what i was saying is that with respect to the cross appeal we only want to hear rebuttal argument from one party so you should address the main appeal to get your chance later took us across appeal after they are i'm sorry frankly this first i've done this i'm not really sure what to present here but i'm just going through i guess all right well basically got to the district court said that  even before the certificate of correction and second that once you got the certificate correction that was also additional and as i read it there seem to be two alternative theories that the district court gave the chinese court better interest in the case that's not enough for standing you have to have exclusionary rights under the cap and and that doesn't happen until you become a patentee you're listed as co inventor which didn't happen till a year later when we know went through the process  opposing counsel filed a motion for summary judgment because our position was that the chinese and better simply did the work of a an ordinary technician he was directed by alan stone who was over in china all guiding him alan stone looked at the various prototypes he created rejected so a lot of them find it odd that you would you would dismiss a case because you know you have no standing and then you go out in the fall and you should against other defendants based on the same theory the say as we've argued we did not consider the chinese technician to be a calling then or we thought he did the work that ordinary technician did not rise to the level of an better ship and that was our position all along and we finally had to address that when t and the district court seemed to be puzzled by why you didn't immediately move for leave to a man after you got the script of correction yes your honor a well there were a couple reasons  day you could have moved to reopen the case and to amend the complaint of this new owner and if you didn't do it for two months well our view was th court reopened the case profile of the amendment i'm sorry waited a month used in the court reopen the case on october thirteenth you didn't file your motion for leave to amend until november eighteenth a scheduling a status conference was scheduled at that time to discuss how to go forward in the past on a number of occasions you know pretty consistently the court that always waited for the status conference where we would decide on the next step and i thought at that point you know we would look at this issue which would you know that seemed to be something to present at that time so we didn't see that there was an urgent need that we were you know we're going to have a status conference dealing with this anyway it will wait until that happens and at the status conference you know the so on but it seems in the case law i've looked at the reason any delay like that matters is because of prejudice to the opposing party and in those cases it was because we're pretty much on the eve of trial in this case it was not even on the trial schedule it was not no trial date set up so that there's no there's not really no prejudice in this eleven year old case that point to you know this look a little period of time doesn't seem to create any prejudice at all on the other hand dismissing the case which the judge d under rule sixteen the standard is that cos not prejudice prejudice is one of the ingredients in the next of what a court will look at to determine whether there is good cause but the principle obligation on the part of the movement well i guess what i would say about that is the scheduling order had expired literally years before we were not you know and there have been a number of violence of the case that could have been covered by the scheduling order and no one on either side had moved to amend the schedule of order and  as fine again there was no issue there and somehow here became an issue and we thought that was kind of selective arbitrary that suddenly this is an issue to go back a few years and get the extension on the schedule in order when for other filings before that it wasn't and so it didn't seem as though there was any reason to do anything other than simplicity really hard for me to a seven argument a reasonable diligence when he argued that it was up to the court to act when really you're to move here to take action and to to move on behalf of your client and to take affirmative action in doing that exercise reachable diligence you're arguing on the courtroom where i was waiting for the court to to to take action well you know it was the court that closed the case of their own initiative and then we thought it was up to them to reopen  i mean we didn't ask in the closet but they did and we thought that was a good idea that we you know i mean it just seemed as though there was not an issue there because the court would recognize this and reopen it in due course when the court felt it was appropriate so  being a fourteen months it's really pared down to just you know just maybe a few weeks or about a month so i mean the vast majority of this time frame that they were saying there was a lack of diligence on it is simply you know simply not so much about being on the eve of trial and this delay mattered there in this case it's not on the trial calendar so it just didn't seem as though there was it an issue for such a short time for so that that was our our position days but then they know the court's main argument here was not about weeks their main argument was we waited fourteen months and that was simply not correct i mean they were they were looking at a huge time frame that really didn't exist and i think the other response so you're supporting to deny all that motion for leave to a man correct yes or so why isn't the cross appeal on the infringement issue frivolous because how can the on the merits of the infringement question when by your own view the court does not have before of the necessary parties i think that your honour's choice of words is right when necessary not here you know you you could have named the you could have brought the other owner into the case and clean and that was necessary if you were going to get it declaratory judgment or judgment of non infringement right well just a bit to be fair on the timeline at the time we moved for summary judgment according to everything we were told by the plaintiff the chinese technician was a phantom unknowable on find a public but look right now at the end of this for the reason i stated under the case law at that exact circumstance where you have some missing player but depending on the relationship between that player and who you have you don't lose