it please the court time dacre on behalf of the appellant j text corporation since standing is a threshold issue i believe that it is prudent that i address that issue at the outset the constitutional minimum standing consists of three elements i would like to focus on the first element whether appellant has suffered an injury in fact here this being an appeal from the p product right there is no product so i think we are in between the three cases two cases i think we have more evidence of the immediacy of the harm so relative to consumer watchdog or to fight gen x i think we are readily distinguishable over those two cases but i don't think we can go as far as p p d industries where there was an actual threat of just haven't been threatened at any even that sometimes we don't find enough or standing in certain circumstances and what you're saying here is you don't even have a product much less a threat we have due diligence efforts we have  establish infringement that wasn't a morality family matter so there's never a burden shift well i'm not saying that there's a burden shift but the but at least in those cases you actually have a product and an allegation of infringement here we don't have we have a development process we have money being expended we have potential additional costs without certainty to where we can practice in light of what we believe to be a slash invalid patent claim and any additional delays just creates additional expense here's my problem i mean i don't know what we would say about a case in which somebody came in with the declaration saying we've done this we've got to make the next our next decisional step to get the product together it's going to cost ten billion dollars and we need some certainty we're never going to get the investments for that unless we have certainty you're even i don't even know if that would be sufficient but you don't even the declaration probably has the declaration doesn't give us anything of the sort i mean that's the suggestion that we need to know before we do investments but the declaration doesn't indicate specifically what the next decision is that you need to how much the next decision will cost why you deterred from going to the next step because of the possibility of infringement there's no so tell me if i'm wrong but i can't find any specificity even if the standard were made arguably looser than i think it may be but there's not even that specificity well companies are confronted with design choices all the time in light of existing bands and they have to make expenditures to either pursue a particular path and risk infringement or to make this decision through design around right or they can pursue in parallel until they reach some kind of conclusion on the validity of this patent which is in front of them here we have the ability to go to the peter to challenge the validity of a claim that we think should never been granted to begin with we think that the immediacy of our fact pattern of having pursued that path where we could it potentially having infringing product where we've made investments where we proceeded to proof of concept where we've spoken with customers and where we actually have a date twenty twenty when we plan to go live with this that's why problem and that i don't think the remote possibility that something would infringe is enough to create an injury in fact the supreme court cases are somewhat all worth a lot but in minimum standard is reasonable possibility reasonable probability that the injury will occur and it seems to me that the affidavit don't quite get you there so absent having a live product it's unclear to me how paragraphs twenty three and twenty four in the appendix age sixteen forty four not having a final product there's nothing that can be analyzed wrong french meant now agreed we can try to analyze the concept  the concept having been reduced to practice we have made additional expenditures but we are still at a point where we could make design choices but absent any clarity here we lack the ability to make that that choice and we think that the ability to be informed is significant especially here when we are appealing from an administrator's final decision we believe are well beyond what you would see in five gen x where they are just relying on invalidity of another pad which may impact the value of their current path and we're much further along than that we're clearly distinguishable over consumer watchdog where they're basically trying to protect the public's interest and we've made real investments based on it decision that these claims are invalid and we've reached out through an administrative proceeding to have that decision analyzed we've made investments on the assumption that they would be rendered invalid it likely would be for business reasons business decisions we would like for it to be but there's no technical requirement that it has to be do have concrete plans to roll out a product in two thousand and twenty so these are not someday intentions we're not sure when this is going to occur we have intentions to roll a product out i agree we could change course between now and twenty twenty but we do have evidence that we do have a plan to roll out a product based on a concept which based on a due diligence analysis at the beginning of this whole process which we have specific declarations discussing this particular violate those procedures if we want to ok but i can't get that all right but to the extent that i i understand that is the procedure i'm happy to answer any questions and if you don't have questions on specific things then i also would rest on the brakes which i think pretty good there so so what about this we're not into that what is what was your client's position as to whether the concept reflected in the four ninety two at and would infringe your path ok so s and i don't know how they're combining the concepts in there to basically say that it couldn't print we haven't evaluated the patent for infringement of the four four zero hasn't done that there was no reason to because throughout the proceedings bilel their product was never at issue but not in the right or there's a problem here that we have in these cases where we have standing issues that aren't explored in the explorer at the board level and it comes up to us and all of a sudden we don't have a record of those before us as to the the they attached it's pretty clear that they hadn't sold it yet in may two thousand and sixteen this is the only business record and that's a p p x one seven three two is the actual site and they talk about were motions filed a motion to dismiss and that was responded to and then there would be a reply so if in those circumstances there would be a situation if there was a specific concrete product that that prima facie showing if it exist it could be rebutted and maybe that then the you know the patent owner would have some bird and come back with some evidence of and that it either infringes or not infringe is or you know what have you but you know in the stance that were in there's no reply they put it in we respond and we are speaking hypothetically because i don't believe that there wasn't would have been anything to analyze in this case when they say that the patent is not our product as th combination you don't know and then they say a footnote three of their reply very that until they have a customer and until those customers combines it with their product there will be nothing to analyze and i will say this too they remove in the differential are they dealing with transverse you know power dividing distributions you know are they dealing with a longitudinal it's none of that is there to analyze and there's you know so i'm speaking hypothetically talking about the motion noticing that in those other cases that was a process that might avoid dealing with the substantive issues unnecessarily or dismissal but i think that in this case it's not that different  because it was used in europe and there was still commercialization partners that need to be found in the us and there was that was dismissed for a lack of injury in fact which is still the constitutional minimal   i recognize i draw the facts from you know the brace because when there's very little you know precedent you have to take it where you can get it but it was dismissed it was an opinion that came out in april thirteenth i that even though they had a concrete product it was known product but they didn't have it in the us and they didn't quite have the commercialization partners in place and that the same situation as i put it on a  brief and until they have that there's no product to be in of lives and regardless of how much you relax certain things like addressability an actual injury in fact is still a to tional minimum floor so that doesn't change and so it can't be based on conjectural hypotheticals which makes it not imminent engineer it is conjectural because there are a lot of things that reliable easy and so for some vehicles that's going to be put in place so until that's all done you know it's not determined what the product with is going to be all of which could result in a change the product link all possible development avenues open because they don't have the customer based and when they talk about money spent i have i didn't see any tie to the specific concept of me or any specific and one thing that was mentioned was that that whether there was policy arguments of what the law should be versus what the law is you know and and there are times that congress has created an artificial like you can you could do an x party reexamination put it out there the path you would deal with it and you couldn't be involved some people chose to do that and some people chose not to some people can get a written opinion from a lawyer and they make their decisions for and standing do you have any other questions or anything on the substantive issue would also like to address the issue of whether or not there are specific facts creating a nexus between the concept of the before nine to patent and claims two and three of the i do believe that paragraphs twenty two to twenty five on page sixteen forty four and sixteen forty five of the appendix do that there we make clear or i should say that declare and made clear that the four nine two pa a four wheel drive or discloses a four wheel drive disconnect concept where the secondary drive train can be disconnected from the primary drive train when not in use through the use of twenty clutches on the side shaft so we're back have specificity regarding what that concept is it is not as broad as been characterized by the happily declaring goes on to say that based on his knowledge his personal knowledge that the concept illustrated in the four nine two and the fact that the twin clutch aspect is likely to remain in any product his comparison of claims to in three and that concept create risk for day to act and then he goes on and to pursue the concept of the four nine to god and that does create an injury and there are a specified date for a product which would invited those concepts and i'd also be remiss if i didn't discuss the impact of i p r stoppel here i believe having advanced a fact pattern at least beyond what consumer watchdog and