the underlying purpose of that statute and whether in light about purpose it could be said that congress did not intend that there be a waiver of judicial remedies the second issue this before the court is the question of whether the district court properly compel the arbitration in this case based on what it described as a theory of assumption could it do that in light of the district of columbia circuit ruling in d s m c and could do that in light of the relevant in the context of this motion to compel to apply the law of the circuit from which the appeal emanated in this case the the d c circuit and as as both parties have acknowledged there is a d c circuit case that is very sixteen of the federal arbitration act that deals with the interlocutory appeals the court said it had to construe section four in chapter one of the federal arbitration act which is the means by which the petitioner can bring a motion to compel this case the district judge went off on a date apples and oranges i think they are apples and oranges judge and if you look at the case law especially the case on the second and fifth circuits which i think is very instructive there is a distinction about the claims and theories that a signatory can use soon compel arbitration versus the claims that a non signatory can use and if you will at least that that issue the one you just mentioned is really the issue we have to confront not  because i couldn't find any any case where a a willing non signatory could compel arbitration on non willing signatory on an assumption theory no i'm not and that i think that's exactly the point when the assumption doctrine is applied it's applied by a signatory against the nazi atory and if you look at the cases that we've marshal in our brief and the one case that the court relied upon which are called united airlines because i can't pronounce the other name talking about strangers to the situation and you couldn't aspect the relationship between the signatory and the non signatory in the as any arbitration agreement could be negated just theory and that theory as i think that the only points out correctly in its papers looks at the relationship between the claims and parties and looks at the question of whether the claims being asserted by the signatory are based on the from contracting party well i think in that case there might have been other theories that were open to the court there might have been a theory of alter ego i mean that's something that the thompson c f s second circuit case talks about the said there are five different ways although in reality those are ways in which a signatory compels a non signatory but for purposes of argument perhaps the court could have said well yes there is an identity between these parties or oh judge i don't i don't necessarily think a policy grounds that would be the way to go but that's not what the judge here in fact i think it's very important your honor is that the judge in this case adopted a theory that was very sweeping far more sweeping than the alternative equitable stop and theory that the s n c did not allow because all it requires is that  the nazi and tory raise its hand and say yes i will be back up and then take some action toward being bound and unilaterally it attaches itself to an agreement it's almost like it's reached the arbitration clause as an open option to all  only have to do is accept and unilaterally you can become bound to that contract party suggests that there are family structures that's quite true judge but we know that there are some structures with two hundred three hundred four hundred affiliates and we know those corporate groups decide that well i think to the facts of this case but i think those are similar to the facts in this case judge because i think that if the court here countenanced the one what was applied by the district court it would be opening the door to a wide she not unilaterally judge because consent is supposed to be a bilateral it's supposed to be mutual consent at and the judge here said in his opinion when it insists this to agreed to the arbitration and there's no i think that the corporate the transfer occurred between iraq and then became not and only because they have opted into this arbitration agreement and  i just don't understand the argument as to that you're making now is to use that this signatory not signatory argument when as a signatory you have the authority to bind these the rawdon all if you issue of assumption and if there is anything more than roanoke could have done to some to assume this confidentiality agreement and agree to arbitration tell me what it wants as well i think we have to start judge by looking at the doctrine of assumption the doctor there i think the we may be willing to arbitrate with your but we are not party but you have to sign something that's called the covenant and there was a written draft agreement that was exchanged various versions of it between the parties in this particular ones at pages three ninety five and three ninety six of the joint appendix and it was never s and what we're saying is that this really isn't an assumption this is a question of whether the parties have now to mutually agreed to arbitrate something that they're not required to arbitrate it well there was some writing between the parties and there was agreement to of the not signatory it has indicated it will be bound it's indicated that to the parts of the court what i don't think the court did was to say there was offer an acceptance and we certainly have never said that we accepted or entered into an agreement the agreement was never signed we asked for certain conditions and what we would say was that an agreement to arbitrate if you're not already in a contract is a contract like any other contract and in vista and they have the right to extract certain conditions from rodina p i it never was willing to give those conditions and we never interviewed the agreement but you can't just say a party can just satellite into an arbitration clause and waive its arms and say i'm ballin now and suddenly the other party is disenfranchised if it's judicial remedies and it's litigation rights and that's the sweeping impact i think that this decision would have and i do think the court with all respect needs to look at the impact that such a decision would have by a federal circuit court it would open the door to more tactical use by affiliates and other non signatories of arbitration clauses to prevent and in this case prevent an owner of technology from exercising its lawful and appropriate litigation rights and i think that's a very important issue here and i would also say that that's exactly what