him sorted out join them on appeal think that's what it means is that ok what are we supposed to do so let me try to sort it out judge allsup currently has a motion reconsiderations been sitting on it for several months if he denied the motion then the case in which he denied that move forward maybe year two years from now whoever is the losing party will appeal and this court will not have question in this case as well right so again i'm just asking for how i'm not taking sides here but i want you to tell us what judge proces reaching for and we're all concerned is can we go ahead twenty question so it's not in the briefing because it came up after the ruling but i'm i recommend you look at the lone star opinion on that when you do if you agree with me the question then as well you know walk us say have article thre the briefing the argument on fortress in the district court had been a fortress had a security interest in the past so and so if there was a default then forks would have under the documentation the right to  not exclusive right to sub license to practice it wasn't a normal life just one of these things for us really interest in the lone star case i think if you read all the details there that would not be sufficient to cause a lack of constitutional standing article three standing on the part of the patent owner so i think you can if you make the factual assumptions which apple asked you to make under lonestar there is still when certain temperatures exceeded and that seems to be in any way when we get to step two of the alice analysis again there's no evidence on the record that since i'm in this courtroom it will encourage pleasure in the panel and in january the patent office came out with guidance as to how they're going to handle these issues if this court is going to move down the road of taking electoral medical patents and applying for a one on one to them for tweaks and to sign that it's not because of course you've done before but you may want to consider the patent office within you know and i want to set out exactly what rights these entities actually had the time of judgment which we believe gives rise to an article three standing issue both then and at the time of writing ok we before you get into those details which certainly will be helpful let me here at the appellate level by simply joining no i don't believe that's possible your honor and i think here's what the problem here is one of article three standing that is an issue of it's not specific to patent war so the law of the regional circuit would gover the th circuit has explicitly held there the appropriate regional circuits were coming from and because they have explicitly held that rule twenty one cannot be used to swap in new point it's for the sake of securing a judicial determination on the merits when the original claim it's no longer have a stake in the outcome and this is being versus california teachers union eat ninety one th rd twelve o six it's a two thousand eight hundred case from the th circuit i apologize that this wasn't in the fall into two categories one they have a bunch of diversity jurisdiction cases that just stand for the proposition that where there was a party with standing but there were other parties that may not have had standing you can dismiss the non diverse parties that's of issue that's unique to diversity jurisdiction isn't a political here it's also not what they're trying to do and then they have some cases where the mentor case and that relates to just be used to be called prudential standing i understand that it's a but that was a question where you had an exclusive licensee that was present in the case at the time of judgment and the question was whether or not the patent owners should have been doing the problem that we have here and that was one start to by the way lone star was not an article three case where they had an they had an exclusive licensee it was bringing suit and the question was could they proceed in their own name and that licensee had exclusionary rights that is the key the jurisprudence the supreme court so there is still i think discovery outstanding that would address that issue it is possible that it well let me be i mean withdraw that it would cure the defect at the time of judgment because the judgment that was defective would have been withdrawn it would not  me because it sounds like the type of technical defect that even the th circuit allows to be care so you're out of the th circuit has treated a lack of article three standing at the time of judgment differently from what would be referred to as a technical  outcome in the same appeal of into us and wasting our time to get on the one on one issue so you want to i don't i frankly i don't understand why you are switched on the jurisdictional side seems like they are the ones that should be to lay this ruling on what i want you should  is present and we don't want to you sure because i think these to i thought these cases from the group that we knew about that these two cases were even unique position because of the timing of the filing and the timing  time of judgment yes as to the time of filing no there are additional cases pending before a judge also in the northern district of california filed it more or less exactly the same time that have the same as your truck talking about ok so let's move to this fortress so that's the other question that arises right you did and that's at the time of filing you phrase that with judge al so he's already rejected your argument in that  regard why are we sending it back to him so he can reject it and then we get to review his rejection of he'll so we get this case same case that two years from now and it's on the issue of whether or not his findings were correct for st what i do think that ultimately needs to happen rather if the fact of the matter is he is he has issued a ruling on that he granted leave for us to file a motion for  reconsideration on that particular issue there are credibility issues involved in that motion they have a witness declaration that they've submitted that we're attacking the credibility of so there are there are a number of documents not present here that he's considering that were submitted in conjunction with that litigated with regard to fortress by judge alsop in this case no your honor its priests because there are all these different parties floating around and affected by the timing of everything so it's the same thing yes you are it will be the same issue unless you have further without considering whether that jointer was proper and that has nothing to do with the situation here because you don't want us a didn't have