honor patent law is already so much more accommodating in terms of curing prudential standing than anything else out there in a normal case one cannot cure prudential standing by doing something later specifically recognized this in a normal case and prudential standing you can't go back and and correct after the fact you pretty much have to dismiss and start over again if you like financial standing because of the unusual situation  so they're already cut an awful lot of slack and in the past situation if they bring the suit without all substantial rights if they don't have standing in their own name you can add the patent owner throughout the district court proceeding to so as to keep the case going with the original parties and have it relate back to change the rule now and say and refer senzo and say that no harm no foul  during trial has had a lot of issues it certainly is your honor but it was an enzo as well and so the case it got all the way through the merits and they had every opportunity as here to do something about it that's why i say that no harm no foul is not a good rule of jurisprudence there were four ways under this court's jurisprudence they could have changed the contract before they sued they could have dismissed and reviled immediately they could have added the district court they still never added it they pella court although i would suggest runners who point out the briefs that this court has never allowed adding of the patent owner at this level except where it was sandbagged that it never came up at this level or the parties never ra mentor when the corporations who are sponsoring so they're in and so there was the same problem plus your honor i don't know how clear any of this is from the record but there is a nother lawsuit under a continuation patent against my client  which is a narrower patent for the exact same product during the exact same time period so we will be litigating whether the same product gets in trouble or not and they've got another suit against three individuals associate with my company for filed after they didn't have to join the patentee and the one that was were still before the district court making sure it by involuntary jointer if they want to so you agree that had they simply dismissed and  exactly right and if that's your best guess as to why they didn't do exactly that when they found the supplementals complain it's because they didn't want to lose the ability to go back six years from the date of the first complaint i don't think that would have mattered in iran are they just for playing by the rules of discourse a down i don't i think now they may have some issues with that which is why the suit by individuals to try to preserve that but as long as and this is revoked intervening rights kicks in that won't even matter because they're only going back to two thousand and eleven when the  certificate issued so there is a home for this case with the same disputes if discord dismisses the other cases filed in the same course there in the same district court one is before the judge down the hall once before the same  and i suspect they would be consolidated the other side says and so distinguishable because the kids about constitutional are men here we're really talking about production it clearly is not constitutional standing is whether you even i mean there's  three part test but it's basically whether you even have an interest that you can be there with the patent or if you don't you don't even belong in the court room at all and it's clear in the end so opinion the judge rich is talking about potential standing first of all he lays  anybody lays out the test do you have all substantial rights and all substantial rights as a prevention stand in question that's basically watermen versus mckenzie i think and i think the prudential suspension probably came along in the case  later i'm not sure exactly what the supreme court cases start to blur together with all the issues we've got here your honor but i think that the test of prudential standing as it is a fault in this court is definitely what judge ri working for and judge rich's suggestion in that same opinion that they could have triggered the standing defect in and so by adding the patent owner you cannot be sure of constitutional standing defect by getting the patent owner because you don't even belong in the courtroom so it's pretty because you see the parallel here we have a supplemental complaint that was entered after the licensing problems were cured the standing problem with care so why doesn't that suffice your honor the test for standing existed but not to state new facts for standing purposes the test of standing as a bottle so i think it's a different set of those claims so your argument would be maybe your distinction would be in my example it's a whole different claim that three issues closely related and you think there's a need to i mean you're arguing standing right you if we decide this case the way you want you decide this case on standing we are going to have to go back and do it again this court does not reach anything else that's going to go substrate so he has a gel that's formed by d and his composite of that gel in the substrate is physically in iraq hammond comes along and says paul your things fine but speech is a lot better which is the essence of of mr chen's claim and and he goes out of his way to incorporate by reference the only quite the vote by reference the only question serious question could be raised is whether hamdan is clear enough in so the plaintiff did not have constitutional standing the date that the complaint was filed in the case in our case we did have constitutional standing that's not questioned under lucienne we met the three elements we had constitutional standing or they they all did and it was an issue that's been raised by a highway in our piece all of these cases and in the end of case factually the plan to not have constitutional standing that's undisputed some because there was there was nothing in resume we're talking about i believe and so your honor and the end of case the there was where our position and we believe it's clear in the case there was no constitutional stand there was no agreement your second question related to what they're some kind of oral agreement and is that the man did license agreement even if we didn't have standing both credentials and constitutional at the initiation of lawsuit which we contend that we did it was the prevention of standing peace was cured when the amended license was entered into indicate that but even if i were willing to because certainly wrote much broader than