ownership of the seven six four patent and that part is under wyoming state law dealing with the interpretation of contracts the second issue is the issue of an adequate doctrine called shop ri and whether marathon or penny going or g has the right to use the invention claimed in the seven six for pat which is owned and invented by mr preston the issue on the cross appeal of course is the in here that it is very very correct the issue of the contract issue is actually two issues there's sub issues in there the first issue is whether or not the contract that marathon claims requires sufficient consideration it requires more than continued employment what happened in this case is you know preston went to work for panic go in or g m in february of two thousand and one they gave him an offer letter he accepted and signed that offer letter and went to work under that offer letter from pinnacle energy which at the time was a wholly owned subsidiary of marathon oil company what are you after he began a war over a month later america on presented to him or chemical presented to him the what they call the employment agreement which he signed on april fifth of two thousand and one subsequent to his employment and subsequent to his contract napping in a district court found that he began work on role in the evidence or in the documents that support it is there is there anything to support a march thirtieth starting the documents that are there in place for the feb twenty seventh two thousand and one offer that was accepted correct all requires for his employment is essentially that he passed the physical aspects i would got a driver's license that he passed a drug test and those types of things those are the only future requirements that are set out and that original february contract court when he should start which the start date in that document that was agreed upon was march fifteenth early mutual time agreed to by the parties so that documents such as of march fifteenth that sets out his position it sets out the the amount of money that he is going to be paid for his salary when he has to report to work or what his job duties are and where in that document is the ip assignment or requirement that he assign any a law to a property to panic going or g or the parent company the present and with this and he sent you are you arguing that there has to be separate consideration for to me even though actually the gun work yes we are arguing that there has to be separate consideration because the first document the february twenty seventh document constitutes a valid contract under wildly law there was an offer an acceptance and consideration he began his work he later signed the april fifth document another wyoming law harper vs all pet  guess of you going to look at while we walk you are a number i suppose you never thought that you would get to do that but while we law does not have any wall with respect to our distinction on intellectual property assignments and it does deal specifically with the non compete and a little different than the public policy around transfer of my appearance that those correct with the with the distinction that the non competing deals with restricting someone's right to work in the future and make a living in this case we're going with a constitutional property right that an individual holds and what we can extract from the hopper cases the hopper cases that we recognize the unfair characteristics of an employer employee relationship in that an employee doesn't bargain for continued work that that's something that's necessary to their life and they don't bargain you bargain for that continue to work and so that while we know said we're not going to recognize continued employment as being right that is those a possibility we're talking about knowing competes in the intellectual property where you can draw a distinction there is that and even in this case the this record of wyoming  ohio knowing compete law to reach its decision here and then turned around and said i will hopper even though deals with non compete is an apt war what what i would suggest is that wyoming has this sharp distinction in all respects while didn't build directly with the and lecturer probably assignment we felt that was very clear that it required separate consideration above and beyond continue to plummet when the court held that hopper and there's two for that there one was the issue of the court didn't even go on to interpret construe the terms of that employment agreement and the definition of intellectual property and then specifically with her graph for which what was contract to say that it would cover little more than a big idea because the idea was conceived and actually what the district court said was that it wasn't reduced to practice and that's what he based please the court counsel unaddressed five issues time community those will be first in force ability of the employment agreement as was discussed with respect to the hopper case second and related to that i want to discuss the evidence in the case posture as it relates to the march thirtieth versus march first alleged start date third i want to talk about the specific facts and we do think it's a factual inquiry  proof the same issue of proof that mr preston failed to meet in proving that he conceived of this thing before he joined murtha and when in fact he had no witnesses to prove that it was a different so so it seems as though the employment then it would be covered under the grant clause to america the second though is that's the clause that give it's in the closet taketh away from marathon is what's specified below as a prior invention if in fact you can see it and if you can see that case not of contract interpretation but of fact finding and that is was this something that was developed during his employment marathon or was this in fact the thing that he developed at marathon was that the valuable invention and he claimed to have prior drawings but he couldn't find anyone who had actually seen him he allegedly lost the drawings and cannot produce in the trial he never showed them anybody when he came to marathon and started work on this project some like it they look like a single plate with holes that so you got in and this is a guy who claimed to have invented something very specific that looks like the end product yet when he begins work on the project he starts with something very crude and it moves into that form let me