking about kendall are talking about licensing the character lumiere from beauty in the beast you know these these candles can come in the form of disney characters you could use all sorts of different lights and theme songs with the candles we have a possibility of cross license owns the rights of all improvements under section one point two collectively i realize individual way just the right to some proceeds might not be enough but collectively this is showing that disney has a real interest in this pattern and it needs to be here there's the apparently doesn't want to be here i think that's why does it need to be here because i think that's the crux of what judge toronto was asking you earlier which is you know we have cases that eliminate discuss you know eight or nine factors but why why happen to its patents with a gauge it is it did agree to be bound by the result of the litigation but that doesn't mean it has no interest in ownership remember how this is structured this wasn't an assignment and grant that it wasn't that way in two thousand maybe it wasn't really in two thousand and twelve it's not that way and see that working fifteen this was this new retaining the rights and giving certain rights to women are even after all the a member it remains in their posture and that means disney has an interest here you said you said before that disney apparently doesn't want to do you think the result is that they're found that there was standing but that disney also should be joined at the result would be the case we have to  description to support more sure than the written description describes a whole variety of different embodiments that can be used not simply the one in figure one where you have of the shape of a larger hole that's covered by some dependent but it also makes clear that you can have a fixed rod a rigid support you don't have to have a bigger hole if you don't it's just going to rotate around the supports and moreover it's especially discusses gimbals multi axis gimbals a in two dimensions around the pivot in and before fifty five so the real question is do you have to have chaotic motion in three dimensions i don't think you have to have chaotic motion at all but to the extent you do you certainly don't need to have in all three seven you typically mount the pendulum member the p t o rejected das claims because the four fifty five titan disclose pivotal mounting and disney exceeded to that objection rejection and didn't traverse it what it did  so there's no reason in either the claim language this is a plain english word which has accepted meaning there's no redefinition of the term to pivot in this part and there's another portion of the specification that talks about freedom pivot that basically means it's not impeded from pivoting the real question is what does pivot mean and there's nothing in the specification that makes that requires three dimensional movement and there's nothing in the prosecution history that does at a minimum again even if we don't have a definitive determination from this court has at least substantial doubt and that existing contracts with two distributors that couldn't obviously justify the current injunction against fifteen customers and that this record just didn't reach that didn't reach and there were fact issues about first of all did these distributors breach the contract their argument is that women are breached and so they covered by buying from from we don't place a trademark claim that asserted basis for the you know they tried to work that in a little bit to the  leon has not been able to sell to the two main distributors those two men distributors haven't been able to get any products we've basically missed the christmas season at this point the three major trade shows for this industry are in january if we can't be of the same those trade shows we're not going to be able the pat disney would have to bring another party into their fold affiliates and it wouldn't you just use the term that is being defined so that seems to be cheating it doesn't have to be a corporate relative it at that it has to be somebody that is operating under operational control of this so why couldn't disney do that to leo if disney so i guess some a little bit confused that the dish and all definitions under affiliate are ways to bring another party into the fall  over the business that it is licensing what i'm asking is let's assume it does it seems to me it is no narrower than that and if it is known now or them that why does not that not allow disney should it wish to license leone and do it on the condition that disney gets to control the candle business of leo at the outset i would when a party becomes an affiliate they also enjoy the rights that disney reserved to itself which is the right to make this practice and enjoy the fruits of the invention  somebody could just operating under a license on that path that's right i think the purpose of that last definition of affiliates that we're talking about is that you cannot or disney cannot make someone an affiliate for the sole purpose of practicing they have to pass so they have one one other thing in their business so that so it i don't think that's a reasonable interpretation of that last part of the definition of affiliates you california law says you have to turn to the business realities of the case and what the parties intended and it's not reasonable to think that argument in terms of overall what was attempting to be conveyed here but under no state law can be read out terms express please what is your best definition for how i construe or under license from because i can't construe it to solely be operated by because that's the predicate that came before it sets out to different conditions after a day or under license from so they can't morph into just one there's no state that allows me to do that when i'm considering the tracks so your a c matic notions are well taken but what do i do with that language well i think a a reasonable alternate construction of that language is that it's not just operated by the walt disney company but it's operated under a license from the what this new company that was rewrite it entirely and remove the or right you just made it one condition instead of  how it's clearly set out as to and you actually added a condition to the operated by not only have to be operated by it has to come in the form of a license can't be a ring in the cracker jack box i think as a as a matter of standard written english that is one way to read that clause and operated by or operated under by since from what this new can order for that to help you you need a some sort of narrowish concept of what it means to operate under the license so let's let's of three for a minute that you could combine the under license phrase with the word operated nevertheless why does that how does that narrow in a way that would exclude leo the intent of that was you know none of this says that it's disney they don't have to operate as disney nothing in here says you have to assume the disney name and i don't see how you can morph that into anything here and in fact i went online just out of curiosity and i was trying to figure out euro disney paris disney how are these things connected you know and what i discovered is that there are a lots of things that are under disney's control that in fact don't have the disney name at all at least appear to be my extra record search on the web which of course is completely accurate so i just the point being there's nothing here that says they have to change their name to disney in order to be operated by right that's correct it is the i mean you know gosh these big companies like this they have a million little companies companies that they operate and the care there and they don't share their name though that's tricky