or stand in the law on this did you make any effort to correct the inventor ship prior to the time you filed for infringements no your honor but if you make any effort before the district court to correct your inventor shit during the course of the litigation no your honor because you have an invalid patent don't you know because we do not believe that there was sufficient clear  under an inventor ship theory is if there is in fact standing in this case right isn't standing the predicate is if there's no standing we don't even have the ability to review the one hundred two s decision what right there wasn't actually invalid the decision in this case there was simply a decision that there was a lack of standing because john hardy was a joint inventor and it does not hold john hardy's rights and dealing with us after issue as well a lack of standing so i didn't understand the district court to hold there was a lack of standing because i'm confused the jury found that mr hardy was a joint inventor so to the the district court held there was no standing it couldn't i guess what is what is your argument my argument is that there was standing because dr mullen locos the sole inventor that he assigned his rights to ownership notions pertaining to us versus a i and my misunderstanding the lower court's opinion because that was what i understood the basis of a lack of the court held that there was no standing based on two grounds one based on a based on hardie being a joint inventor and i not having those rights into us as having mullens rights and therefore mo assignment was invalid so are you telling me technically now we were to affirm the lack of standing that the patent wouldn't be invalid because there is no judgment in validating the patent there is currently no if inaccurate inventor ships were to result in a lack of financing in every case there could be no case that ever invalidated those patents under one and two last and yet we have such a case right so well i don't  case i mean what we're dealing with is a witness who repeatedly lied admitted that he repeatedly lied about his contribution to this invention and then comes into court without any documentary evidence to jury verdict stands on the theory that there is substantial evidence in the record and there's certainly a lot of evidence in the record about what these various so called inventors were doing back and forth  point mentioned by judge prager if in fact the jury verdict is sufficiently supported on the record is there anything that you know i think is a no your honor this case think that's pretty tough to do given the evidence before the trial judge to pick lee in a typical case i would say yes but in this case i would say no and the reason why is because this case cries out for corroborating evidence you have a an alleged joint inventor who repeatedly admits on the stand that he lied previously that he was not a joint venture twenty years later he comes back in and he says wait a second i am enjoying inventor because actually i did determine there is a serious risk of litigation inspired fabrication or exaggeration of the type of court talked about and sent technology if you look at the factors that typically guide the corroboration analysis they further exacerbate that concern the allegedly corroborating witnesses all had strong relationships with john hardy continued to publish with them due to overdose in fact there is a question of law your honor as to whether there was sufficient evidence to get to a jury uncorroborated and this court can review that if there's not substantial corroborating evidence then this court can reverse the jury on that and we had twenty years between the invention in this trial increasing the risk of admitted on the stand that their testimony was contradicted by the contemporary contemporaneous documentation that they signed so when one looks at the totality of the evidence in this case under the rule reason this court it's  should not permit an alleged joint venture to claim inventor ship twenty years after he had previously denied it in writing with such a limited corroborating evidence the evidence is extremely limited in addition there was a complete failure of proof that parties conclusion his inventor ship claim rested on his new story that he said that there was linkage between the employed gene and the disease in and as we know joint joint venture ship requires communication and collaboration it requires an open line of communication between the alleged two and inventors parties themselves testified that he did not recall ever discussing the marker data with dr mullins the marker data that would have showed linkage party did not recall ever telling long that there was linkage to the amyloid gene hardy did not ever recall calling on who actually did the sequencing testified that there were no conversations with hardy about the swedish families or anything else for that matter during that period because they simply could not get a hold of him so when it comes to join  vendor ship where you have to show collaboration and concerted effort some open line of communication during our interpreter proximity to the inventive efforts they have a complete failure of  allegation but dr moment was in florida three months before the swedish families even got on the radar so they did they did they go to the doctor won't go to florida three months ahead of time before he even knew that swe for sunshine but he was also working for the university of south florida on the same problem well i would like to discuss the preemption issue because the supreme court has repeatedly held  that the inventors right to his own inventions is one of the fundamental precepts of patent office and the district court here held that the florida regulation court effectively declares that the employee does not own the invention in the first instance in other words the florida regulation is interpreted by the district court is squarely in conflict with federal patent law as articulated by the supreme court so it is your position on that point that the florida regulation back to zillion years a patent ownership is exclusively the purview of state law not federal law so i don't i don't understand your argument you're right there aren't the ownership is a question of state law but what we're talking about is where does the ownership of the invention initially vast and the supreme court in this court matter what we're talking about is a state authorized by regulation to create a contract in fact with employees  the contract specifically says the regulations specifically says that the employee has to acknowledge the terms of the regulation in writing that wasn't done here that would make the case that would make this regulation consistent with federal law instead we have a regulation that automatically divest in an inventor of his an adventure and he never has any ownership of it and this court has never dealt with that issue your honor all of the other cases deal with for example a federal statute divesting an inventor of his invention which of course congress can change federal law or a foreign country doing the same thing and of course a foreign from law can do that within its territorial jurisdiction or a state law which transfers ownership of the patent after the fact that does not divest an inventor of his invention from the get go so that the inventor never owns the invention never has the right to practice the invention sense that if i can just support that jury trial and a lot of evidence that i'm sure you're going to drop out first you've got a winner but let me puncture that thought for a moment  this problem that i have this is circularity problem in this case you probably already recognize the let me see how you want to deal with the circularity problem is this in order for you to win on the question of the validity of the patent you have to stand on the jury verdict that there was a joint inventor ship that was in validly reflected in the application for the patent if bring a lawsuit on that and the trial judge couldn't have jurisdiction in order to hold a jury trial which resulted in a judgment or verdict in th judgment that they were