thank your honor good morning may it please the court the district court wrongly concluded that the clues of license agreement between university of south florida and its research foundation failed to grant any right to the nine seven patent to the foundation at the time the complaint was filed and making the spawning the district court they'll take consider clear evidence as well as the intent of the parties person the district court can counsel before you move in to the details merits can you start the standard of review what is the precise standard of review that applies under these circumstances is this rule twelve is a summary judgment is this after a bench noble question of why there were no factual findings that lead to the jurisdictional determination by the court when you say there's no factual findings is is it not the case that the questions about the testimony of the thirty six witnesses or absence of the nine hundred and ninety seven document in evidence are those not fact findings or are there no facts findings made at this stage if i think they're fact findings what should the standard of how does this work well i don't think that there were factual findings that the court looked at the court was evaluating whether or not the university itself or the research foundation had it at least with respect to this issue whether it had any rights agreement was executed that would be looking at the evidence and then i guess that that would be you know that self a factual issue but i don't think we're disputing about what the facts are it's application with facts to determine whether or not there was that the district court had jurisdiction because there were rights that the research foundation had to be able to have standing before the court under article three well didn't the district court say that there is no evidence that  standard what is the standard that the district court should apply is it are we looking for clear air and it's factual finding or it was it supposed to weigh the facts in your favor how does this work that's why these questions are important  do you get the benefit of that same procedure under rule twelve am i supposed to look at the deposition testimony and way it in your favor or not under rule twelve i think maybe not but i want to know what your answer is no i mean if we're looking at it under rule twelve then what the court needs to look at is the allegations in the complaint similar to what we have in the lone star case where the allegation in the in the complaint specific lee was that  and this is the the allegations in the complaint that they were the owner of a court ultimately found as a matter of the wall that they were not the owner and this is where the district court was incorrect because it failed to consider and take into account  certain evidence that was before the court that contradicted this determination and definitely showed that the south florida research foundation had lights in the nine hundred and thirty seven pad at the time the complaint was filed in this  and then as well in two thousand and fourteen a sub license agreement with the foundation granted rights to a rd party company i p x medical and also acknowledged that the foundation had an exclusive right and thirty seven patent in two thousand and fourteen all of which documentary evidence demonstrates that the foundation had rights had a right in the nine hundred and thirty seven patent at the time of the complaint and the courts conclusion as a matter of law they didn't is incorrect the district court also failed to credit the testimony of the research foundation's corporate designee this make that that testified with respect to the exclusive license agreement that was that issue and the court found that the exclusive license agreement with it which expressly granted an exclusive license to the foundation from the university of south florida and the court found that there address that is it page eight hundred and thirty five how do you respond to that specifically i mean she said you know it's my understanding that it was executed before the filing date and the court did say that you know that was problematic that she was saying it was my understanding how do you respond to that i didn't see for the deposition and she testified that she in this is also on appendix a nine hundred and forty seven dollars that she had reviewed files related to that issue she also spoke to the general counsel at the university was also for the foundation and she also spoke to staff about the documents that she reviewed so whether she had personal knowledge she was testifying as a vice president of the corporation specifically designated to testify about these issues and was prepared and did prepare to was by a certificate of correction it's not st of all it's not before this this court on appeal this was not an issue that was before the record below and as they try to infer in their briefs they try to infer that this was something new but the certificate of correction was available before they filed their motion for summary judgment and they they elected not to raise it so this is not an issue that should be before this court because they have elected not to to assert it and it's therefore waive i think that the ultimate issue in terms of whether or not the exclusive license grants you know what it grants to the foundation is one of the issues there's not any indication that the government would that does not mention the patent the foundation refuses to produce the invention disclosure form it claims to next the license to the patent the license purports to be effective retroactive y to july th ninety seven but the foundation offered no evidence of when the license was executed well waiting like didn't the thirty six witness express lee testify that the license was executed in advance of the  suit no your honor i don't believe that she did she testified as a thirty six witness and we know that as a thirty six witness she's not required to all knowledge she testified that it was her understanding that it was that it was executed before and she then said she did not know when it was executed