sensible to give you extra time for your argument and so you can use as much as thirty minutes to a side if you need that much that you can you don't have to race through the thirty minutes and you can spend and that at that time the information may have been conveyed to them while they were acting within the scope of their employment but that later on in applying for the patent application was not action within the scope of the employment in there or that the how to write a statute doesn't apply to those actions you understand that the same way that i  do i believe so your honor i believe that dr reserves position is that the operative acts for purposes of assessing scope of employment begin with the filing of the patent application and the commercialisation of the inventions so within the scope of his employment during that time period we believe that in order to avoid the mandate of colorado notice provision the court would also have to find that at the time of the a legend in mentorship and derivation that time period that dr allen and stable were also acting outside of the scope i don't understand the latter i do understand the former point that that if they're acting within the scope of their employment and applying for prosecuting the applications that the colorado statute applies i understand that argument i don't understand why the colorado statute would apply simply because they receive the information in the scope of their employment if there's no allegation that that was wrong in fact the true inventor and that was the nature of one of the things in the americans university of colorado versus american spy animal cases which involved state claims it but i think it was as i understand what  saying is i gave them the information the receipt of the information not long for so that what happened in the scope of their employment was not long for it was only later on when they were acting outside the scope of the employment that they committed one full x i i that if under that period and i thought you agreed with me that is their theory i don't understand why the fact that they were acting within the scope of their employment when they received the information or that  acting within the scope of their employment when they invented that wrings them within the scope of the colorado statue and none of those actions are alleged to be wrongful and none of the action which none of which actions are  those what what is what does it matter whether they were acting within the scope of their employment when they were receiving the information from reason or reason or is not alleging that the receipt was wrong  that not just that the receipt was wrongful but that dr allen and dr stabler than and purported themselves to be the inventors of this and applied for patent applications and i believe that's the later that's the later activity that's a later activity but i don't what i'm trying to add to that and i think you want are on the same page about what the issue is with respect to the later activity i'm not understanding why the earlier activity invokes the colorado statute since there's no issue it's the it's the nature it's the nature of the entire claimant it's correct that there's not one element standing alone that is wrongful they require anything anything anything they if they have to produce any evidence about anything that alan stabler did while they were employed with the point with the university the claim is barred by the colorado statute now we don't believe that that's that our position is quite that extreme your argument now or our position is that actually to take a step back that throughout all of the relevant conduct both the inventor ship and derivation timeline of the conduct as well as the continuing conduct after the invention was disclosed to the university and assigned to suppose that instead of going to metabolite and setting aside all the relationships between metabolite and ministers and their continuing role as professors with the university suppose that everything with the same with respect to the time and place of the acquisition of the information but that in one thousand nine hundred one the professors both went off to a private company and then in are arguably not and we believe that that is not our situation because they're not particularly it wouldn't be surely not well it if i would assume a certain additional facts and to supplement that if i also assume that the professors did not disclose the invention to the university now leaders are closely disclose the information they got from dr reason of the may have even said look what we've come up with and then all of that happened while they were employed by the university but but the the application for the patent occurred two years later when they were private employees and they were private employees of a private company and they didn't severed their relationship with the i understand altogether i understand employee and there's a district of colorado case called king that involved a campfire that was started by some students of a charter school for example could put to you answer my question is there any case that suggests that th bryson's hypothetical the colonist actual plot oh for that particular habits that i don't believe that there's a case that has that particular fact pattern of or anything like it no there aren't there really are no colorado cases that arise in the context of happened when they applied for the applications and i as i understand that the contention is that when they plotted for the first application the one twenty six up that happens in december of ninety ninety two that they were acting on behalf of the colorado university of colorado patent policy which specifically requires that faculty even after the university has made a determination that the invention would be assigned to one of its designees that faculty have a continuing obligation under the patent policy and pursuant to their employment contracts to participate in the prosecution and find any documents that's a vague thing but is there any  that after more than nine hundred ninety three alan stabler were acting within