subject matter just is not constitutional standing it's necessary versus indispensable party analysis whoever pangea is with the chinese take that person at least going back a few years as sat on the sidelines adam moved intervene they never moved to intervene that the introduction of that party to work against what and it distinguishes it has a sub in apparent but it finds the missing party that has some bundle that writes the missing party is not in stance a book and it it does sort of a virtual representation analysis so it says they're not here but that's never the case not resolved america was resolved on the summary judgment motion was granted on the basis of the the dismissal for lack of interest show right to the way we think you can talk about why you should try to resolve this to bring some closure to the case of the dismissal without prejudice we say should have been with prejudice because we should have won on summary judgment it yeah i understand you can say that a denial of summary judgment is on  as i understand it is that even when the denial of the summary judgment motion is brought up on a cross appeal as in this case the courts of appeals have typically said no there's no jurisdiction now there are occasions in which the courts have said well in limited circumstances where for example the question is purely a question of law or there appears to be a very close relationship between the legal issue that's up on the main appeal and a legal issue that would be brought up on i don't see that this case is falling in within those exceptions however what is your basis for saying this case unlike most cases we should be addressing the denial of summary judgment three reasons first a denial of summary judgment and then a disposition on another ground which leads to an appeal and a cross appeal i don't see what distinguishes this case from the run of the mine cases i would say it least from  sort of doing justice perspective the unfairness of ten years of litigation and they refile tomorrow clear you should have made a different argument and that not appealed from the denial of summary judgment where you should have argued was the district court in  limited circumstances that judge bryson mentioned because of this unique suggests not like every case where you end up with this dismissal with prejudice and again it there obviously are some cases that get to the  want to do a light touch and let everybody back at the trial level do things in the first instance are read it to it's a it's a heavy lift we're asking for but it's a ten year old case that that issue which is going to come up on a brand new case you ten years we thought under the discretion the judge had the a piece of the will sixteenth deadline met that case at the end that can figure it no parties who was there then couldn't start a new ten years then but we also didn't want to leave that favor on then i suppose it has disagreed with you incident felt that the district court had properly canards from retract what happens with the case that we're supposed to send it back for a trial on infringement where we supposed to you know i think i think if if you disagreed with us it still ends the other way that case and the other way your decision would be the only decision that would discuss what happened in this case whatever happened a denial of the incorrect adjudication of a summary judgment it is not going to transfer t number two so our decision on the summary judgment if it went against it would be purely advisory which would inform the district court if a new case was filed as to how we should resolve a new motion for summary judgment i don't think  it's purely advisory again you have jurisdiction to reach it well to quote how about that where what's the best case you've got for the proposition that we have jurisdiction to breach that given the general principle that within one of the limited exceptions to that rule i think the h r technologies case the terms of reaching it and that is that's one case we said in the jurisdictional section of our brief  so i think ed is that there is a case called scripts which does stand with twitter for the proposition that the final dismissed or disposition of the case calls into question or raises for review we ended up with a dismissal without prejudice that water has been challenged it's on appeal we say based on the incorrect disposition of the summary judgment motion that should have been with prejudice  what you could argue as i said before is that the district court should have resolved the infringement question not to appeal the denial of summary judgment which isn't properly before us but you could have said he abused  discretion in not resolving the infringement question so please send it back for a trial so we can get a final judgment and we can appeal from but that's not what you asked for yes or i guess i think that that that the the basis for the request to reach it is a get that the will prohibiting until it locked or it goes on denial of summary judgment it's supposed to create that multiple trips up and down multiple piecemeal appeals in the same case we would say this is the opposite we're already here this issue we say you have the record to deal with and it's never going to get reviewed if we end up in a refiled case there was a moment we say in time when this case was was ripe for disposition on the m you going to address the sanctions question no actually your honor i was going to address the the non infringement arguments and why sending the case back to the district court is a waste of everyone's resources because there is absolutely no evidence arguments on the merits of the of the cross appeal but i do have a question about the sanctions and the timeliness of the sanctions and that is these cases that you rely on from the eleventh circuit are dealing with post trial motions not motions for reconsideration and so why isn't this on time we under the rule because it's a motion for reconsideration which is directly within the language of the  encompass a motion for reconsideration within that language what it would mean does it have regardless of the prospector pendency of supplemental review well as again i think the law is well established  that local rule when on the books in the face of decades of law that says of all fifty nine motion stays destroys a sponsor find out that's a settled lot and that's a lot of this will wind on top of the rule uses the term final judgment and you can read all the letters or the cases including a member first credit in case and the skull dame's case that we cite and at that make clear that means you start the clock what