mr parker whenever you're ready simply with i b m she was a graduate student at columbia university now when she executed the employment agreements she had can surely modified the scope of the agreement when she wrote columbia university on the second page of the agreement deposition that she did have a prior agreement an arrangement with with columbia that did not necessarily give her the right unfettered right to assign any of the work that she had conceived of a come up with while a grad student o gifted you're on it and that's why she wrote and there was two things two aspects of her testimony which she said she had a prior agreement that she was a graduate student and she also gave an example of where there was a situation unrelated with respect to  she say in an eleven a lesson sixty four that she had no developments in which she had any right title or interest which were previously made or conceived soley or the invention was not in existence that she had thought about the problem but it was not it at all conceived of or developed at that point in time and so she wrote the words non extreme and that now with respect to i know when i b m is brief they've made comments to the effect where there's an e mail exchange where she would say well there was a famous defect where it was not part of my dissertation if you want and that is true it was not part of her dissertation or future station but it was within the confines of her responsibilities or her actions as a graduate student and in fact the words of columbia university as you wrote in the agreement was an intent to modify the scope of the agreement and that has to be construed and as construed as our position we respectfully submit that what she was intending to exclude was any work that she had developed a came up with while a grad student in the capacity of being a grad student at columbia university i missed in the record where  that she came up with that were part of her task or proud of her in her capacity as a graduate student it was the fact that she didn't have a strict obligation not to assign that necessarily mean that she could assign and that you're on a very right title interest so on and so forth and she wrote in there  right in this particular case my reading of this provision was that the p u why the invention of claim invention is in dispute at this time was not even existence so at this point in time she has so if it was not in existence how could it be covered by the columbia university and the any relationship she had to columbia or is it just against the it's a question of her relationship with the university that work that you're doing that you just can't run off and just sign it and give it away to third interest i mean what you're telling us is it's either columbia or i b m no one's saying that actually all three i mean because columbia had at least the ability to review to consider now columbia university there's nothing came about anything academic university with respect to this invention over time so it's not a question of whether it was coming the person who wanted it or whether i b m don't it's a question of she had a situation that she was involved in i mean of the fences with respect to their ownership for japan's lack of ownership and silly to claim and that the lower court and we asserted that the statue of limitations would bar those claims but the low court said well counter claim rights to the same transaction doesn't it it does not to the extent the defense is not age asserting affirmative relief and it's simply looking to mitigate  adverse recovery then the statue limitations would not be a political under those circumstances but here we would argue we would submit to this court that i b m s claim for the the there procured moment to bring an action against i b m it had no choice it had to bring it had to resolve the ownership dispute with i b m because it hadn't a pending action against other defendants who raised in claims and said that look package you don't own the patents i b m does we contacted i b m they were not at all responsive we attempted to resolve to do whatever and so we felt we had no choice but to go to court and to bring some sort of action to get resolution of the ownership dispute it was not a situation where this where we were sitting around just waiting for the the right moment for the clock to take the moment the statue imitation spies writes of no i don't think the court i didn't read the court's analysis i'm suggesting that that was true in your case though the statute is fairly straightforward in terms of its intent in terms of what it was trying to do which again i would go back and i would say that i p m s affirmative claim even from of the feds which again i'm not the census  communication she had with i b m and if you look at it of just one single mammals written by her supervisor saying i've been retained all right excuse me but i seem to recall deposition testimony were an idea or my representative says ms appropriate for property and he said that yes i b m has taken actions against employees who take information my d m which he knew he did nothing he may collect that he did not take any action against her which i believe we represent that he should have a lo opportunity to correct a wrongdoing if you believe there was a wrongdoing it was for sale testify that we believe what she was doing was wrong and so nothing had happened for a period of sixteen plus years life had gone on she went developed  of the assignment clause which is fine you know invention is like the business in r and b and also inventions relating to that that was suggested by resulted from any test site or work performed by miss baker to come university cause an exception it's in the same paragraph as the assignment that i was just talking about tiger for and what it says is excluded are developments that i cannot assign to i d m because of the prior agreement with colombia university that miss baker testified on equivocally this the district court of the same questions as well it creates well you're not saying that come university has rights here mr parker said no from university has no right and that's what her testimony is that this is there is no agreement with colombia that would prevent her from assigning  invention to i b m and it's actually did a sign that you may not be apparent from the briefing but in addition to all the parties producing documents in this case columbia was