on employee mobility here the trial court found in whitewater does not dispute that mr all house conceived of the inventions no earlier than two weeks after the termination of his employment also whitewater does not allege the invention was actually and this is addressed actually in my reply brief the invention was developed and conceived during the consulting agreement it was not an employment agreement it was a consulting agreement and it was conceived during that so there was never this issue of preconception or preacherman ations post germination that's the st distinction  distinction is that that was a consultant agreement it was an employment agreement as applied for example in armor like applied materials conversion logic and holloway all of which were employment agreements  and so that's the nd distinction so if you look at this in the context of an employment agreement every single case that has looked at this and divided the world between pre term a nation post germination if it's pre term a nation then there could be an assignment if it's post germination and there's no trade secret then there is no assignment that is the fundamental difference with the stanford case or supreme court level addressing this particular kind of restraint on a former employee this is we have a federal court decisions at district federal district court decisions about the likely meaning of california law or is it just those are the materials that are available for the particular situation and the much and the more general pronouncements of the california supreme court in edwards and exchange and others about the strength of the sixteen thousand six hundred prohibition on restraints on former by the the district court cases however each of those district court cases are completely consistent with the appellate and supreme court cases on sixteen thousand six hundred dollars which this court should take note because it profession but this case goes to patent right there's no question this employee is free to continue working in the field nothing in the agreement he signed the employment agreement  six hundred is a basically quote unquote take no holds bar approach to post terminations are straight any restraint even as low as paying twenty dollars back is found to to job now if we are if we are left with a situation where whitewater under its current assignment provision can and denture effectively mr all house for if this restraint maintains employers will not hire him because they will have to assign any work that they do in a particular field back to his previous employment that restrains his and either started competing company or do or work with a competing company then that's a restraint on their trade that's a restraint on their ability to be able to work in the field they chose and the courts are very clear here any restraint no matter how minimal trigger sixteen thousand six hundred and there needs to be an exception and those exceptions are listed specifically in the statute none of those exceptions not address and was therefore restrict agreements about former employees inventions there might be an implication that a for she or a former employees  address former employees invention and seventy simply doesn't apply to circumstances where the employment relationship has terminated so it never applies in a backward looking fashion then how in the world do we construe a one which focuses on whether or not the invention was conceived or reduced to practice at the time you were employed right how do we how do we understand that in the context of this section doesn't imply at all to anyone once the employment rights are terminated you're making about timing you're making a timing argument you're saying twenty seven b as a whole doesn't apply any longer and it can't employees can't be restricted because once you're no longer an employee you can't be restricted is that well then why would it have this portion within it that talks about whether or not you invented during the course of your employment you can see them reduced to practice why would that timing provision need to be in there at business there's no statement in there that has to be within the confines of employment like i believe you're stating what i'm what i this section basically has to one of which is if you conceive of this during your employment and it is part of the business of the employee of the employer then you must define or and that you continue after the employment  alleged killing better ship issue let me ask you a question about sixteen thousand six hundred construed by the california supreme court in the recent textile decision  that case seems to suggest that there's a rule of reason under sixteen thousand six hundred and i guess my question is how can it be that the provision of this agreement which requires the future assignment of any newly created inventions in the future the indefinite future just because they relate to the former employer's business can possibly be a val well your honor i think that the language of the contract especially when it's tied with the language of labor code two thousand eight hundred and seventy dictate that the legislature has said that relating to the employer's business is   appropriate subject matter restriction but that is not the question to the contract the assigned provision says that it applies to inventions here and after mater conceived by the employee quote in any way connected to any subject matter within the existing or contemplated business of the company so that provision would seem to require the assignment of an invention conceived after employment ten years after employment i don't think these are incorrect in reading it on its face that way however i think that there's a a natural connection here that has to be proven by fact that it actually relates to the employer's business and that over a period of time that relationship simply goes away d i think that that's even more true with respect to the other provision of the contract that says that an invention that results from the employee's work at the employer must be assigned back which is similar to the language that's in two thousand eight hundred and seventy eight to count five like a follow up on just a question because i'm going to be honest your answer made absolutely no sense to me what do you mean an over time the relationship goes away relating to the employer's business is what they've employed was doing what the business was at the time that the employee worked