what is lying which are the rule meet regardless of the prospect of pendency of supplemental review does that mean supplemental review by the district court i think the best the obviously there's nothing any advise or it can be read the judge and are opposing counsel have the luxury that that means supplemental review by the district court yes i think i think the new word to use just say your deadline ran from final judgment and obviously that finality was delayed your clock was delayed they added not only supplemental review but the word order and from what we've seen post the judge's ruling the example where it seemed to apply was a case where the district court granted summary judgment in a insurance proceeding that has some kind of appraisal thing and there was an enticement to fees just based on that act and without digging into it the court treated that as an order that started the clock to do the fees presumably for the reasons we talked about on the other issue that order could be subject says you start the clock when the rule fifty nine motion is gone that that has to be what it means and there's no case or authority or commentary that would support the idea that supplemental review destroys the whole concept of  finality or all the law that says what we do what we really are we are in a very strange posture here we are asking if you're asking us to construe a local rule that has been applied and it he's the fellow on scene who applies this local rule regularly we aren't even the reviewing court on a regular basis for that district and yet we're being asked to say no no judge mary you didn't interpret your own local rule correctly that seems to be to use your words a heavy lift well it is and obviously dealing with a walker it might be better if this ended up if it was in the other circuit but this is the case that's before you and works gone up the first question is does the specific language of this rule change that otherwise general principle with respect to rule fifty nine you're actually right that typically rule fifty nine will postpone the sentence many times district judges enter judgments and they call them final judgments and then somebody files that will fifty nine and it becomes not final for purposes of appeal so i don't know you get much mileage out of the work final judgment reconsideration and rule fifteen and i think the best answer is it means something that happens with an order that's not a final judgment and additionally a final judgment and we know how those work and we know how timing works and that it also talks about orders that might trigger a right to feel these and orders like a summary judgment order so in their assertion for reconsideration of an order would be treated differently in your view from a motion for reconsideration of a judgment i don't know if you get it if you label i probably for us all the answer is probably yes because it's not a final judgment it's a different category and at least there you're in fair game talking about some of the sins but certainly in the one example we found in the case law with the summary judgment order and the court different situation than the motion for reconsideration because that you know could change the whole outlook of the case you could changed the judgment motions for reconsideration generally don't change the judgment well we ask is told to go say whatever the opposed from motions although those have often low probability of success as well but in either case you could completely flip the outcome or you could certainly alter the basis on which somebody could get fees or not and they're both pretty tight time frame motions so the brains actually only one brief in that case and it didn't mention supplemental of it so it's not clear to me that they got that on this case was focused on the issue that we have here but there's another case from the eleventh circuit the clark case you familiar with that one  referring to a prior decision we held that for purposes of a local rule post judgment motions are subsequent appeal do not affect in any manner the time when it's contained in the local rule so there the court is saying with a rule that says you file after the judgment within a certain number of days it doesn't matter if there are subsequent motions made it seems to me if that anything that case seems to say that it's least open to question whether the local rule should be read as applying in a situation where there's a motion for reconsideration i think look with different words you could clear this up in different ways i think the one case you do have is goldens i will grant you it didn't discretion yes sir ed we would argue that within that general standard of review when you have just a rule to read and a case to read you are in a similar position to the district judge i recognize the said about him being there  that was before the court or i mean that that's kind of a sea change to say that we used to start the clock after denial of little fifty nine motions we've done that for years we have a lot of cases say that that's all out the window now because this is an articulated supplementary view covers anything including things that we used to say actually stay finality and breathe life in define the term final judgment it's really in the rough that's a big change and is a big change that would affect a lot of people calculating time and to say that was intended without any commentary it that seems like a stretch and again we're not asking it recognizing this in a basic discretion standard we are still in the area where it is illegal members first and then it went up the ladder and was affirmed that doesn't appear anywhere bob to argue that the rules changed during this time period between your members first and at this language and so it the judge was correct in finding it not persuasive know i gave you a minute you have a book staying with your question obviously researched extensively to find the case you were looking for the one case we found in it it doesn't go to the broader question but it goes to the question of what the heck supplement the review means with an example of something that's not a judgment that's waiting to be final it's a summary judgment water there was a question of whether a fee application based on that was timely and the court said i'm going to count to sixty days under this rule that says you got sixty days from the order words would apply to is a natural one and of course one that's an example that but there is a resource there's not another case that we're a judge did what judge merrick did here so it's not an affirmative ruling saying and you think it would come