subpoenaed and columbia produce documents and provided a witness for deposition and no agreement was produced by any that picture patents had conceded that columbia had no claim to the invention and that the ip rights agreement didn't preclude her from the signing of the i d m what they argue here is that by writing in the word columbia university what she intended to do was limit the old and tired reman to work she was hired to perform well that's not in the come university clause it's clear by plain language and it doesn't say anything about work hired to perform but in addition what they're trying just no basis to do that that would be a total rewrite of the agreement in addition the argument is that misbehaviors intent for understanding her assumptions create an ambiguity or raise an issue a fact well that's just conference in new york law i mean the cited the w w w associates case at the leading new york case cited over a thousand times it is very unremarkable in what it says it says you look to the plain language of the agreement if that's clear you go no further you don't try to create an ambiguity and i think that that's the law in new york i think that's black letter law throughout the land i i would turn to the such limitations of the no questions on the come university issue on this that's a limitation that doesn't apply for three you look at the fourth amendment complaint picture patent has claimed ownership of the invention and that i b m doesn't own it and we say the exact opposite i b m owns it picture patents doesn't the court said these plainly arise out of the same on out there right well there's some suggestion that she was making a claim to the invention and we set that straight and we said no this is our and we're not relinquishing rights to it you know it's very interesting you know they were aware of the event at that time we  she didn't leave the invention disclosure behind that i b m she actually took it with her she when she retrieved from the technical employee she gave that to she testified she didn't sign it while at i b m because she knew that id and wouldn't act on it she also testified that  it was never submitted to the ip law department so now what is it that what is your position that you had no basis for knowing that she had filed a patent or that you knew it and didn't act on it because it belonged to you we had no basis for knowing that she i assume that i b m is really pushing its right that language is very interesting she's recognizing i b m right and this was after all the meetings that she's alleging all the meetings with business people in that where she says the agreement may have been my is my where she draws invention is ours so that exchange i was talking about stature limitation but i'll turn a second to the equitable that exchange addresses all the equitable defenses equitable stop latches on the other defenses because each of those defenses requires well i should say latches that will stop the require misleading conduct by i b m and additional lack of knowledge or notice by picture patents and it's clear through that exchange to the departure memo in the did not happen that was the final communication between i b m and this baker until two thousand and eight when what happened this litigation was commenced i believe it was in two thousand and seven and in discovery the infringement defendants discovered that the potential for i of ownership and surface appeal and i b m that's the first time we learned of it and then we did at that point it did take us a little time to investigate the claim to look at our records to see what this was about and then in response to picture patents request we conceded to or agreed case the court did apply the policy in that case the policy being which is again i would say the unremarkable the policy being prevention of stale litigation and the protection of repose that's been recognized by the supreme court a number of cases and also by this court in the stanford case where you followed the supreme court and the court talked about fairness in particular it would be inevitable to allow one party to raise a claim and then to prevent another party that  from attacking something going to the foundation issues going to foundation that's exactly what's happening here the issue they've raised in their case with the infringement defendants is ownership of the patent and our issue is no we own the invention we own the invention that traded the foundation and we're entitled to raise that under section two of three and that's what this report held and that's what the sixty three owners case would suggest the interesting fact about that case or that is the point that mr parker was raising there the  an action and the plaintiffs said i'm relying on section two of three in the second circuit said well we recognize these policies but you're the plaintiff you can't invoke section two zero three and the plaintiffs said well i'm a piss a painting a hypothetical case that could be a filed against me at some point in time by the defendant and the court said well you can't do that so it is true that the courts down to a three didn't apply there but that's because it was the plaintiffs in the litigation attempting to invoke two of three here were in the defensive posture as the as the district court and the flaw in their argument in picher pam his argument that it should apply is that equitable stoppel statute of limitations and the like they don't convey title and so under the film tech case and the automatic assignment challenging standing think the the court in stanford said it best and paraphrasing for this case while i b m s failure to timely seek a judgment of ownership might defeated scanner the columbia clause to begin with the district court's decisions were based entirely on undisputed facts of record and pitcher patents on concessions and so the court had no need to resolve any factual to speak speak because there were none but even if he even if you did under second circuit law that was entirely appropriate to do because defendants motion was challenging jurisdiction and least give the impression that i b m had no access to the invention disclosure of this invention disclosure was written on and was written through an i b m system was written on their server room when asked to purcell oh did you bother to search the server for the invention ok it is a one two nine two colon twenty three dash a one two nine three colon fi