decency does not allow judge i have two minutes left and i haven't there was no objection to a jurisdiction by road there hasn't been they've been participating in the arbitration which has been pending for i think two years and proceeding in this the didn't before they did that ask for representations and warranties and letters they did it and they must have had a good faith belief that road was bound by the arbitration agreement or they would have a basis to sue in arbitration against and they did have a reason to believe that road u p i would be bound in the circumstances which are court felt bound by its precedent and it didn't go that way and decided instead on this assumption theory how does the arbitration that was and be bound by it by participating in the very very arbitration that they can met that's number one while it wasn't necessary to write letters making clear that we would be bound by the outcome and wouldn't argue to the contrary to either tribunals for all purposes having anything to do with the substance of the agreement and the arbitration clause we agreed to make clear to the court that we weren't going to try to wiggle out of it it's precisely th the opposite of what has been contended we were trying not to use the corporate structure to win the outcome of the the arbitration there are confidentiality agreements between the goateed to you to your question judge newman gaffa look at the unil but between various rody entities and and invest concerning precisely the same information in the spirit here at the gen three confidential communications they all have arbitration clauses of the this where they were talking about the dispute it was no surprise when they sued in arbitration what was a surprise was that they are also sued in federal court and that's the question really that we think is here a prada case in federal court and  arbitration against wrote a u p i where they allege the same underlying facts the same conduct there's overlapping relief in claims not identical but overlapping and the same fundamental question is raised in both proceedings which is operation of the various laws your honor if the claim were limited the complaint were limited to the two fifty six claim and if you assume the fact that you asked me to assume which is that they're correct that it can't be arbitrated then the answer to that might be a would be prudent although we would have argued that that that the case should certainly be stayed and await the outcome of the underlying factual predicates that are going to be determined in the arbitration because the arbitration is highly likely to dictate the outcome and potentially lead we asked to we might we move to compel arbitration dismissed the case and compel arbitration or in the alternative stay the case and await the outcome of the of the pending arbitration to see if there was anything left the court question is whether and the second point i want to make your honor is that they brought to our claims in addition to the two fifty six clay i mean it appears that they're no longer contesting that the court that the tort claims that six claims that were brought in in the district court four of them were tort claims only two of them were related to two fifty six they don't seem to be arguing that those are an arbitrary whole under any particular act that those claims are an arbitrary they overlap with the claims they're asking for the same remedy which is assignment of the patents they're asking for damages as they are in the arbitration and it's quite clear that they fall within the scope of the arbitration agreement which is any claim arising out of the confidentiality agreement so it was a much broader case they retreated to the two fifty six hundred women now but the case that the district court was confronted one was an overlapping case that had one claim that they weren't bringing in the arbitration in effect which was the the correction of the inventor shi order us which they clearly can to go with invest to the patent up to the director of the patent office and make an application which can be done without any traditional interference that's the way it's often done we would of course comply with the order we've said we'll be bound to the to the arbitration agreement and the outcome of the arbitration for all purposes with no intention of violating an arbitration order but they've they've brought us into the arbitration we haven't objected we've been participating for two years we fully expect to comply if that's the out if in fact that's what's ordered and we would comply with that order but the question is should there be parallel cases if you don't get in the arbitration  proceeding and will proceed the arbitration has happened and is happening the question is whether there should be parallel adjudications in parallel cases and we contend under either the doctrine of better opal stop which we don't agree either equitable stoppel or assumption given the facts and circumstances of this case the court was what it was appropriate for the court to conclude that the parties had in under the circumstances of this case agreed to arbitrate this dispute and there were we would submit that there were many facts in the record that supported the judge's determination below that that we have soon the contract to arbitrate if you look at the thompson standard what thompson says is in the absence of  signature a party may be bound if it's subsequent conduct indicates it's assuming the duty to arbitrate that's the test that it's subsequent conduct indicate that it assumed the duty to arbitrate it's a course of conduct test you look at the t circumstances what the district court looked at the totality of the circumstances were we say very clear in vista first sued wrote in an arbitration row d p i accepted the invitation it never objected an object it has no intention of objecting to the the true your patrician if you look at the statement of claim that they file in the arbitration which is if it's in its joint appendix ninety three ninety five ninety nine and you look at the paragraphs of what they're alleging against rodeo in that claim it's going to p i it's breach of the confidentiality agreement they are alleging that the respondents which includes wrote u p i have violated their contractual obligation including confidential information obtained by them pursuant to the confidentiality agreement in the in the patent applications they say that we've denied their contractual requests under section three point two of the confidentiality agreement to make an assignment those are contractual based claims that they've made against they had to have a good faith belief that