yes the seventh circuit appeal is stayed there has been no briefing both parties agreed upon that and the seventh circuit is getting periodic reports of the status of this case w were there is the brief the briefing in that court is state on who i don't know if there is a copy i believe it was in one of the or more of the status reports but i'm not certain about that honor i think it's quite clear that this court has exclusive jurisdiction of this appeal and the reason is that there is a claim under the baidoa act in wharfs complaint there are six in relief believe that it's clearly part of the patent act it deals with who gets the assignment of patent rights when there is federal funding for research primarily educational and other nonprofit institutions my client filed which they present separately on and they're alleging that under baidoa act or for is entitle to an assignment of those patent applications that are pending and as yes under the by dole act a federal institution is required to or excuse me an educational institution receiving federal funds is entitle to an assignment of an invention and so this goes to the question of ownership first off and it's entitle to that only if there's been conception and reduction to practice even federal funds and those are certainly patent act questions so in order to determine whether or not the bible act applies one must do an analysis they have they have a specific claim under the body toll act and that issue was briefed and argued before the district court in one run when one reads the district court's summary judgment opinion when she disposes of the by dole act claims she goes to the fact that the regulations require this analysis of conception around option to practice and she fell she found that were failed to meet their burden of proof on on a federal claim only when there is not a claim actually asserted if there are claims asserted under the patent act then there's no question of the fact that there's for example the whole question of the contract as to whether or not there are improvements and that was another thing that they raised depends upon an infringement analysis whether or not products are sold here products which are defined in the only going to address three of them in the first one i want to address is whether xenon had a right under the exclusive license or agreement to license its rights separately from without licensing warsh rights you know worst brief is full of unsupported rhetoric about how wrongful xenon scott was in housing and couldn't grant a license to its joint ownership in  the without granting a sump license to wharfs rights worse entire argument is based upon a premise that xenon could not separately license its interest without licensing or granting a sub license exclusive license agreement was negotiated worth knew all about the statutory right at no time in the negotiations did worf ever raise this issue they certainly never asked xenon to waive  and that's address is the second question i was going to get to and the first question is whether or not we have a statute right the district court judge to did not address that issue a low she said she didn't have to because she found  was reversed she reversed that we brought a motion for reconsideration based on the fact that worf raise that issue for the first time in its reply papers the district judge agreed with us she reversed the we licensed to novartis only in limited fields of use human health care and animal rights and that means that xena my client retained in the joint patent applications all rights outside the scope only for the first time post trial because we because wharf raise this issue for the first time only in their reply brief we never had a chance to even point that out if that's never addressed in her summ judgement opinion and she did not find from in her post trial decision that in fact these were minor you know this in terms of the first question the waiver question i think sharing is dispositive here this court's decision on the supple i sense i think the fact that once that assignment finding goes there's the jury could find out was part of it only if this somehow the value of the stock was inflated and she found that there was absolutely no credible evidence that in fact the stock value was inflated and so that for the most part it's not entirely off the table so the question was then out of the four million dollars how much was worth from the time that she gave an instruction to the jury that worked and had to determine was entitled to that portion of the payments that was attributable to the subway license and there's absolutely no evidence in the record on what that value is and she said herself in her post drought penya i can't sort it out and that's because they failed to produce any evidence on this subject she says i can't determine what the correct amount is and therefore she chose an arbitrary number when you look at that number it's seven and a half percent of four million which is the payments we got under the nova west's constant law does not relieve the plaintiff of proving damages or writing a prime aphasia case period and not only does it not relieve the burden it's a political only to the extent the wrongdoing or the breach would have caused us and there was no allegation by anybody in this case that we ever breached the agreement by assigning to novartis our no sixteen separate patent families and all the other things we assign sales that's the only thing it's in there's a specific form that we're required to report on the only thing that we're required to report on a product sales nothing else no license fees  attachment each of the license agreement let's hear from the other side you know you like to start this is a kind oh i'm sorry it was raised in the briefs i stand corrected your honor as the supreme court held in the christianson case a claim supported by alternative theories in the complete may not form the basis of thirteen thirty eight jurisdiction and less caton law is essential to each and every one of these theories here we do have a contract case none of wharfs claims ownership it's for a declaratory judgment and it's a conversion claim which our state law claims the by joel act is one theory that could get war that could afford war for a leaf or also raise contract theories that would  for the same relief and example is the sponsor option agreement which