but maybe sometime after two thousand and fourteen and it was executed she did not know when it was executed correct so i think to discount counsel don't interrupt me she did not know when it was executed but she did know it was executed she said she believed it was executed prior to the lawsuit being filed so isn't it possible you don't know a precise date but you know it's for such and such a date yes that's absolutely possible your honor i don't believe that the witness testified with personal knowledge that she was why did she need to testify with personal knowledge of thirty six years into personal knowledge testimony it is the knowledge of the companies through a particular designated representative so her testimony is that the company's position is that it's collective knowledge is that it was executed prior to the suit why isn't that evidence that is relevant to this decision well it may be relevant your honor i think that the what i would focus on is that here the foundation has the burden of proof on the issues  and for them to come forward at this and we were at the summary judgment stage we filed a motion for summary judgment on this issue three years into the case and for them to come forward in response to summary judgment not with the documentation not with an affidavit from a witness swearing under oath under personal knowledge of the date issue but to focus on a thirty six dollars deposition testimony that that we took that would not be admissible at trial under the federal civil procedure to a three i fair for the court to consider evidence that is submitted that is not this is not is not directly on personal knowledge your i think given the vast number of issues and  i don't have case law that would require a witness to come forward on personal knowledge short of fifty six dollars of the rules of civil procedure which requires that affidavits be presented or other evidence that this isn't admissible form but i do think the court could consider  facts alleged in the complaint in favor of the complainant your honor i heard the questioning to my friend as well on that point i think when when we're at the summer and i don't have other than the supreme court's decision to move on versus defenders of wildlife five hundred and four us five hundred and fifty five there they walk through the different stages where you can make findings and they talk about the pleading stage and then they talk about the summary judgment end and i have it right in front of me and i'll read it to you at the pleading stage general factual allegations of injury resulting from the defendant's conduct may suffice for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim i mean it doesn't really matter that you filed a summary judgment motion because that's not standard under which this district court decided the case instead he decided to enter of all twelve motion which is a pleading stage proceeding so how do i not apply that particular rule to this case given what the district court chose to do and i think the answer to that your honor is that this is not a twelve motion it was not a rule twelve motion it was a rule fifty six motion for summary judgment that the court then decided to address in the context of rule twelve h three which of course allows the court to dismiss a case where it lacks personal jurisdiction in the subject matter  or stand that you made a rule fifty six dollars motion but we're not reviewing a rule fifty six dollars decision we are reviewing a rule twelve h decision so we have to apply whatever standard applies to rule twelve  not rule fifty six dollars we we don't we don't apply the standard for what you wish he had done we apply just or do what he actually i understand your honor and respectfully what i what i was trying to say was that the district court in deciding it under rule twelve h three he considered all the evidence the parties had submitted in connection with the rule fifty six briefing i don't believe here the court can give any deference to the power in the complaint where the allegations a rule fifty six motion even though the court sort of converted that to rule twelve h three i don't believe you can give any weight to the allegations of the complaint now if you could and if you had to in your honour's decision under rule twelve then you would not have no your honor i think that the foundation clearly believes and has argued that they are in effect a virtual ass in the at this court is used that term by the by virtue of the fact that they believe they received all substantial rights under the pat i'm supposed to read it in their favor well your honor i don't think it should be read that way and that's based on a frankly it's based on the testimony of their own thirty six designee who said that that that that exact language was incorrect and false and that they were not the owner of the patent by way of an assignment instead they had an exclusive license that's that witness did not testify at that deposition about all substantial rights so based on the testimony of their own witness i don't think it can be read that way and i think it's appropriate to look to the actual allegations that they're attempting to make in the motion to amend it was submitted where they attempted to change those allegations to say that they were in fact an exclusive three standing by virtue of a month pro tunc agreement that purports to be retroactive to an earlier date before the complaint was filed when the man is is unique in the sense that it in some ways does that but if you if you reach women  agreement that the court found had been modified by reformation under minnesota state law and they determined that because there was the earlier agreement that had had it was incorrect based on the mutual the state of the parties that therefore that that later agreement that was entered into by the parties to reflect the earlier agreement was not in fact a violation of that no pro tunc rule for article three standing here we don't have those facts your honor we don't st of all we don't have any evidence of a reformation and that's in part probably because this issue was not raised