under the circumstances of the case wrote u p i was bound to the contract and if it's bound which we've never denied for purposes of this dispute having anything to contract affirmatively and then deny the up the arbitration clause which is precisely what they're doing and it wasn't surprising that in this brought in arbitration because the premedication correspondence between the parties made clear they were both talking about the dispute in treating one another as if they were parties to the dispute as i mentioned the context of this was that they were confidentiality agreements with moon risks of the rodeo affiliates dealing with the same subject matter all of which had arbitration clauses  and as as you were indicating there's a very close relationship between wrote u p i and rode in the l this is not an unwilling plaintiff this is not an unwilling signatory this is a willing signatory this signatory comments than signatory can invoke the arbitration clause and a doctor under an assumption you're the one that said it's not applicable and the reason for that and what we would suggest is it's never an absolute rule it's always the facts and circumstances test the question is under the facts and circumstances with respect to the dispute before the court if a third party volunteer comes in and says i want to assume the arbitration clause well under the facts in those circumstances that may be inappropriate and what can vera was trying to do in d s s in the d s m see case was they were competitors they were trying to take advantage of an arbitration agreement in in agreement with their mutual customer that they want to party to and use it to sue their competitor and that's completely different even if the court was ruling that equitable astop it didn't apply in the first instance which it was because that the s m c court was very clear to limit its its holding to up the the narrow question of whether or not  not saying equitable stuff is not available at the lower court level we're saying it doesn't provide the basis to appeal on into law kotori basis as a matter of right which is normally not afforded and so we're going to interpret that narrowly  directly relating to the subject of the of the arbitration clause as well as were already of correct so it's not it's not quite the same it's not like in this initiated an arbitration against and you know they talk about using the corporate structure to manipulate that the reason that the equitable stop of doctrines and the other doctrines have arisen is so that people can't pick and choose affiliates they want to sue and say always you have to bind every affiliate in the corporate i understand going to argue but there's no basis to name them in the suit and they didn't limit it by the way to one claim or another and they sued for all of them in the arbitration agreement in the are in the in the notice of claim but they have to have there has to be a belief or doctrine that enables them to bring road u p i in they brought them in because they had some belief rodion p i was liable under the agreement and that agreement is the agreement that has the confidentiality agreement i mean excuse me the arbitration clause in it and so by leaving rodion they'll out i mean they might have argued that rodion mill was a necessary party for some reason in the us they did it but but they shouldn't be able to to have parallel cases because they left out one defendant when they have under the circumstances of this case they suit both of them in an arbitration of course i was because it's contractual relief that contractually for the assignment of the patent back would not have been effective if only rodion the will work the defendant it needed to have the absentee as well and that's the position that we've taken in front of the article tribunals we've said the reason that really a piano is in this at all is because for that contractual leaf to be functional they have to be at the table as well so now we have a party in our book who has taken what we take in information under a confidentiality agreement secretly given it to an affiliate that has no agreements with us at that affiliate go and get a patent in the united states and other jurisdictions and then when we attempt to use our judicial remedies against this affiliate that's been the misappropriate of our technology it comes in and it invokes the arbitration clause of the confidentiality agreement which is not a party so from our perspective there are there are equities involved with the equities and bob one in our favor the the claims that we've made in the standing under two fifty six and a lot of the court has said that two fifty six needs to be broadly interpreted as given standing not just the owners but the people that can show a concrete financial interest and it has said that a party can be made to defend it if it has some economic state in the pattern as well and addition to that little chords in the decisions that have actually been cited by the apple we talk about another type of right which is the right to receive notice and be heard even if you don't have standing to make a claim and what we say that the purposes the underlying purpose of two fifty six simply cannot be achieved in arbitration because it it has it is procedurally a mechanism by which any number of people with standing can come into the proceeding and some of the people who receive notices concerned parties that are to fifty six may alternately have sufficient standing to become a party we don't know about and there are some of the courts that in again in the lower court decision that say we're not sure if this person is going to intervene as a party or not but we recognize right to come and be heard and to give testimony there is no way that that mechanism can be achieved in arbitration arbitration makes a virtue of secrecy i mean imagine how an inventor or putative inventor claim true and better is going to intervene in a confidential swiss arbitration proceeding it just can't happen the mechanism that they propose is that somehow the court gives notice after the decision has been made in the context of unfortunate proceedings and what i would urge the court to do is to look at adequate five of the new york convention which very strictly limits the grounds on which a district court can review a foreign arbiter war it can't there's no grounds to allow a party to come in and simply say well they got it wrong we have to do it all over again and that's true of domestic arbitration as well under section ten of the first chapter of the federal arbitration act it's just unworkable and it's not consistent with the congressional intent here ok thank you thank you