exclusionary rights at the time of judgement they had a bare license to sue but the right to practice the patent  we don't assert prejudice from that however there would be prejudice and from deciding the issue at the time of filing now because the record before this court is weak and if this goes into the complexities you you mentioned your honor there are a number of documents because of the procedural posture and that is why we are asking for revenge which is exactly what the supreme court in newman agreed that suggested you wait you see you would be prejudiced cause not on the outcome of this case right you're for would submit that there is inherent prejudice in if it judgment is issued in a case where there's no subject matter jurisdiction that's inherently problematic and so we should just do what the supreme court said in newman green if there's a factual dispute as to standing which is to remain at that intent to mean that we look at the facts in this case right we don't look at additional evidence developed in these other cases correct i mean it doesn't seem like this fortress issue has been fully developed in this case right it's developed in another case it's been partially developed in the record here because we were able to submit some of the relevant documents and from those documents there's enough evidence in the record to see that there was a contract that that contract did have a conveyance they could have been triggered to fortress and that if that conve were triggered fortressed would have a unfettered right to license rd parties to these the patent suit on any terms and you think that to the defeats the jurisdiction at the time of filing actually we think that into the luminary case what more facts do we need to was in fact credible we've challenge that we've asked for an evidentiary hearing before the district court and we submit that that would be a that would be exactly what would need to be done in this case to resolve the issue is what your prejudice argument i take it if i understand it and i'm not sure i s that if we take yours direction on the grounds that there that we can cure whatever needs to be cured going you know last seventeen motions below in each of the there are four cases other than this one that are alive there is one other one that's we believe you know a lot was attempting to dismiss the case before it got state and then there is this case so that six and you're telling us that the issue of fort ses the exact same thing it's not temporarily different because of the time the filing of the correct is that are the jurisdictional facts different as developed in these different cases you know so the district court coordinated the proceedings among all these cases so this case is all the facts that are developed in those cases are in this case to know your honor if you well that's what i was asking i mean in terms of prejudice if we decide based on the specific  us into the district court the potential for this issue two weeks slopes of the facts the record facts are different the record yes your honor is different i see that my time has elapsed so i apologize for not getting to the merits or if there's any questions you have on that i would be happy to address them and yes there are lots of questions on it but i don't know whether we're going there or what we're going to do now that i'm sure you're free to you know ask questions that we have jurisdiction to do that unless we have decided we have jurisdiction to decide its merits i'm not here to do that me through this let me hide let me give you a hypothetical after reading this i went online and asked amazon if they could sell me this pro doesn't tell us what it looks like now if you think it looks like i don't know there's any number of different types of circuitry that can be used any circuitry that could conceivably be used to charge a battery would fall within the scope of that and could be an alternator it could be about a recharger of temperature of said batter and what not in the temperatures i'm not an engineer you need to help me what would i see coming out of the how is on box that looks like a temperatures and what is that once is that a little guy with a computer that's going to come out and what is that device so it's according to this patent it's any electronic element they can perform the basic idea restate it here so it's some piece of electronics we don't know what were some software running on some electronics which we don't know the nature of either it's some kind of an apparatus it's probably in a little metal container some kind of we're  software running on some kind of generic hardware yeah ok because they let me ask you this question what is abstract about what came out of that box which abstract about the clean your honor is th chain and it's just a microwave oven reduced to be subject to the same kind of analysis that you are arguing for in the case here but what if we can't look at what's in the plane at issue we have to look at some sort of our love all notion of what might possibly be represented by that clay exactly around the standing of new way and an unconventional set of components those were patent but the supreme court said that there was a claim that was directed to the use of a little magnetism however developed to transmit information at a distance that plane was on patentable so if your microwave need help to understand why we're going whole boil there because that you're ok so your honor we did and i regret any confusion we use that is a shorthand for what the claims were directed to the district court's nine at line twenty four what you know what cleaners are sweeping abstract swats of possible methods appendix ten at a line ten you know a lot makes attempts to identify a concept and its claimed invention line eleven you know up in pairs it's claimed that so the actual purported to be an invention interceded in the claims and that's that's buttressed by the fact that the district court went through the claim set it out and talked about the claims in the claimed invention repeatedly and i think the reason the district court where talked about the patent as a whole because it involves an abstract concept st to the argument and when and so at the time you filed your complaint nobody racist at some point apparently it became an issue yes and it was it specifically raised to the judge also in this case no not in this decision here assuming we can get over the you know a lot of two thousand and seventeen issue which i think is different i don't know why doubt it we didn't address it because nobody ever race it properly why that would online judge also in any of those other