warning may please the court i'm alan foster and i represent the relate or like to make two points the standard applied by the district court to the direct knowledge requirement for an original source was wrong and under virtually any standard in j had direct knowledge because in the face of the conspiracy of silence among the defendants in j ferreted out the fraud through its own efforts and mediated by anyone else when i concession in fact it's quite quite the contrary indeed one of the most important documents upon which m j relied was the cal tech invention disclosure forms which were certainly not  wang viewed the evidence of the fraud with his own eyes he didn't view the fraud with his own eyes he viewed the evidence of the fraud with his own eyes because he was sent in after the fraud actually occurred to find a solution to the problem of the gears that  were allegedly the source of the fraud and so just as hear him say came in and saw the evidence of the fraud with his own eyes totally private document and that that evidence led him the m j to believe and to  that number one the inventor show up on the patents was incorrect because the invention disclosure form said that dr hood was a witness not an inventor and he suddenly appeared as an inventor on the patent application and district court did and where we believe the district court was squarely wrong let me ask the flip side of my question what is it that you're relying on that is and that's your element of the fraud which was disclosed publicly on ok i o well i'm sorry i didn't understand your question that was disclosed publicly publicly before the filing what i just told you but the important point is that m j is original source because it had direct knowledge of that that's the point in fact qualifies as qualifies as a regional source because it had direct knowledge because if found out about that document through its through their investigation well it's not covered this information not only through their investigation but as part of their investigation when they in essence were asked by the defendants to become a part of this conspiracy by participating in overcharging the government they wrote a letter to cal tech asking specifically the question were federal funds used in the conception of the invention cal tech program jack and this is not an investigation this is being asked to be a part of this scheme cal tech negated by anybody else private information that the purportedly inventors do not have a single piece of paper to indicate that they'll build one single thing with regard to this invention before they file thing in connection with an invention before they claim to have invented it it also coincidentally happened about a month after the true inventor left cal tech and about two weeks after one of the purported inventors went to a private conference and definition no less not a technical term the insider who witnesses what's going on and blows the whistle now in jail couldn't have been in s significant point the one point that i make they were an insider but let's take that this is the easy way in the hard way under the false claims act the easy way if you're exactly right there is an insider who comes forth the there is no insider to come forward with the problem and the reason of the problem is the congress defined the term original source as someone with quote direct and independent knowledge correct and that that's the opening you have to go through yes or and in lang for example this court held that somebody who was not a party to the fraud not an insider to the property but inde sufficient to have correct an independent now he so there is absolutely no requirement as the district court imposed in this court that you have to be an insider and furthermore it would make no sense if there were because if the defendant what you would say is if the defendants are complaint which is in the record despite despite its length if you can honestly come away from reading the third amended complaint and say that m j did not bring everything to the party that was brought to this party then i guess there's no such thing as cracking the veil of pot because m j brought everything of any value that was brought to this party it brought everything to the attention of the government it brought dr defendants contended that the published reported articles which acknowledged federal funding for recession to practice it continued no no no we really didn't mean that and then we said we had several funding really we were meaning that that funding all the time you know there are some cases where you say well listen that's something a federal investigator would have found that anyway some of the cases raise that point in this case there was a federal investigation and they were federal investigators and they don't when and which third party related and they take a share of the government's recovery through later m j in this case made a choice before filing the ski town action m j decided first just spread its allegations of fraud through various media outlets that's what raised the public disclosure by identify the district court in this case forcing m j to prove to the district court to reduce evidence adequate establish that m j was an original source of information you have to prove to the district court that you are within that narrow category of related for whom the key town provisions were fundamentally and originally designed that you are and original source of the information underlying the allegations determining whether or not the relator had firsthand immediate knowledge of the information and mediated by the labor or knowledge of others knowledge of the derivative of information of knowledge of others is not firsthand personal knowledge why distinguish this which rang with a case involving a relator who had direct involvement in the government project in the government contract issue the point bradley fighting vehicle when himself work on that project and for that reason because when i worked on that category of cases that involve such a prior media disclosures we will carve out a category of elaters who can bring those cases and those are those who are and this court put it in the in the fine case  jay's knowledge simply does not satisfy that test at all look at their own declarations look at their own complaint look at the information they themselves repeatedly say that they relied on in uncovering what they believe to be  tech about what they believe to be the fraud that's not correct in the bar case they interviewed employees he wrecked the union official my case interviewed a number of insider employees got the information from those employees that union official just as hard as they possibly can to uncover what they think to be frauds prior correctly said the hanssen case kudos to that relator and in the normal situation the relator can bring a key time action and take a share of the government i think everyone again just like the bar case just like the devon case where again they speak to insiders to inside employees get information and this court held that hearing something from an insider doesn't make you the insider doesn't make you the first hand source the employees may well decisions about whether knowledge is direct let you have a private conversation with somebody when you derive your knowledge from them your knowledge is under that circumstance nevertheless derivative and therefore you are not the firsthand immediate source of the knowledge provide m j with any significant information that it adds to its own other than information derived from other sources and most importantly from public sources in this case it's important to recognize that so much of the information on which they rely again according to the cory declaration itself they are very clear about this the information they derive in order to establish their allegations of fraud is almost entirely public and that the information that's not already public is information they need to write and hear from other people again pursuant to their own self interest investigation and i'm not even criticizing them for that they investigate it just like the investigator in the hanssen case just like that the union officials in the case another one where an inside employee is told by another employee information that second employee his information is held to be second hand not first chance of the mere fact that you're an insider isn't sufficient to establish that you have the requisite direct knowledge the second point of course is that they aren't actually an insider with in any meaningful sense of that term as their own direct that place again make quite clear make absolutely clear from the moment they began