below by by the foundation we don't have anything showing that there was a mutual mistake of the parties and they point to the revenue allocation agreement suggesting that was earlier agreement that somehow the license then reformed and they don't exactly make the argument completely they sort of suggest that there's a reformation here but the revenue allocation agreement related to a different thing vention disclosure that was dated april th ninety seven the license references an invention disclosure dated july nine hundred and ninety seven the terms of the license are also substantially different from the terms of that revenue allocation agreement and if in fact the revenue allocation agreement was all the foundation needed then you wouldn't have two subsequent assignments one in one thousand nine hundred and eighty and one in two thousand to both of which purport to  it and assign different rights than was was purportedly conveyed through that revenue allocation agreement council what do we do if we conclude that the district court made fact findings relevant to his jurisdiction assessment how do we review those if the district court ma it makes a note about factual findings that are in dispute being reviewed for clear air i actually agree with my friend i don't believe there are necessarily facts that were distributed by the parties in the motions that were presented to the district court i think  what the court actually did was apply those undisputed facts to the law and i'll tell you i just i don't know what to do with the thirty six testimony because she testified as a thirty six witness that the document was executed prior to the suit and so i just don't know what to do with that if i credit that i have reverse why do i not credit that and just at this stage in the process well you comment about the testimony is it wasn't a matter of personal knowledge and that that can't be right because a thirty six dollars to tone it doesn't have to testify as to personal knowledge there testifying as to corporate knowledge  scope of the license we have an invention disclosure form being referenced part part of your problem with that and i look i agree that there is an issue i agree that when someone reserves for themselves both the right to sue and research rights it creates a potential standing problem for the exclusive licensee i i'm with you got me already so you know but the problem is what what that really just allows for is a vacating remand to cure that defect right yes ron i agree with you if the court were to find on the article three times to two tional standing issues that the court had both of those wrong but agreed that the court got the all substantial right statutory standing issue correct when he said both of those wrong i don't i don't know what you mean by both of them are there only one constitutional standing only one issue right what are both what you mean by both yes your honor so there were two issues presented that the district court found they lacked article three standing on the st forty one of them was when we talked about with the date the nd issue is the license in question does not refer to the nine hundred and thirty seven patent instead the license refers to and the patent however if you look closely they are quoting the district court's opinion at appendix page thirty four which was the district court quoting their own groups so that's not obviously evidence what the witness actually testified about was not the license that's an issue she was testifying about the two thousand and two assignment which which undoubtedly does reference the nine hundred and thirty seven pass because  application number the problem is the disclosure form referenced in that document is undated and bears a different title than the one that is actually referred to in the license and under the counsel but doesn't use the same u number it uses a similar number and there is evidence in the thirty six dollars purporting to explain the difference in the number which is the reference to p r c i do agree with that but there are four different documents that arguably refer to four different disclosure forms and what is critical here is that under the porch decision in speedplay where there was a question about about this issue the court said to support an assertion that one has in fact exclusive rights under a under license the licensee must produce a written instrument documenting the transfer of proprietary rights in the patent that that has not happened here they have a license that refers to a disclosure form they refuse to produce the disclosure form because they say it's privileged and then they want to supposedly point to deposition testimony where the witness discloses what that disclosure form is about that supposed to be privileged that's using the privilege is a sword and shield that's correct answer correct and as as counsel did acknowledge she did testify in her thirty secs six deposition that each disclosure that the university receives receives a unique number the date in this application file is opened and c is added when utility is filed so we've got the exclusive weismann's as well as the revenue allocation agreement that also specifically identify that rights are being conveyed in that different agreement how what is your response to that at the time that that testimony was being taken that was the exhibit that was being discussed but the testimony isn't specific or limited to that agreement  testimony is that that reference number corresponds to the nine hundred and thirty seven patent and then the other testimony where she talks and confirms that each disclosure is assigned a unique reference number makes it clear that if you have that number that number has to be tied to what ultimately became the nine hundred and thirty seven patent as corroborated by the revenue allocation agreement as well as the two licenses that also specifically tie that disclosure that there are not all substantial rights that reside within the university of south florida research foundation that this this decision should be vacated back four jointer of the university of south florida i think