very narrow issues first whether g a o make a laterally attack the judgment entered against it lo and secondly whether that judgment is void or any arguable basis or judicial power to  let me turn to the first issue first rule sixty before applies to a very narrow set of circumstances it requires not a mere jurisdictional error but it does apply when the district court enters relief that in whole or in part is beyond the power of that court to enter the judgment if in that case the judgment is subject to collateral attack as this court recognized in christopher village and as the seventh circuit recognized in is whether gio by lacking an appeal of those cases is waived its rights the suggestion and christopher village and united student they versus espinosa is if there was no power to enter the judgement in the earlier cases then there may be a collateral attack even if there's a failure to appeal there was a failure to appeal in christopher a village and it did not stop this court from considering the collateral attack on the judgment it is a very narrow set of circumstances your honor i will admit and there are many cases out there in which collateral attack is not permitted because the argument is for a mere jurisdictional error but this is not one of those cases on what basis do you contend that the prior judg was just going to turn to that your honor there are three reasons why we've intended the prior jurisdiction the prior judgment is void first of all g a o has a party in this case which was not accused of any wrongdoing and is not legally responsible for mr wilson's wrongdoing therefore the question is whether the judgment below against gio who has exclusive licensee property rights in these patents whether that judgment could taint the patents themselves as opposed to being a personal judgment that would merely refuse to assist mr nelson in foresman of those you suggesting that it any time that there is a patent maybe tainted a son and force of all that that judgment could be avoided simply by entering into a license agreement well this license agreement predated the judgment and i'm not commenting on that but i would suggest to the co that there are three categories of an equitable conduct that may cause different results there is the classic conduct in which the enactment conduct procures the claims there is also cases in which an equitable conduct may occur at the patent office but is immaterial to the procurement of the claims and there is an equitable conduct that may occur and say litigation is outside the patent office now this court has commented on the extent of the district court's judicial power in several cases and epics versus quick turn this court considered the third or litigation misconduct set of circumstances and in fact a district judge and have to have entered in order holding the patent unenforceable in legitimate charitable foundation mr nelson didn't create it but then he put his patents into that foundation and there's although that argument may be low res later there's no basis in this record for guess if there's any underpinning for in our case law except for apt acts which deals with kind of an unclean hands them but your theory would require that we say what that will ice and see is not you can't  right but you and you know you just said that you're not asking us to apply there are sense what i'm saying is that the same distinction was made in the haptics in apteryx this court said page thirteen seventy seven quote no case law provides a basis for nullifying property rights when such property rights did not themselves accrue through misconduct that's been the law since before these decisions were well then if that's the case why didn't you isn't the appropriate way to proceed in that we card is to make that argument either before the district court judge or an appeal here not to a sixty p motion but on the merits determination well you simply because you're surely could have raised those are we certainly would have raised those arguments in the district court but that goes back to the earlier question under espinosa as to whether the court in entering the judgment against you know as well as against mr knowles and we are not here suggesting we're not representing mr nelson he's not part of this appeal so we're not here arguing that the district court lacked an arguable basis to refuse to aid him as a personal matter but when it entered the judgment against gio as well it exceeded its judicial power now under espinosa under christopher village and under indoor cultivation that is also from a matter of traditional me perhaps a matter that should have been addressed initially it is a matter that is subject to collateral attack because the judgment is simply boy i would suggest  claims that as an issue this court has not faced that's a matter of first impression here and i would suggest to your honor's that you apply the ethics test to that and hold that there is no basis in the supreme court precedent or in the president of this court for arguments you're making would have been available during the time of the appeal tests rightly oh and is there any in your view is there any timeframe to be considered in sixty eight what if we didn't the clock ahead five years and we're here five years from now well we're only in judgment the time frame here is only three years there are longer time frames in the sixty before cases cited in our briefs so i don't think that but  you know the margolies versus john switches a seventh circuit case seven eighty eight fed second ten sixty nine and ten seventy three footnote six says the reasonable time criterion of judgment under sixty must be something that could not have been used to obtain a reversal by means of a direct appeal and haven't you already acknowledged that you could have used the same arguments here for purposes of to appeal the bill does say that but it doesn't apply that to the circumstances where the judgment was beyond the court's power if you contrast that with indoor cultivation and to which are also seven circuit decisions in end or cultivation for instance the court said that the judgment void per se it's so that the point is that if you are in the narrow circumstance where the court be exceeded its power the court cannot create power by consent so sixty b has to operate as a safety valve under those circumstances to permit a judgment that was not just arguably beyond the court's power but there was no arguable basis for the judgment and frequently those circumstances may arise such as they do in this case where the judgment is not wholly beyond the judicial power of the court on its face that there are aspects of the judgement such as the judgement here against geo which are beyond the power well arguably you might have a different result on other aspects of the judge is i think a critical one your honor because if you have conduct in the patent office such as the failure to pay large a credit the correct maintenance fees and the improper payment of small entity maintenance fees which is the largest part of  conduct effects these patents the only form of an equitable conduct that affects all of them that's now been cured that is a circumstance where the patents have otherwise completely valid claims the maintenance fee issue occurred after they were issued it ha patents all concern compact fluorescent light bulbs the litigation against motorola had to do with other types of patent claims mr nelson had motorola doesn't even make use our cell compact