manifestly disregards indiana law and violates federal law and postage of that interest how much it's still not very much is due to the post judge jackson judgment interest thirty thirty three million so far has comes from the terms of reference this is the argument this is the agreement negotiated and signed by the parties that defines the scope of the arbitration the court may vacate in award under article five one cd of the new york convention when it is based on a matter not fall within the terms of submission to the arbitrators and this is an issue that falls squarely within the province of the court to decide as the restatement of u s law and international commercial arbitration makes clear th court has the authority to determine to know both whether he convention award deals with matters that were not submitted to arbitration and if you look at appendix fourteen eve three to fourteen eighty seven you can see how specific to the terms of reference actually are and nowhere will you see any mention of the reissue pact there easily could have included the reissue in the terms of reference if you wanted it included in this part the trade ship by the time the terms of reference were finalized in october of two thousand and thirteen bear had already filed its reissue application and was telling the patent office that in six six five patent was invalid based on merit yet they only included and they're also never told the patent office that it owned the expired struck patents or that it was taking the position in the arbitration that the sort of levens patents also packed only by omitting these critical facts could they get their perspective here is the six six five is basically the case for two years and then there's a complete reversal and within a matter of weeks we now have to present completely new package so either they should've formally moved to amend the terms of reference and then we could have talked about a new schedule explaining specifically that new for example one row three evidence and arguments were going to be needed and the condition of any it maybe of expansion of the proceeding would be that there's obviously an efficiency interest if there is no prejudice of wrapping it into the same proceeding and if you didn't explain the prejudice than how could we fall under whatever standard or review the tribunal for saying there's no reason not to do this project or two things one is article five said delay which is not really and it's an interest except in you know from one side of the proceedings we raised when we objected that there was violations of due process and the timing was a violation of due process requires something concretely prejudicial right right so where did you explain to the tribunal here is what we haven't had a chance to do and if you include the real issue we now need a chance to do right with the way exposition of all the different things we objected to we said why we objected and then it gets we don't find out until the very end that the tribunals actually made the decision that will be included in your work can you point me to where you brought to their attention policy concerns right yet we don't want to give out more patents on the exact same thing and so if a tribe and mint arbitration tribunals misapplies section one and two and finds the patent is actually valid and then there's the same situation as we have here an improper extension of the life of a pattern that never should have been granted in the first place right because here for double patterning it is different i mean in  to any patent you thought was invalid and then we'd have to review any of them because any patent that you are going to say was wrongly decided to be valid is going to be up in this document just block you but potentially this decision could affect lots of other companies are going to gifts and the lehman's and the structure originated in different companies trade hest and p g s or something and if they had remained in separate hands then the public in general would have been subject to and they are crap science and the which was p d s are good at that maybe i got it backwards but they were originally separate companies separate assignees there could well have been a period what is it up to twenty thirty twenty eight twenty twenty three twenty twenty three that that the public was generally subject to an exclusivity right why is it self evident that double patenting as a matter of public policy suddenly makes that impossible when the two monopoly the rights are consolidated in one hands which does in as an economic matter potentially have the benefit of reducing the double more marginalization because here the  situation the best you had was a statement in one of the seven zero six provisions of the m p t which is not law and was not even addressing double patenting but it was addressing how the apply one of three of the right to exclude no matter how it's it's it comes about the first time i have six tension it's not exactly self defining so we would be facing something that according to the small size of the authorities you've  what we wouldn't be ruling on whether there is such a proper version of double patenting we would be saying it's certainly not whatever the answer to the question is it's not established and clear enough for it to patent doctrine rise to the level of a public policy exception that would fall within the scope of the convention normally as applied to these particular circumstances which is not within the met in the is not covered by an existing precedent but it's basically based on the facts probably going to have questions for you but in when you do sit down not only are you hoping that your associate will provide you with a cite to where you explain to the arbitrators below that this is the new claim issue would present new validity issues but also where you argued that to us because we don't find that in your because we don't fight any argument you're briefed to us that we were prejudice because this is a new claim and we didn't have an opportunity therefore to bring our they got it right or wrong whether this is a new claim be subject to that same dickless lehi and deferential standard for view that applies to arbitration agreements which basically means unless the sky is falling i don't mess with it of course it would of course  of article twenty three four etc or is that i think maybe the other side suggested that that was the no but what's so is this court system determined whether or not the new york convention operated for example the contract here is a commercial contract concerning rights under a you know particular business you know that involved you know transfer of genetics and patent licensing and said tribe you the so that it was going to shift the real estate the standard of review a suggested did novo or whether something was properly a part of the arbitration or not and therefore decidable by the arbiters and so what is the standard because that's what they're asking us that's what they're arguing and so what i need to know from you is what is my standard of proof viewing the decision by the arbitrators this is not a new claim and can be brought into this arbitration ok she steps first of all judge moore really was completely unconnected to