the scope of their employment in continuing to prosecute one twenty six application and the and applying for and prosecuted the other application did i don't know that that question directly was presented to him by the plaintiffs when they took his deposition it was supposed suppose that at least beginning in march ninety ninety three he was acting for himself or acting for metabolite how  the tabloids benefit and there were no relationship with the university and he was not continuing to at prosecute the patents and an effect the commercial transactions pursuant to the university policy that he would be acting on his own but in this this court's decision in that showcase there was a circumstance where a university professor admitted lee at a private university the university of chicago was accused of theft of invention and the university policy in that case w similar to the one here where it permitted the university to either take ownership or direct assignment of faculty inventions to a designee you haven't and i think that helps i mean what you've got we've got it now to deal with what the record is here and the record as i understand it is that there isn't any evidence that they were acting within the scope of their university employment after more chip one thousand nine hundred three well in in the cho case what the court specifically said is whatever the arrangements concerning the assignment and ownership of the patents those decisions belong to the university and the professor was acting as the university agent when he arranged the business transactions so we would say that that may be what is worthier but that is what were they doing here and there's there's a complete lack of evidence that they were acting for the university after march ninth the ninety three where the university after march one thousand nine hundred continue to hold an interest in the past and let me ask you this question when they were protected the universit interest suppose that instead of the complex arrangement that we have here you had a very simple arrangement that the doctors went to the university and said you know what we do work here full time and and but we've been doing a little ok and the university said well it's fine but we'd like twenty five percent of whatever benefit comes from this but it's your patent you put your name on it and so forth is that enough to constitute them as acting as agents of the state for purposes of immunity i would say no because the now it's it's going outside of the university policy the university now the interview is policy is we'll let you do this but we use the facilities and because you're employed here we'd like a little bit of a piece of the action and in with the invention in that case be related to the professor's hematology practice or would it be but something let's assume i take take them in and that's if a sou assuming for starters maybe the easier question for my purposes is assuming that the that the inventor ship is within the field of their hematology practice and the professors have asked can we set up we will do the work within the university laboratories but will would like to have the pattern the signing of the university of share it's difficult for me to understand university policy gives the university great discretion in how it wants to treat faculty discoveries so i do believe the hypothetical is a university gives them the path where you have it but when you exploited you have to share the revenue with us you have to give us twenty five percent does that mean that they're acting within the scope of their university employment in exploiting the pap yes why because why would they want it because there was no other reason that the professors would need to share twenty role make the actors state actors and the the corporation is owned if it order of the shares in the corporation are owned by the university does that make the employees and officers of the corporation state officers i think that would be evaluated under the arm of the state authority that doesn't make ford motor company a state actor right but so what's the difference here well in my hypothetical i'm setting up a hypothetical that is exactly the same as cowper's owning a chunk of metabolife y what some of their actions are as university employees and some of their actions or on behalf of metabolite on behalf of themselves right i mean their whole lives are not devoted to acting as university employees correct well that that's true but the con the conduct that's at issue here is not that they mismanaged the finances of metabolite or or that there was some other conduct reaching a fiduciary duty to metabolite that is separate and apart from their role as  that they were acting for themselves or acting for metabolite in applying for and prosecuting these paths and isn't there or at least a fact issue as to whether that's true or not we know we will we believe that that's a can of an inference to be drawn from the underlying facts and we were sore at that the material facts in that analysis are that the university considered its own interest in these patents and determined that it was in the university's best financial interest for these patents to be assigned to an entrepreneurial need and that even after the assignment that the professors would be continuing to act for the university and with and from and have on it well with respect it that point if there's and potentially a separate question of whether metabolite has liability for the at what for the acts of the professors after that point but we believe that the operative in whether separate and apart whether metabolite has liability whether the professors were acting within the scope of their employment and because the policy does say that the professors need to pursuant to the university employment continue to participate in the commercialization there at least a fact issue as to that don't you have to concede that is the least a fact issue as to whether they were acting for metabolite or i think for the university and there well that there may there there is an issue of fact to be what that our position is that we don't