ok we have four argued cases on the docket today all patent cases from different for us but each one is a patent case i want to thank the parties and the and the clerk's office you can sue them even if they are co inventors is that right another instance your honor in this case the method as at the end they think had positions as officers of the company and they were actually hired to invent and they weren't into the subject matter what was the company so product at the time and that's another instance where the courts can't live going to need the case citation because my understanding case is different from yours i mean we can't just ignore section two sixty one that requires a writing only time if you can you can have the aquittal obligation to assign is of the contract that they were performing according to the terms of that employment agreement that employment agreement maintained that they had an obligation to the site to go further into the evidence in this case shoppers nathan affected sign a prospective hire grant and  well you want me to do this trial now just invent or ship is that really going to be the vava black so to speak and this is the moment in time where you say well if the inventor ship for a trial on ownership infringed but when you filed your motion for a new trial your multiple motions for new trials all you said was because you had asserted an affirmative defense of ownership that you therefore had this is that the inventor that that you told her that the inventor shipped hearing was all you wanted and that you would give up on everything else and that you never asserted an ownership claim i made it clear that that was an issue still alive in the case because you never would have gone forward this equitable issue of an obligation to assign it would be sufficient to confer standing because you never argued that it wouldn't be i'm sorry can you repeat the question ok i mean you did not argue that two sixty one required a written assignment you never argued that she that there is no such thing as an equitable ability to confer standing so i assume that means you agree with him we agree that there is no standing and that any assignment would require writing and  was not writing in this case the standing argument that we made relates to the advantage of determination and from that determination they had no standing because all the owners in the patent were not joint plaintiffs in the suit so the three one zero patent alone would not have had standing to proceed on an infringement claim well there is a legal doctrine that addresses the question of an obligation to assign that flows to employees or or officers of companies and yet you didn't argue that that that that doctoring wouldn't apply in this case we never got to that point that the issues of employment obligations to assign ownership were not heard by the district cour they were dismissed and waves ok and i'm prepared to address that and more detail there were state law claims in this case all of the state law claims were dismissed by agreement of the parties the district court correctly determined that the district court could not proceed on the investors that claim because of overlapping factual issues with the state law crimes including ownership in assignment which i think mr anyway she didn't actually referred of those when she said there were overlapping issue so many state law claims there's got to be some overlapping issues i believe that's generally correct there were a number of state law claims and they all were interim makes with this it better to question it's far too contributed what who conceived what it was doing infringement is it not i don't recall that being in his complaint of infringement and i also don't see how the ownership obligations with respect to employment in assignment are relevant to the infringement  element of the claim is that not in the context that it was pled it's been defined as an element i guess what you have to persuade us of is that the district court was right that somewhere along the way during the course of the proceedings the other side waved and the assertion of ownership of any of nathan in math alternately proven to be co inventors and the judge said that all parties agreed that you know inventor ship was would be the main event in the final event of the case what can you point us to aside from  fourteen anyone that helps establish what the district court concluded was a waiver of that ownership bangle sure there are numerous citations in the record similar to the citation that is being referred to and i have this here the court would like to hear those i don't know that they necessarily say anything different other than mr raby statement on the record that the only claims less would be infringement and ownership going forward i just don't see how that's correct because of that ownership they've understood that the ownership question that they're arguing is an affirmative obligation of the plaintiffs in this case to assign their rights and they're arguing that as a defense to do to this entire in the it's in it's very cryptic pleading a claim of ownership so why isn't that an element of an infringement claim i mean i will concede i'm not arguing that that's not an element of the infringement claim what i'm saying is that that is not in that context you're not going to take up an affirmative claim with the court that you are not the owner of the patent or that someone who is affirmative claim is that i am the owner correct and that that it's the other side that would have to assert the defense that no he's not correct i agree with that believe it is your honor i believe after the inventor ship was determined they no longer had standing to pursue their infringement client as a matter of law but they're claiming that they still have permission and therefore because they still have a membership they can still i don't think that's completely my view i think that the work for hire doctrine should be applied in this case and could be played affirmatively i think to the extent that that was played here i think that that was waived and was dismissed as part of the state law claims it was certainly waived to the extent that there were overlapping names but doesn't say anything about ownership ownership was never played as an affirmative cause of action it was played as an affirmative defense in this context taking the taking the infringement claim which which we've conceded has an ownership element to it the there was not affirmative state law claims relating to ownership or obligations to sign other than a breach of contract claim so so those claims either were they were either dismissed because the district court s and not announce it i would argue that that's not the case is the correct ok and so there's no reason for based on that paper based on that specific non student of those claims there's nothing in there that would create a waiver i do think there's a waiver for other reasons particularly that those overlapping factual issues with those claims would have overlapped with the ownership and obligations to a signed promise have conceded that in their own briefing and i have the citations as well further by participating in a bench trial which evidentiary hearing which and for all central purposes in this case was a bench trial i believe that they did weight those claims because the district court was clear that the proceeding on the inveterate could not proceed until the state law causes of action removed from the case  opponents on on that and their briefing they say no evidence relating solely to another issue was introduced at the section fifty six hearing that's in their principle brief that pages twelve and thirteen employment is not an issue relevant solely to the issues of obligation to assign and invention ownership by purchase employment is relevant to inventors that such as underlying issues of employee ancillary improvements experimentation at the direction of another and joint behavior that's it thirty in addition to adventure ship employment status was also relevant to document admissibility and whether certain statements regarding employees were intended to include or included made this in and they've been a matheson that's supported so by their own admission these issues and facts overlap with each other and required a determination by the district court that would prevent a right to a jury trial which was the very issue we had in the first place the required dismissal of the state law so you're basically saying that because he he sort of you're saying you tried to stand back the judge he said judge give me this hearing and you won't have to do anything else other than infringement and then when he says oh yeah but by the way the infringement includes ownership that the judge had the right to say forget it that's exactly what i'm saying i'm saying that they waived that to the extent they weren't dismissed those were waive also the only the only wide claim we had in the case at the time was infringement so to the extent these were pledges affirmative defenses that could really only be you know from a defense to be infringement climb which i think the judges would agree ownerships not a defense to infringement and further they did not put it's not a defense to the inventor should claim which is the only life claim that we had so it was either waived dismissed or they failed to argue it at some point during the course of the proceedings they definitely had an opportunity to be heard on i guess what the other side is saying about what they conceded or arguably waived did a fourteen eighty one was a scenario when if the district court concluded that more had was not right to assert infringement but if they were all deemed to be co inventors then paper would still have some rights and that's what they were trying to make a point during that hearing what's your response to that i don't think that's accurate i think that the record reflects otherwise i think they they dismissed the claim that everyone knew that any claim that had an overlapping set of facts to desta gone and that the only thing we were proceeding on was inventor ship and the investment climate maybe the response would be if even if more head was found to be not an inventor at all  theoretically now paper still would have ownership rights if in fact there was some obligation to assign that was that was legally binding on nathan and  matheson so i guess what i'm trying to i'm trying to do over toward them out last night is i'm thinking out loud that it doesn't make a difference whether or not more head was proven to be a vendor because  their theory of why they would still be an owner would hold true under either scenario because nathan and matheson in their view had legal in type or legal obligation by the district court to the inventors and they would have had to have been joined as plaintiffs as all co owners in a pattern right have to be joined in order to create standing so that they may have some claim in that context and go forward basis but anything that came before that's the past