everything that was debated and during the proceedings you would tell us that that was just the panel's interpretation of the scope of the proceeding and it's on  review for that and reviewing that question the standard of review as you sit here reviewing the district court's decision to confirm is that they just records ability to look and see if the and this court doesn't have any duty to grant the district court's decision on this any particular death so ok can i ask and i think i once knew something i'm not about the new york convention but about the f arbitration and i think there are some supreme court cases that talk about when the question is whether the arbitrator decided an issue properly within the scope of what the agreement provided would will the courts review that and i want you to finish the sentence saying under what standard of review is the scope determination part of what the arbitrator gets lots of discretion court proceedings when it was arguing that all of these missions were supposed to go to arbitration and the view there that dow took is that not only anything in connection with this agreement including the patent rights the breach arguments determination arguments everything else go to i tried to give you x ray because i thought here's the quote from oxford i thought really healthy because the parties bargained for the arbitrator's construction of their agreement an arbitrary decision even arguably considering applying the contract must stand regardless of the court's feel exactly right and that's if not the exact how much interest on such monetary award is proper on what basis and then later and this is the part that really brings forward the irony of this argument from that later when the arbitration arguments for coming forward after the terms of reference have been settle the parties agree that full compensation which is what was required under french law was and angry of all way to deal with compensation whether it was going to go it out or going to fire and that he supported that full compensation you can achieve it by awarding interest simple interest at a rate between six and ten percent this is at appendix five six i mean this is this is expressed leigh given to the treadmill that probably don't apply the interest rate different but really more importantly here you've got an election by the part that french law and therefore the full compensation requirement for remedies under french law applies and that does in fact take into account interest obviously the fifth circuit said well it didn't say enough to displace the strong default rule or that one of the your board is confirmed in district court that then the federal rate kicks in post judgment and so on the pre award the post award rate was good for the time from the award to the confirmation by the district court but then after the district court confirmed the award and then you go back to the federal reserve because the ward wasn't crystal clear about specifically overriding the strong default expectation that the federal rate would apply post recession i'm getting a red light but if it's  override sixty one you can do that directly or you can do it by submitting to a tribe you know the issue of enters that's exactly what happened here what was there in the paragraph ten zero six and the and was there a recognition and therefore discussion of the fact that some postal board interest will be prejudgment themselves would be post judgment and  depends on which country or where are we in germany when we're talking that iran or so buyer crap science ag the contract right belongs to it and the patent right belongs to and the is that right the contract right as some somebody else off the record and although your patent infringement complaint in the eastern district of virginia names both parties it's not clear to me what she is doing there you don't say anything in the complaint about what a g is doing there even though i think you say in footnote fourteen or something of your brief that hearst had exclusive licensing rights to the  patents so i end up trying to understand in this context whether three hundred and something million dollar contract award belongs to one of the buyers a why not sure access and thing and in this regard there wasn't a reason for change there was no challenge to the way that the well the context in which i started thinking about it is an issue that was not raised this morning but is an important part of the blue can address that now your honor i think i can do it very quickly creating two products that you three product and the three i our product was the contract bridge creating those two products with a country bridge that  but i'm not sure that's the most important thing of all but the conduct that constituted the breach here is conduct that would be an infringement during the life of this patent so why is in forcing a contract to pay for conduct that is an infringement of the reissue patent until the end of the law until twenty twenty three and forcing a contract to pay for that for the next seventy years after not black problem it's a it's kind of much worse than that infringement first of all it's not a grew up problem because i was very narrow and says that if you have a patent license you can charge for the invention pass the life of the pat here there was no charge for the patent lies it's not they got to infringe for free for those two products so for those two products that we're looking at each three and a three plus i r that was the source of breach that was the reason for part and perhaps if only u s law had been elected by the parties and only patent law was what was being discussed you could assign a remedy under that no dispute about that just right or you're absolutely right happened here is that by and if the path gene and the genetics and that was used by that to replicate all the genetics of the pattern into the super product that it has right now and they've done that very very successfully they've got a multiple tens of billions of dollars of product there that is available to them they haven't stopped using it and now they suggest that on technicalities we're entitled to not even the award for breach that the tribal member came mr gasper i think now is th question of the scope of issues that are covered by an arbitration agreement is itself an issue only for the arbitrator then subject to something more deferential than you know a rebate why is this not like that it remember that authority issuing an award that simply read like that but that's that just gets to the result of a conclusion that that somebody got it wrong the question is how finely do we scrutinize whether the arbitrator got wrong the decision of scope and i it feels a little strange to me to think that if the initial arbitration agreement is subject to a fairly robust discretionary arbitrators interpretation that once you get into the not so distinct let's just say but what that that that's not fourth circuit law we don't know exactly what the fourth circuit would say about this and just to be clear i mean given that the standard  arbitration panel intended when it said you know per post the word rate or rate upon the award date of the award until paid it will have to figure out what that means and what they