actually know whether the district court was applying a summary judgment standard here or a healthy one standard but it was proper for this to be considered under twelve being one challenge to the court subject matter jurisdiction and if the court found that there were genuine factual disputes than it should have made the factual findings in order to resolve those disputes we can't i mean he was trying to run you cannot make those findings but we are submission is that the on the on the undisputed facts in this record there are disagreements about which facts are relevant so it isn't possible that what the district where we say i'm denying summary judgment i think there are fact issues here which are going to have to be resolved in the course of the proceeding and i'm not it was proper to convey to convert it to a process where the court could look beyond the pleadings and take discovery and consider the facts but on a challenge to the court subject matter jurisdiction which is what the c j r notice provision is it's a jurisdictional prerequisite to the suit the court was required to treat it as a trial of the one motion and be the fact finder to meet to make the findings of fact if there were disputed facts to essentially satisfy the self that there is jurisdiction for the case and he didn't write exactly  didn't like i can we will for you well our our belief would be that the court can look at the facts that are in this record and determine that there are what the relevant facts are which in our view  relevant facts relate to what the university policy provides and the university is stating its own interest in the patent the professors being employed and required by their employment to do scientific and creative work that looking at the facts that we would assert are the material facts that on those facts the court can decide as as a matter of law as it does in as courts of appeals do in other immunity contexts where there their relationship between the scope of employment issue and the merits well we don't believe that they're intertwined because we the fact is that there's no dispute that the invention was fully described in disclosed by february derivation allegedly occurred where all communications that would support derivation occurred were either side's a legit conception occurred all of these things on which the the theft of inventor should claims hinge all of those events occurred before requires proof of conception and derivation there are no claims for failure to disclose are fraudulent concealment because there's no duty to disclose any of these patents to dr reseller if he's not in fact the true and sole inventor so the conduct at issue the arrangement nobody's saying that they stole that my then broke into the offices and got the information everybody agrees that it was given to them and terrell and so they rightfully received that there's no warrant full act alleged in receiving the that that was wrong but that was taking his invention and trying to license it separate from from any interest that dr not relevant to the case but what you're but what you're saying is that each side parts points to different facts that are to dispute as being pertinent as a matter of law correct you point to facts x the other side points to facts why you say out of the correct you have to look to x they say and of the correct well we have to look at why that's exactly correct your honor and that we believe that this court can make that determination as a matter of law it can look at the record and say these facts are relevant unjust enrichment are that they hinge on proof of in bennett ship that that that is the whole predicate for the state claim and so our position is that is the relevant conduct is the the derivation and  all of which would have had to happen before metabolite had any interest in it and we would also though submit that that the cho case speaks to the point that a professor acting pursuant to a university policy even aside in assigning an invention out to a private company in which he retains an ownership interest that as the court said that whatever those arrangements are those decisions belong to the university in the professor was acting as the university's agent when he arranged the business transactions so are the primary cases we would rely on that the professor can act as an agent of the university even if the professor is at the unit as at the university's determination pursuant to university policy assigning the invention to another company in which he even has a financial interest that's all pursuant to the policy and that those facts are relevant to determine that not only the inventor ship but also the subsequent business transactions the resulted in commercialization were all pursuant to thank you your owners please the court we submit that if this court focuses on the injury that is actually at issue in the state law claims that inquiry will resolve both the jurisdictional questions you've asked as well as the merits of the claim what took to what extent if any are you hurrying the wrongful conduct by al unstable place before the december ninety ninety two application that led to the one twenty six  i'm not sure that we are i mean the the there are there could be some individual acts that could come out in future discovery to the case that but i don't buy the the the wrongful conduct that we're alleging is the for the state law claim is the failure to disclose the filing prosecution of the patent application so that's that's the that's the kind that i've been i i'm i'm not aware of any wrongful conduct prior that i mean there dr allen may have had something in his head about doing something but i wouldn't that were not alleging that that's not the because the it would be the failure to disclose that the claim is the failure disclose the filing unprosecuted what so say was the the physical act here or conduct the you say forms the basis for your claim is the within the scope of their university employment from the from december and actually from earlier with respect to deciding to do that but i don't think that's necessary for even to for this court to get of