does not require any interpretation of any patent law there was a research agreement in place if if the university professors discovered a discovery under that universe under that research agreement that was by the terms of the contract assignable to war as we see in the christianson case for example the district courts determination it's it's final judgment was based on in invalidating some patents so the theories at issue as long as there are alternative theories such as the breach of the sponsor option agreement that is what the court has to look to if there are turn it if the areas that get support the same relief as pled in the complaint then there is no exclusive jurisdiction in fact no the i don't believe that the claims had to be interpreted no your honor well if it was and that was the only theory for relief for ownership of these patent rights then that would be a different situation whereas here where there are there is a contract theory where no pat needs to be interpreted and warf has a right under the sponsor option agreement and attached  that's correct and this court is held on many occasions that the decision of patent ownership is one of state law as opposed to one patent law now if the this court does address the merits addressing first xenon appeal it is true that work has contended and does contend that the equal that the exclusive license agreement relates to wharfs interest and here the district court found that wharfs interest was indeed self license to novartis and that's the only reasonable interpretation of the novartis agreement nowhere in the agreement does it state that xenon was only conveying its undivided interest and setting aside the interest it had in wharfs interest in the by virtue of the exclusive license agreement  four six three one that's the novartis agreement specifically contemplates that some of the rights being conveyed were gained by virtue of a license  well it certainly would be an independent breach of the exclusive license agreement which provides that xenon did not have the right to assign as undivided interest without consent it's undisputed wife did not consent however to t and they only had the right to convey an exclusive license and the joint patent application by virtue of having wharfs rights by definition a license to a patent application can't be exclusive unless the licensee h as the right to exclude others if xenon theory is to be taken true what they conveyed to novartis was an exclusive rights in its interest in the joint patent application but they separately retained wharfs interest to solve license to every other pharmaceutical country company in the world and if you think about it the novartis agreement called for one hundred fifty seven and a half million dollars in pre commercial payments alone certainly novartis would not agree to a non exclusive license if it's for that much money when every other pharmaceutical company around the world could gain a license by virtue of wharfs right terminate you go now into that it's not terminated yet and use more stuff to get it terminated even if there was a breach right well i and i am excuse me i have to go outside the record to explain how work has given notice of terminations so the under any theory that puts forward in its appeal and this court also reversed the finding on the assignment then morph would still have rights to pursue if wharf prevails on all of its issues this litigation is of the standard of of of damages damages fail because they misapply the standard of review they misapply wisconsin line cases in which there's uncertainty of proof and they overlook the burden shifting license what the cross decision sets out is not when damage the arrays are acceptable as their quote and their brief implies but rather whether statistical studies can be used to support damage theories if you have an expert who has a statistical study that expert has to go through and review all the salient factors that simply not clickable here and as the district court found it did breach section fo re by failing to provide an accounting of the accounting provision does not provide that they only need to provide an accounting for products sold on its face that provision says for all monies owed to war so we respectfully disagree with that finally and worth did present evidence to meet as prima facia case of damages all work needed to do was show what the how the contract damages they sought relates to the only piece of intellectual property mentioned is the joint patent application and that makes sense because the joint patent application certainly dominates over every claim in any of these other  raise this argument to the jury more importantly they're wrong if you look at exhibit b and the patent applications they're seen on lists four categories of patents the first is the joint patent application that obviously predates one fourteen the second includes patent applications that were filed prior to exhibit one fourteen or claim priority before exhibit one fourteen the third is a category that claimed it had at least one that claim priority and many shortly thereafter applying all reasonable inferences in warst favor as it is incumbent it was incumbent upon the district court is incumbent upon this court applying asserted under the patent act and if there is no claim asserted then you go to the question there's a second question of does the rights or the outcome of any claim asserted depend upon a question of federal law those are two separate questions once you assert a claim under the federal statutes and they said in their complaint they did it and they claim there was jurisdiction thirteen thirty one  the other question and they presented absolutely no evidence on the scope of the claims what the claims meant no were frenchmen analysis she said she stood up here and said today the claims in the joint patent application dominate are sixteen patent applications search the record this court knows full well what kind of infringement analysis would be required far better than i do and you will not find any not even the most initial analysis of this yes the very briefly and the answer is that the jurisdiction here doesn't necessarily turn up on solely on the infringement alice's that but all many of their contract claims and virtually all of them on the improvements on whether or not they had a right to practice the improvements and whether or not