simply a focus on constitutional standing issues but even if i were to accept that argument well then you're in a scenario where maybe we're not bound by and so but we have to decide whether the same logic that was used to decide the case and so ought to apply to this case and i'm having a difficult time determining how judge rich decision ought not to apply to a circumstance involving prudential standing especially in light of all of the supreme court cases that came new and greed in all the regional circuit cases press room unions fields from the third circuit all of which i think are credential standing cases and say you can't correct defects in actual jurisdiction in fact after the time of the original complaint and every one of them was a circumstance just like this which involved we just got to go back and do a do over even though nothing would really be different you just have to do a do over because this is an important vote but we're not going to allow it to be modified i appreciate the point honor two points and so it's factually different because again in is that we believe that there was no constitutional standing if you believe that the church didn't say that that wasn't what he based it on he didn't he didn't make that constitutional standing analysis and nor did he live it his  and under all of those facts we believe that the reason that didn't work is because constitutional scrutiny that makes we only that but that's not what he said so apart from that even if you were correct why wouldn't that identical rule why shouldn't sure that identical rule apply to a case that you say is based exclusively here on prudential and i don't see any logic that would result in two different rules for us under the intellectual property development case for are there is a distinction so again a federal circuit opinion the distinction being that constitutional standard cannot be cured potential spending can be cured and potential standing for instance could be cured by doing to her case follows is very clear that you can cure a potential stand you don't have to dismiss it starts to get over but you know and that's an exception on the part of patent law that doesn't exist pretty much in any other field of law you can cure this defective pretentious thing by joining the actual right to hold and we are and so why didn't you do that you could have done that at any point and then we wouldn't have to deal with this mess why didn't you do it because we had three different district court judges respect for your daughter's that wasn't necessary we're happy to join in the search and mr chen has given us all all rights in the  individual inventor he's not associated with a company but he is the only employee of the company because mr chen of participating in the litigation mr chen's preference was not to participate if he didn't need to we believe that he doesn't need to we began issue came before three different district judges on the same facts the same parties the scene and we were told each time we were prepared to bring him into the suit if it was absolutely necessary and we were told that it was an absolutely necessary we're prepared to than the umbrella of ways the prudential standing can be cured i mean that just takes us away from what regional circuits do every day with regard to prevention of standing we've already done something a little different and unique we're guard to patent law but i mean you want to move us even further away from of the norm with respect your honor i don't think we're asking for what's wrong with the suggestion i think what we're asking for is there there is no potential standing issue today because because the patent agreement cured and then amended complaint can then be filed to cure of the defect every act every single case like i said to the supreme court's newman green the second circuit's pressman pressroom unions the field circuits the field the third circuit says that can't happen exactly that scenario they're not patent cases none of them i just don't see why we ought to treat a patent case differently in your argument is well put we already treat patent cases differently because we allow you to join and thereby cure but what you're asking us to do back my first year on the bench i think on all fours and identical case that case of the field of use and that's what you have you have a right to bring suit but only in field of you and both of those cases the supreme court spoke decision like eight hundred ninety seven or eight hundred eighty seven and in light of hand which incorporates a reference developed sure the other is given that we have to treat that as a single reference because one incorporated the other by reference what we have in that combined references to the c polymer gel combined with the substrate i respectfully i don't believe that hamman and show that they don't show a composite which is important composite is a key word in these think we our case went through two judges in the first judge ruled contrary but when judge scriven picked this up to a sponsor she thought contrary to and so that she was dealing with was an issue that discord never addressed and she said i'm going to go ahead and let th retroactive but she pointed out i can't find any case it's never let a judge like me do this again and she in that order strongly urged them to add the patent owner so it's not as though they were told by the district court that they should follow the rules  discourse has been discussing a couple of other issues on the cross appeal your honor with respect to the intervening rights that is a claim construction issue there's a question of what the claims met before exam and what they may have to resolve with respect to physically in k i don't think they can even raise the arguments are raising here because the language that they relied on in their opening theory was that formed with the language and as we point out in our opening and our response to that to their opening brief they originally proposed that formed with wheat as in making the composite form with the involved physically interlocking and my predecessor argued that no it didn't it simply requires heat and that oral argument on markman before the  stipulated agreed order that said a composite is what you think it is is a composite it's a combination of the plane meaning nothing there about this equation or lock in either so for them to succumb to overcome this intervening rights they have to court was over rules seagate the court should follow what it did strike or and what it did in halo which would mandate if the court doesn't dismiss on standing would mandate reversal on on wi