they initiated this so called business relationship from the moment they began they were making an effort to discover this information in order to establish that the government was not entitled to a less intelligent discount and that most particularly  j didn't have to pay the discount from day one that was the entire process again i don't need to criticize that decision particularly wrong with that they had a business reason to do that that's fine but there's nothing in this not a sense of due diligence in a potentially productive  business relationship this was an effort to accomplish something in their private interest and again what the statute says it is if you're somebody for whatever reason who has the public interest you can do the government service you can bring an otherwise hidden fraud to the government attention to the public attention and then you can share in the government's recovery but if you don't have this course that significant information of your own to add at that point when the information is already available to the government already publicly disclosed then you  decision one of them is this claim now that they're an insider there is no fact finding by the district court that they were thought of that they were an insider and i think it's the fact the facts in that decision that are that have been found against them that in fact they were willful infringers defiantly in contest with them at the time goes to the question of whether they were in conspiracy together and whether they were friendly parties that's the only point that i think it's relevant and i think the point is they are now claiming to be an insider and they're saying the  hundred ninety nine relationship between and jane of clara is important to the analysis of whether they're an insider whether whistleblower whatever else and i think there's additional fact finding on that i don't think that's can be resolved on the current record and certainly wasn't resolved in their favor on the current record that's just the point i want to make on that that's three seventy two f subsecond two thirty three that's a related case to this and we can fill out one of the for you on the next point that i wanted to re raise  and i think the issue is the argument that was made by mr foster is the publications the n e a article on the nature article in the one nine hundred eighty s both disclosed that the reduction of practice that's at issue here was funded by the government that's what he argued and the information that they use that they obtained has to be both independent and direct and that's not independent that's a public disclosure that's a bit right for this court now and they're obtaining that information from those public sources is insufficient because it's not independent and the test on independence which is conjunctive with direct indirect with the glass will not going to go over that ground  the test for that is whether the public information enabled the government to pursue an investigation well obviously publications that say the government funded the research that's a fraud and the fact that the that's what they're saying they found that's what they seem to discover that was public this could be and that would have given the government a basis to investigate and importantly in the alcan case the court said the issue isn't whether the government's likely to learn it i mean that's the argument the government can go to these files and find this article of any article think go find these things question isn't whether the government's likely to find that the question is what was in the public domain and could the government hadn't known that their adoption of practice w make the distinction so there's the public funding it was clearly in the public domain there was nothing more that needed to be done by the government and then the one we want allegations that any one allegations were resolved in the district court secular state of california found that all the allegations  whether that's binding on in this case and i believe it is that's at section two eighty five in better shape proceeding it's all notice that for all concerned are available so i think that's going to be that should be binding on them if it this were to go down and remain and i think it would be resolved that's dead on arrival but why so it's important to distinguish the inventor ship allegations which you can resolve by just a court and the public funding allegations which i think are clearly in the public domain studying this thing for years they've been taking new information the result of the district court proceeding recently were that there are no pending investigations with respect to this particular matter or that have not been closed so there's still pending i so forth on that i think based on the argument of mr foster that in fact the public funding of the reduction of practice was publicly disclosed in the nature article about a major invention and a article there's  no question that independence can't be met for public funding us what did you argue in the district court with respect to primary jurisdiction primary jurisdiction the argument was that these that the multi agency working group should be permitted to perform and finish it launch rocket system was experiencing gear failures wang who was trained in gear technology was part of the team of f m c engineers called in to study the problem and this is the gear problem was the underlying fact in the false claims issue in other words that the contractor had supplied to the government a fighting vehicle with a gear problem that it knew was bad and had not in accordance with the specifications of government specifications and thereby had submitted a false claim so here is wang who knows nothing about how the gear problem developed knows nothing whatsoever about what representations were made to the government about it his entire knowledge is dr because he is called in to study the problem and so there is obviously no requirement by th what was applied by the district court and the blank court goes on to say wang had personal knowledge of the bradleys transmission problems because he worked however briefly they only work two weeks on trying to fix them so the court is clearly aware of the fact that wang was not an eyewitness to the fraud and that can't be the law of the circuit second the argument you heard was about all of the examples of what m j did that was public knowledge none of which rely upon when i was arguing to you i relied upon are things that in j did they were not in the public domain cal tech information disclosure invention the disclosure was certainly not in the public domain the henry hwang note burks were certainly not in the public domain the letter from cal tech directly to m j with the law was certainly not in the public domain the husseini invention was certainly not in the public domain the conference where the professor has seen me presented his findings and where that was asked would it work for the end i was certainly not in the public domain none of while we're really not arguing about independent we're arguing that correct now the disclosure form the cal tech invention disclosure came from ken johnson who was not even in the employ of and he went and one of the things he found was the invention disclosure form and then the other thing he found one was the license agreement between cal tech n f well let's recognize the government's by their right that certainly wasn't in the public articles that recognized federal funding for reduction to practice yes those two articles do recognize and their cow one is a calcutta press release and the other's a nature are article by the for ported inventors and they do say that there was that there was public funding but that's not the point cal tech came to the government before all of what they cal tech came to the government instead but we didn't mean that that's not accurate there wasn't public funding when it was reduced to practice that's what came to the government and they said no we got the public funding later with the invention was developed after it had been in fact been done during the period of public funding so that the public article do it did was put somebody on notice but then kel tec came in and countered that i telling a lie and what i did was prove that it was a law and none of that was in the public domain it was all things that in the injury discovered by its own efforts on mediated by little body else and that of whether or not the way in case below that's the h u a and rather than in the case well resolves all the issues in this case about invention of the government is the real party in the interest here in the government can't be collateral