fluorescent light bulbs in the court also fine litigation misconduct seeking relief under rule sixty four which as the court know requires that the underlying district court judgment void there is no basis in this case for relief under that particular succeed but i'd like to focus on three this morning first of all you know those rule sixty before motion while they've dressed it up with constitutional arguments about subject matter jurisdiction and separation of powers and so on is really an attack it collateral attack not merely on the underlying judgement in this case but on the outcome of the earlier so what they're doing today is trying to collaterally attack those outcomes secondly there are procedural flaws several procedural flaws that are fatal impediments to their appeal and then third they've acknowledged gio acknowledges that mr nielsen no longer has any ability to enforce these patents n g o s his restricted licensee has no standing by itself to enforce them so taking first the issue of the collateral attack on the underlying judgments the os from sylvania district court found that the patents were enforceable found several different species in many different instances of an equitable conduct g o had direct review of that outcome to this court this court affirmed the decision of the district court they then filed the petition for rehearing on b on appeal they appealed again to this court and the court in its decision specifically pointed out that its arguments to try to overturn the exceptional case finding were an impermissible attempt to collaterally attack the underlying  equitable conduct then in this case they did not appeal the the judgment but did appeal the exceptional case finding in the attorney's fees award we pointed out yet police pointed out in our brief in that case that again they were trying to read argue the substance of the an equitable conduct issues and this court affirmed without decision without opinion and here we are now today the third occasion on restricted for exceptional cases where there is absolutely no arguable basis for saying that the lower court had jurisdiction in this case that's very clearly not the case there is such a long history of litigation and opportunity for a view that it simply can't be set that this case could possibly fit into that that book that parameter but in any event that the procedural impediments that they have are that they never made any of these constitutional or subject matter jurisdiction arguments at all in in any prior proceeding the give up those arguments it did not seek director view the decisions of the seven circuit teach that you can't use rule sixty as a substitute for a direct appeal they had their opportunity and they decided not to take it and then in addition they waited judgment in this case entered in march of two thousand and eight it waited until november of two thousand and nine before they filed them the sixty four motion there's no explanation no reason for that and that unreasonable delay they've acknowledged today that these are all grounds that could have been asserted they didn't use them ok well i didn't stop they didn't stop in the us from case they haven't stopped in this case i think that they're trying to reap argue the same issues in different well what about after i mean i guess you're right that to the extent that that those arguments to the extent they're infects the property and so it just makes no sense for a licensee to say well we were really an innocent bystander of course contend that they and has a different remedy and the global conflict is different from unclean hands and i think there is a sense teaches that and in this case these patents were held on enforceable for an equitable conduct they were not held enforceable in this case for litigation it's kind of litigation was kind of was found in this case but not but that's not the basis for the judgment is this is inequitable conduct and so i don't think that the just doesn't help them because these patents run in forcible because of an equitable copy there's also the issue of standing only nielsen is the owner of these patents the complaint their complaint says he's that nielsen patton's the the license agreement restricts the rights the g a o has it's specifically says the g a o does not have the right to make or sell or market products under the license agreement that's a critical central aspect of exercising patent rights but he doesn't have it nielsen according to the complaint negotiates license agreements on behalf of g nielsen gets twenty five percent of their their well to us nielsen has a right to terminate deal has no right to assign so clearly under the presidents of this court the pro pet case and and and others gio is not a party that holds all substantial rights in these patents it has no ability to sue and to enforce these patents by itself the only way it could do so possibly conceivably is with nielsen as a complaint and yet they admit in their reply brief they specifically say nielsen is barred from enforcing these patterns so there's no there is no legal manner there's no procedural way in which they could possibly have standing to enforce these that  respect to their litigation against us and in g o which was filed more than seven years ago and so this we contend that this appeal cannot succeed and we respectfully request of the court affirmed the district court's denial of the r make three brief points then in a brief filed on aug sixteenth two thousand and ten the f l lees this was their sanctions situation said on page two quote although gio is correct that a rule sixty before motion may be used to make a jurisdiction challenge in the absence of an appeal geos argument fails because geo lacks and reasonable basis for claiming that the district court lecture is stiction in this case that's an admission that collateral attacks are possible and that statement is correct turning to act in the district that this court did make a distinction between different types of an acquittal conduct in that case because it reversed the the district court it's too broad a judgement in that case and finally let me turn to standing on geo's b have to enforce this bet without mr nelson this is a situation where the i don't think that issue is before this court that is an issue to be determined later if this court vacates the judgment that was entered against you and as i understand the rules for when an exclusive licensee has a patent he capable of bringing an infringement claim g o if it lacks those rights today may acquire them if the judgment is vacated and assert a proper infringement claim at that time and that argument would be won for the district court when those arguments are made but there that is not a basis on which this appeal should be denied does not moot this appeal because these patents have life infringement continues and geo is capable of acquiring whatever rights it may need to proceed if this court agrees with our pm that's your view of what the test is for standing that you have the potential to acquire the right now which we do not admit is is insufficient it could acquire additional rights necessary to proceed from a party that has been adjudicated to have committed an equitable that mr nielsen could not talking about a claim afterwards if this court vacates the judgment against g o g zero standing to bring the sixty before motion is not mooted by whether or not it could proceed in litigation if this court grants its motion that's my narrow