but i understand that your response to all this is that there is a separate carve out that says regardless of whatever affiliates to find that initially that to separately say affiliates do not include people like it's only a claim technology so clearly leon couldn't be licensed as an affiliate to do this just what if that's right but what right so you say that only can't be talking about something gratuitous it's got to be something more substantial where in the set of agreements where the agreements do do can we go to see what that more substantial thing must be i don't think there's evidence in the record in that regard and i technology they licensed somebody their entire ip portfolio they're not operated by another control guy they don't like fifty cent fifty percent share of they maintain their separate name with that the enough under this that way then you have removed the cause of action against that defendant but right now in this case none of these defendants are affiliates and there is an injury in fact  constitutionally recognized injury and fact that disney currently has against these defendants they get it constitutional gives it constitutional sta every other factor pointed the other way but i know we have cases that say that's the most important factor but they still articulate the list you know these are factors or whatever certainly and so what i mean that is there one that so dominant if that were the case that it would just wipe everything else out well there are other important rights of course one is the right to suck license disney has the ability to suck license this in its rights and again that isn't an unfet litigation or any challenge to the patents and for the patent office etc so this new granted to women are all substantial rights such that there really are no concerns prudential concerns so that lehman are  d in its own name in this case  i'd like to also turn to them that you would argue that even if you were wrong and that if we thought does need to be joined that we should not allow us reach the other issues right absolutely is that your view we should reach the other issue because always the doing be sending it back to the district court for a mandatory joint or that that's right and the prudential standing requirement is of course curable i did do you think that you do have a right to compel disney to join or do you happen to know whether that's not a compulsion it's not going to be necessary well i read it because this they would exclusion and acknowledge that jointer is mandatory one but part of consent is having been a patent owner gives exclusive licenses that's independent were understood ok go ahead let it you know what do you mind since you know we don't know that even if we go against you on preamble preambles not normally and generally it's not a claim limitation it's exceptional case and i didn't see that flow from this case it didn't flow from the dish of course decision because i don't think any party put that particular issue in front of  district court i think it's an open question whether the preamble is limiting but i don't think ultimately it has to be to still distinguish claim one from four five five as a well known simple mechanism support that supports a light channel that has effectively two degrees of rotational freedom that the aha moment here for the inventor was recognizing that i the hole is free to pivot where supported by the flame support so maybe some narrow claim does that or maybe it doesn't but we have only claimed so i think that's supported by my claim one when you question is whether it's required it's required by plain water force the if it comes of course in the last element of the pendulum after you have a whole the whole is configured to receive the flame support element such that the body is free to pivot when supported by the flame support that so you need but but but then what you need i guess everybody this is the way the case has been presented is a particular meaning of the term pivot that means something more than this maybe even something more than this and this but something else what i can see something more of something more than i can slave rotation about an alternative pivotal melting provided by the combination of the pivot hole and support column now we own is trying to characterize that as an alternative and claimed e describes as a pivotal in mounted support it says that other mechanisms such as a gimbal or other joints allowing multi axis movement as opposed to free pivoting movement may be figured to receive the flame support element such that you are free to pivot when supported by the flame support element about the hole but earlier in that same column so if you go up to lines twenty four down to down to about thirty six it talks about the nature of the support element defining the the level of chaotic ness that the word the third the extent to which the movement is chaotic as a better phrasing and it actually says that in other embodiments though it's preferable that the support element is rigid or semi rigid and does not move with the pan handle number which would imply that in those circumstances even though it would still have have it the movement wouldn't be ok on the the i think that there are multiple ways to achieve a pivot in there and it can be achieved with a rigid support member as well the the or what the once expect focuses on is how do you can figure this all in the pendulum to get a better for kerry flame effect better than what you could get  addition there are other things you can do with the with the pendulum member or side with the flame support member to increase stack so when you look at the totality of the one six six pad specification as we have to do when you look at what is being claimed axis and you can certainly have it around two so why does it have to be more than two why didn't the district court air when they went so far as to say has to be more than two well i don't think it has to be more than two more than that rote rotational what is missing from shackle is the ability to twist just to say out how can you pivot in more than three dimensions and slightly go this way and in the gimble mechanism you can go this way but there you do not have the ability to twist that and that is that that's not the claim definition of free to pivot so i mean that you're now you want me to read into the definition all of what you say is necessary to distinguish from that prior are there for the alternate theory that was put before the district  configured such that you can get that third dimension but but but but again when you look at how one of ordinary skill in the or read this claim and you have the one six six thousand specification and if you or you know the four five five pad which doesn't talk about pivots or pendulums the pivot is simply the point of rotation in a lever system a pendulum is a weight supported by a pivot and that's the way the panty here chose to to to claim this innovation and he distinguished it explicitly distinguish it from the gimbal mechanism in the specification of the bonnet concept you have any know well i do agree that column seven discusses the gamble mechanism as an alternative embodiment of invention and it says that's an alternative to the pivot hole one twelfth and the support on that one thirteen namely if you look at  we have to have at the end of the day and this plane is some sort of a hole with the support member so that it's free to pivot in some way it doesn't discuss all that is articulating that it is and i suppose you could also have when the or blowing mechanism or something like that for purposes of this patent because it doesn't require all the rest of that stuff but the pattern as a whole is talking about a variety of ways to articulate the thing and really the to the extent there's any