let's say the last patent which is two thousand and three so if you see if you start with march frankly i think there's we should we should be able to meet our significance is that in terms of the the immunity issue that we're dealing with today if it's significant only in so far as there that the parties decide at that time that this patent application would be filed on behalf of metabolite the parties being dr allen and the university officials dr ala and mr left cough who was a needed to look earlier than the december one thousand nine hundred ninety two time period there is the evidence we haven't focused on that frankly in our argument because we don't even think you need to just need to start with the filing and prosecution just what you would say is that that was necessarily all pursuit that that meeting occurred pursuant to a disclosure of the policy we're not conceding about this or are you it sounds as if you're least in part that we don't need to prove anything before december ninety two or march ninety three in order to make out the tort but presumably you will try to prove something with respect to some conduct preceding december nine hundred ninety two that you will allege and assume is part and parcel of this entire sequence of the act and that of unlawful activity so i wondering whether the statement that it isn't necessary to is to prove anything before nine hundred ninety three really answers the question of whether there shouldn't be whether we shouldn't consider the  pre arch nine hundred ninety three conduct with respect to the question the new unity is in fact a trial you intend to predicate your case in part on pre one nine hundred ninety three activity well there's no question that to prove the merits of the cla of an invention of the patent related to an invention as the commercialization of the invention you know we're saying that or yeah in order to have a right to commercialize it we do have to prove that we invented it but that's a different baby than saying the in part that they were acting within the scope of their university employment when they received it from an i don't view suggesting that the receipt of the information was wrong or not and that suggesting that the receipt was wrongful i'm not that the receipt of the information is is not with respect to some of the question you had about the the scope in which some of that original activity occurred again in our brief we have focused on and basically tried to make it simple and focused it only on the the subsequent time period but that the district court did find in its in the hearing that that initial interaction between dr  strong they are at the scope of employment issues really intertwined with the merits why are we trying to decide these issues based on the sparse record this time when the whole theory of liability and what acts are wrongful and what acts will remains to be determined i don't think that i think that what the acts that are wrongful that need to be determined the elton's the specific allegations are are clear and you know they're clear but they seem to be suggesting that even after march of one nine hundred ninety three that somehow or other elements stable were still acting within the scope of their university employment why then why are we why should we try to decide these issues of scope of employment and in the pounce going coverage of the colorado statute until we know what the facts are there's been a trial in the vacuum and findings as to who did what that whom and when because i don't think you need to decide i think the trial judge already did and i think the trial judge recognized that all that stuff was not relevant to the trial judge all that stuff about some aspects of the policy or what interests the university had metabolite or didn't happen  hundred three you're saying that it's clear from the record that they were not acting within the scope of the employment after that point that is correct sir that that that the facts are but ok but what about between december of ninety nine two and march we have an affidavit and testimony from al that seems to suggest that he was acting within the scope of his employment in making the initial application so is there at least  was in effect that he believed he was doing it under a university policy i think that you can find as a matter of law looking at the policy and and knowing that  stake in the proceeds of the commercialization of the patent correct if if i could clarify that the interest was not unique to these patents the interest that the university had was simply that as a function of having assisted in informing and metabolite is an entrepreneurial venture in one thousand nine hundred eight and providing the services of colorado venture tel like now yes but i don't think that that by any stretch of the means by any stretch of imagination establishes any sort of university control over the filing and prosecution what judge matsch is didn't exactly bill the joint appendix with his findings and conclusions of law here what do you take it the judge matsch of their crime or purposes do you understand him to have said on the one hand that to have simply resolved that question conclusively by himself or to have said that i think that summary judgment a summary judgment type disposition is appropriate here i take him to have resolved the issue conclusive those actually made findings of fact as opposed to saying that there isn't enough here to distinguishing between summary judgment it was that he actually ruled as a matter of two will be one that there's rejecting the jurisdictional argument as opposed to doing this is a real fifty six type disposition  question of scope of employment is applying a lot of the facts and it's it's hard to tell what he was doing i mean is it isn't it possible that he was just saying well i think they're genuine issues as to this thing i don't see right now that there's man any proof that the colorado statute applies how do we know that he wasn't open to reconsidering that as the case progressed words to the really reach a final decision on this issue i've knowledge that the the hearing transcript