see if i context of the invention the question isn't so much did conception occur or did it not occur the question is what did mr preston prove was conceived and there's what he proved was nothing more than a vague idea there was no a water question no i know of no other cases from the wyoming supreme court what i knows that the general law in wyoming is at will employment i know that the pentagon agreement that mr preston agreed to early on before he started work made very clear he was at will he was in at will employee who could be dismissed at any time for any reason and likewise he could quit for any time at any reason including the fact that he might not have wanted to sign the assignment agreement  fifth that's the general rule in wyoming hopper is an exception for a narrow situation concerning a covenant not to compete and on that point we would refer to the judge's order where he specifically addresses hopper not the findings of conclusions but the earlier one at the very outset of the trial where he clarifies what he had intended on summary judgement because i think that states it well the rationale why wyoming would not extend the hopper case to another area but if that were the final i guess i would say there's no reason to send it to the wyoming supreme court for those same reasons also the fact that mr preston didn't appeal the denial of his motion to certified not that would prevent this but doing it but  more this court certainly could that you could ask for any ten want to extend a particular line of cases that would then you would send its wyoming screw court which clears the wyoming supreme court has made one very narrow exception based on a long line of  public policy and history disproving covenants not to compete on that screw but you know all the way absolutely united that was an issue i wanted to address i think the judges footnote in his order makes clear that you know we've not contested that there was some disagreement early honest on summary judgment whether ohio law would apply or not as the court notes would not contended that we were looking at wyoming law wyoming wrong as a general rule that has one narrow it settled at some point because hopper consideration is needed to impose a covenant not to compete this is a different situation mr preston could have been dismissed from his employment no they have decided that was the way they actually have now that's the that's the narrow question they it's fair to say that the district court limited this separate to the eleven wells or do you think it's fair to say that the district court left open the question on use in the future i think it's an open question for us in the future in a hypothetical question because with that there was infringement allegations in the original complaint that's what got tossed with the shopper a motor summary judgment motion there's no reason for this court of the district court to consider what marathon m wyoming and that's the only place this is ever been and still further would point to the evidence and say that what we're really talking about is something like forty baffle plates that were manufactured for a marathon at request that were paid for by marathon they were shipped the invoice was sent to marathon to the attention of mr preston he knew full well that approximately forty baffle plates were manufactured these wells had between one and four baffle pla depending on the configuration no more graphic plates were manufactured and this was the initial wattage place that he there's also a wish list introduced a trial that talked about the wells that might possibly have if i can respond to that in a little more general fashion the issue of whether separate consideration would be required for the april fifth agreement should never of been a trial the court had ruled prior to trial and that's why you don't see  further evidence or when mr preston started the issue that the court had already decided on summary judgment that no separate consideration was required the issue was renewed on the eve of trial and the court ruled the first day of trial from the bench which is followed up by the  order that was filed on january twenty sixth actually signed the twenty fifth where he explains this rationale but the point is before a trial even started it never even should've that the issue of mr eight should not have been introduced quite frankly it should have been relevant to anything because we weren't trying that issue that notwithstanding yeah we've got the only documentary evidence is the w four and this document and then there's a benefit statement that if you actually look at the top of it i'm sorry i misunderstood the question the no i'm arguing that there are two separate agreements the first one the pen a good dream is what began as employment at marathoner that ultimately became marathon we never had one document introduced showing that he worked for  make the argument and do you think the district court has made the findings sufficient to justify the argument that this agreement in your into on april ninth that's part of the initiation of employment what because it in my view one should be left to the legislature to carve out exceptions to the so you know about one hundred seven percent nations to none other than if that were the case i would rely on what's in our british regarding the absurd results that if we're talking about a very short period of time it would be absurd to then and that's more an issue that i think think you're missing my time's very short of this one address one point that being the last point of the distinction between the two agreements the first agreement the february agreement is the contract for the employment and that there is no condition a separate or separate document there was no additional consideration outside of the work aspects of those for that document so be no different than me working for a company and then coming to me later to say hey here's a you have a patent assigned this pat to me there needs to be separate consideration for that assignment and that's what did not occur here was there was no separate consideration for that separate agreement that it was not tied as a condition to his employment when he signed  advise our clients in these circumstances to give them separate considerations in the passive context this is different than filling out w tos and things like that you're not requiring the employee to give you their rights their property