there obviously if the employer's business changes or the employee does something afterwards that's different than it's not going to tie  and ten years down the road while working at a completely different but competitive company this event or comes up with an idea that relates to that same business that the other employer is still in that your honor has been obviously the most difficult portion of our of our position and i understand that that interpretation that could be taken i don't think that that is correct i think that there must be some time to the what the employer was doing scuse me what the employee was doing at the time he was employed there and that going in working for another competitor and conceiving of something that is related to the competitors business even if in the same line is not really going to tie back to what the employee was doing there i understand let's assume for the moment that the broad construction the judge moore and i have suggested to you is correct and that this does apply for the indefinite future to any newly invent results from which is the which is the portion of the contract the district court actually applies ok so we're left under the broad construction of this agreement we're left with the question as to whether you can as you  does not have any time constraints the use of the words employer and employee are basically identifiers of the people who enter the contract at the time i don't think that there's any restriction to say that just because somebody becomes a former employee  later that the legislature needed to write down every single potential thing that might happen future employer former employer etc there just contract identifiers and nowhere does it say this cuts off at the t conception or reduction to practice to the employers that this why wouldn't he just say an invention that relates to the employer's business why would they put that i mean portion into a w i see that i have time managed to respond your question your time then i think that timing provision is actually very important and i think it also sets up the distinction between twenty and seventy a one in eighty two i think the restriction on timing in a one is trying to tie it to what the employee was doing at the time he worked there and twenty seven a who does not make any timing restrictions at all it just says results from which is really the situation we have here where an employee was doing something while he was employed decided you wanted to compete last and then immediately finalize the invention afterwards so you can look to what the invention resulted from  without restriction on timing whereas a wine is specifically restricted in time based upon evidence presented regarding the wave block technology and the law can help patents that were cited by the patent office to further support its legal conclusion that mystery a did not contribute to the conception of the passage issue because all  ordinary still in the arts and because of his employment working with mr locke the felt at wave law at the time of conception and where the findings are based on determinations regarding credibility of witnesses as was the case here in tone of voice that bear so heavily on the listener's understanding of him but we can what is said and the court went on further state that when a trial judge finding is based on his decision to credit testimony of one of two or more witnesses each which basically states that when the two thousand eight hundred and seventy contract is written solely by the employer it must be construed strictly against that employer which is the case here i don't think del for example the court said any attempt to construe the non competing non slip ation clauses in such a manner to make them waffle would not be reforming the contract to correct a mistake of the parties but rather to sa prescribed and void provision one of the thing that should be mentioned here is that when this contract was drafted between all house and whitewater whitewater did not as the employer performed by the employee or the employer for the employer but the actual language of the assignment provision here is much broader it states resulted from or suggested by employees work that's broader than tw seventy and section c in any way connected to any subject matter within the existing or contemplated business of the company it's hard to imagine that anything would be outside of the scope of that and so when athletes counsel states that if this assignment provision were to be interpreted to last forever which indeed it does say conceive conceived of or here and after may conceive then employers would hire every available engineer in their industry and have them sign an assignment provision and then immediately fire those employees any invention for those engineers would require assignments provide provision if you were worried about time and you could leave which is what the district court actually applied why couldn't we leave the well because the language are and i think we did argue that in our brief but to answer your question directly your honor if for example i was working at a tire manufacturing typing up a report and an idea came to my mind regarding a new keyboard that might help me type this up faster is that suggested by my work for the employee from the for the employer i would argue that it is i would also argue that it's not related to that related to resulting from work certainly that you like does result directly from the work we're doing if that is the bounds your honor of two thousand and seventy that anything you do during the time frame any concept any concept you have from the time frame that i believe twenty to seventy and then the the assignment provision here has absolutely no bounds none and there would be it would be impossible for me or mr all's house to ever ever work as an inventor in any other capacity in the water waterworks field or really any other field if if resulting means that rot and more importantly if that resulting from has no tail and if it exists forever if mr alls house would have called me this morning and said i have another idea for a wave ride shell recent promulgating from the from the state supreme court states that any restriction is invalid unless it's specifically cited and the one thing is that twenty seven is not cited and yet the applied materials the conversion logic case the holloway case the armor light lens case were all known to the drudge slate sure they mended several times since