is doesn't definitively say that and i think the only other way that we know that is by looking at what the by looking at the scheduling conferences and their the intent of  to the proceedings leading up to that time period and a judge maged did say that he recognized at one of the earlier conferences that you know the subset of law of colorado is i've got to deal with this first binding on him but it's it's not clear in the only the only decision we've been able to find with respect to that is there's the aspen orthopedics decision that was referenced in one of the furies there's a concurring we're bound to follow that and respect it and i think what you can get out of that is that there was sort of an it's not that doesn't explicitly say that it was kind of like in a fury analysis saying that you know when you consider the the cusp of whether top thirty one of the port done a conference and schedule your speaking so we haven't done anything else other than brief this issue then he says all right so give me a count of will get another schedule and pounce on the rest of the case and get on with this one eighty eight one ninety five to sixteen to seventeen and i think probably that the strongest evidence was one ninety five and two seven from houston to seventeen was submitted with a letter honor yes and it's on one twenty one beginning on line twenty one wouldn't we be better off if we found out what he thought he was doing i think gone so i guess that's the best i can say with respect to that setting which you can't do in summary judgment we're left somewhat it's about knowing whether he's which of those three he's he's done and you say the best evidence for us to look at to determine that he's done the third is page two seventeen well i'm sorry it's it's one ninety five ninety five and it's in the main appendix and and that particular line eighteen starts there all right you agree with the procedure this directed by the color of the courts does not trump the federal rules of civil procedure on the other hand it is in the sense substantive law of colorado with respect to at what point unity raised and applicable sort of like qualified immunity and civil rights one thousand eight getting out of it and i'm not what i'm getting out of it based on that in conjunction with the whole the the number of conferences and what happened is that he was going to decide this issue and we're going to look forward and that's we said he was he'd be done with it if he had granted summary judgment on that issue is supposed to told you one day you say that need not be much difference between those two except right right maybe important fact that you can make findings of fact in the form or not in the water right but i would but neither right that's correct but i think that both parties expected this to be done on that because in that nobody needs  fact to support the district court's jurisdiction if he was deciding it as a summary judgment motion and deferring the issue on genuine issues of fact he did he didn't say that well but which is he decided on summary judgment against you that is right that there's a possibility that it decided it against us in which case we our position here is that he decided it wrong as a matter of law on the facts of record third for the court to consider only the facts that follow the filing of the patent application would be essentially to ignore the americans i am a directive that there is no duty to disclose any patent application or patent to an allegedly unnamed inventor unless that inventor first proves that he is in fact the true inventor and dr allan while there is  said that conduct following the assignment of metabolite was on behalf of the university he did say in his declaration that a eleven seventy four my filing of the patent application in december one thousand nine hundred two that was the basis for all the patents  issue was on behalf of the university of colorado so in order for the court to affirm the district court's determination here it would have to essentially ignore all of the actual inventor should conduct it than the nature employment during the entire period inventor ship and out the time they filed the patent application and look only to conduct that came up later and we would submit that that would not be the correct application  that is it your view that the judge of the district court in his mind was making the definitive ruling on the immunity issue i believe so i believe that that there is an indication in the record that that he was and that he was supposed to because it was a jurisdictional challenge but i don't know because he called it a summary judgment motion and denied it as a summary judgment motion i really i would really be speculating and he didn't make findings of fact so that if he was ruling against us as a matter of law than he should have made findings of fact to support that terminations and if he was deferring the matter as involving genuine issues then we would submit that that was in the proper procedure on a trial be one challenge to his jurisdiction but so suppose that there had never been in this case everything had happened just as it is alleged to have happened they both side allegations of maher properly take the allegations in the complaint  e everything that happened just as alleged up until december of ninety two and then all activity with respect to these events stopped with there be any action in and according to some american cyan amid it all has to start with proof of mentorship because without proof of an event or ship there's no duty to disclose the applications there's no duty to name him on the patent applications all of the subsequent tort conduct it's simply it's if it doesn't exist as a duty and less there's been a better ship so so again i our submission would be that there is to look at the relevant operative facts of scope of employment would have to include a consideration of the inventor ship time period the disclosures to the university and the filing of the patent application and all of that conduct predates the assignment to metabolite and because it was on behalf of the university we believe