just going to invent a ship problem so you can't reach the joint inventor ship jury verdict unless you can find some way to give the trial judge jurisdiction over an determine if they had jurisdiction yes there were two independent bases offered for why this court did not have jurisdiction due to lack of standing one was that mullen was not a and in fact there were outstanding rights which were not being represented before the court and therefore there was no standing there was an independent ground ending is a bit of a red herring in this case really when the trial direct all wrapped up in the standing it really isn't standing for the question whether it's a valid at this or that and to call it standing if you want to but i find the standing concept sort of at ri here one to discover new alzheimer's causing mutations in the family gene but the other tried to deprive the universities of rights and the judge decided to cut through that by saying let's determine there are lots of things we could determine much determine just does he have the ownership rights it needs to even begin this process and there were two independent grounds with all due respect to our trial judge i think that  the issue that's not the issue the issue is not only because the question is is there something to be own them what is there to be open i mean i think your honor i think even an invalid patent can be  serious line of cases that the trial judge was relying on now the court having jurisdiction to make that determination of whether it had jurisdiction and assuming it's affirmed it may well have precludes effect if there were any ever attempt expired if i may just briefly touch on the evidence we feel that the act taken in furtherance of the collaboration to deprive the universities of ownership actually corroborate the collaboration and communication on the inventor ship we know exactly what the what was supposed to happen what was supposed to happen is they were supposed to identify promising families they were going to do which is to twelve analysis this is all laid out and we have seen a proposal if the if the affected individuals all had the same amyloid gene they were to sequence x on sixteen and seventeen which is what in code the actual amyloid protein and that's exactly what happened here dr hardy brought into the lab these promising swedish families he had his technician mr holden do a g t twelve analysis he was given the results he looked at it he determined that in fact all of the affected individuals said the same copy of thirteen from the g t that was abundantly corroborated by mr holden's independent testimony who testified extensively on that and that he couldn't tell whether it was linked or not one thirty nine and that he was then sent the material to florida which was is very narrowly defined so they're if in fact the details of the swedish mutation were not discovered until after dr rowan was in florida then the fact that structure of the ultimate molecule in order to make a significant contribution to that conception and because otherwise you could never have joint inventors each individual inventor would have to be a sole inventor of the invention and here it's kind of like the situation you would not suggest that a roughneck who drills an oil well and has a gusher come out of it is the sole discoverer and owner to the exclusion of the people who told him where to dig the well and the people who told them where to dig the well in this case were hardy and marlin and certainly hardy and that was employee corroborated by the testimony of holden by the testimony of duff who said that mullen told her that they the fact that there was alzheimer's disease in the swedish family did not mean that it was a mutation in the amyloid gene that was exactly what dr hardy was trying to find out that's why they did the analysis when she twelve which is uniquely intended to determine whether it's to me hamil edgy and dr hardy got that analysis back and he was the kind of scientist who would look at that and by my experience scientist say all of the affected people have this mutation it seems to be being inherited the disease with this copy of the gene i conclude that there is a likely an embroidered mutation causing this disease and because i don't want to encourage them to own it i'm going to send it to  that's what you do so that is a contribution to the conception that's dr hardy telling you where to drill the well now did he know there was  there were two types of analyses that were done to determine where to drill the well dr harvey used his experience and judgment in the pattern in the g g twelve analysis dr mullen did a very sophisticated computer based analysis not any longer for an action commenced today the deceptive intention requirement has been eliminated but it does require concerted application by all parties it seems to me stage of the case where does that review and where does that does that move all the other issues where are we we we struggled with this issue where there are two independent basis for determining that there is no standing what should the court do and we did find it seems to be in the discretion of the state to do we did find one case where both were dealt with and i would urge the court to deal with both now because we don't want to be back in court some time later in case something happens to it's not a patent case but for the idea that there were two there were two arguments there for why there was no standing would we read something that wasn't  t yes yes of course what court was that that was from this court i guess i'm still confused help me you heard my question to opposing counsel  can the conclusion that there have to be joint venture ship results in no standing because if that were true i'm just finding it difficult to understand our prior one zero two s cases which decided invalidity less how could you ever validity if you're correct about that so i mean maybe there's no standing based on the ownership that the separate question but to the extent that this court who did there was no standing by virtue of the jury's determination that hardy ought to be a colored man or i'm struggling with that because that feels to me like a grounds for invalidation but not a grounds for a lack of the this may seem like a fine distinction but one sees it in the reported cases when you're dealing with standing you're not really talking about the defense the defense to that that the patent is invalid or something like that what you're saying is all i'm looking at is does this person who is coming here is the party plaintiff have the appropriate title and rights and are the appropriate people here in court to even get off the ground in this lawsuit and that's what the court decided court sided note there's another joint inventor here who's got rights doesn't control don't have the they don't have the right people here in this suit has to be dismissed at least for another day what might happen if they for example if which is why we urge the court to reach these issues and if the court didn't  much your honor mr libby talked about that hardy glanced at the data by i believe that there's linkage and so he told knowing where to drill the well told him where to  and that's where there's a complete failure for your honor even hardy was not able to test to testify that he ever told mullin where to drill a well he repeatedly said i don't recall ever saying that i don't sequence because they were moving the lab to florida and because so let me just poke out these worms and have you sequence them because the rest are coming but these are just randomly selected to move first there were many d n a samples moved to florida and the the research plan that was just that was written in january of one thousand nine hundred two just a couple months before this discovery was made  exact same samples from the swedish family to loans for sequencing yes your honor he did testify to that but what was never testified to was any communication to dr now have a witness who's coming and saying the exact opposite thing twenty years later and there is no evidence whatsoever in the record that he communicated any alleged conclusions to