into the argument on the merits of the motion for summary judgment ruling of table money start with i don't know if you were here for the earlier argument of the one before the last one we asked both sides i think like why are we here gone done that way how did that happen the parties proceed to judgment on the diversity claim we go to the eleventh circuit the eleventh circuit issues one of its jurisdictional letters that says wait a second we're not sure there's diversity here the parties put their heads together and law at all ok and so then the eleventh circuit says wait a second there's no diversity we agree and so then the parties have very different ideas about what happens next we say that there was never any jurisdiction in federal  and so the judgment below has to be vacated and they say wait a second this is not a patent case all along and therefore there's still jurisdiction in the federal courts under thirteen thirty eight and the district court agreed with them so why do you when you court ruled right and that point in time it goes what that's the court's means is still in the eleventh circuit that point in time so the parties then each presented their view to the eleventh circuit of what should happen next and you ought you sought the eleventh circuit yeah but there were there were two really elements of the chief justice decision and substantiality one was yes the fact that it was backward looking but not all the cases that have that are just that are the m p s case is a good example were it was forward looking in the eleventh circuit in that case still deciding that it wasn't a patent case was a was a substantial and that leads to the other part of the chief justice decision which is in looking at substantiality we also look at the nature of the patent question is this just a dispute on the intricate facts of the case applying basically you know well settled patent lot to the facts of the case or is there some sort of big picture patent question that that's more important than the parties one that i see with you but a kind of a patent stuff either that will destroy courts or certainly not us my concern about that factor is that's true of every single case by definition a state court is not going to have the authority to do anything that binds us or just records and patent space so how do we consider that if it does that light up everything that goes to federal court every doesn't that apply literally doesn't that mean that we're going to let the state courts do everything you know i mean that is a good point but but a number of courts including this court have have made that exact point that the state court decision is not going to be binding it's all kind of wrapped up into the decision of how important is the who may be just siding secondary considerations in a way that this court has never really so i'm having a hard time differentiating between how you say what a state court does how does that ever become important or substantial question a path mark if it's not done by a federal court and i think most of the time it's it's it's not and maybe never and so i think that is almost always a factor that we ne assume the state court went off here and really decided i'm deciding this patent is invalid and then there would be some law the case issues certainly between the parties but not going beyond the parties but look but before we get to the pardons and george pro scenario like how does that play into our analysis of the gun factors why i think here look at how the parties treated this case the parties treated this case you but if you're right going forward that would be an issue and clearly you'd have a patent case if we were suing for patent infringement or looking for a future role as well but when you're looking for past royalties the only question is did they have to do they pay all know from the christianson case that we don't look at patent jurisdiction it look at federal jurisdiction based on the defenses we we look at jurisdiction based on the well pleaded complaints of the fact that they raised in an unpleasant encounter claim either right w claim raise the issue of the wedding but there were other aspects of their breach of contract claim that just complained about our failure to get certain assignments and what several of the cases that we've cited have said in order to satisfy the essential prong of gun you have to show that it is essential to decide that patent claim that's what there are two ways to decide a claim one involves the patent and ability claim and the other doesn't then you don't have an essential patent claim so you fail one of the four say well the plausibility comes in when when you have two of the circuits disagreeing over whether it should be an issue of say the eleventh circuit versus the federal circuit and if one of the courts one of the federal circuit says yes it should be in this court then if that decision is plausible that decision should stand but we're not here in that posture we have a district court decision that we think made an incorrect reading see years ago that standard only applies when we're federal versus federal law and doesn't apply that versus state question that it applies when there are two different federal circuits to which the case might go into federal circuits are disagreeing over that in the first one the first decision of it's case the patent claim was central to the janko if you could not decide that case without deciding the patent case as it's perfectly evident from the record that we have before us you could absolutely decide this case without reaching any of the patent issues and even if we had gotten past the summary judgment and we've been litigating the contract cases the patent invalid the claim was a defense and it was completely irrelevant to the claim for past world sees everything about this case is backward looking in the sense that we're we're suing keen what is the standard for us i mean the potential there is potential in a lot of cases including perhaps this one that eventually if you move the litigation it may become necessary to talk about what the products of when the products of covered by the patent whether or not there is literally if the counterclaims were to come into play so how what what is that difference between whether we have a difference between whether it necessarily well as opposed to whether he has always been sworn to specifically i think that's all wrapped up into the into the question of whether this the patent issue is substantial and in many cases you're looking at that going for cause that you're sitting at the start of a case and someone has removed the case to federal court the parties have been litigated yet we i think it's easier in our cases we have the benefit of the heights of hindsight we know exactly how the parties chose to litigate this case and my goodness the way they it wasn't actually litigated because we see from the summary judgment record that the court decided this issue without making any patent decisions and it's not substantial for the reasons that i articulated before this was just a a a application of the particular facts of this case to well settled patent law there's no big picture patent issue like like like the chief justice was talking about in the gun case so we're way beyond our time so i'm going to ask you to specifically you know that hangs right to relief depends on whether the stents sold by the petitioners would have infringed yang's patents so they i believe what  patent as a result became the balance of the question was in the third appeal to our board was whether we still had jurisdiction even when there were no alive patents in dispute and so then when the port referred to involved with that we transfer that to the ninth circuit i believe that's correct so the other side cited neuro repair which is also malpractise clean federal circuit case but there the court said a plaintiff's right to relief for a given claim necessarily depends on a question of federal law when every legal theory supporting the claim requires the resolution of a federal issue so here in  prevail all the affirmative defenses that might knock out a claim but i believe that what neural repair and what yang were saying is that in order to prevail must a patent issue be involved in in our case we have this unjust enrichment claim in order for the plaintiff to recover under that claim they would need to prove under the unjust enrichment claim as they allege that there was used of the  the manufacture and sale of the products here with your car seats in the form of cartoon characters or rather famous characters and that there weren't that the products being sold by our then there would be no liability there would be no benefit conferred and so that's the point that we're trying to make here is that this unjust enrichment certainly your position that you have to have actually used patent in order to receive the benefit of the ability to there would be no of course there would be no benefit to the facts of this unjust enrichment claim there is no unjust enrichment claim if there's a valid license agreement i think so if we get to this unjust enrichment claim the only way we're case said an a and p e g p g case i believe out of the southern this or the eastern district of new york two cases that were very similar here both unjust enrichment claims that are cited in our brief have here both said that this is basically a patent infringement claim masquerading under the title of unjust enrichment and although they do please the elements of unjust jurisdiction is that where there is a state law claim was here unjust enrichment in which there's a substantial patent issue and that is a claim that you cannot  guns where the patents were invalid or expired are no longer alive in our case these patents are lie there's a number of not a listed in the complaint of believe twelve or thirteen listed in  complaint and as of the pleading all of them are life and so it's where distinguishable with regard to god because of that issue and i believe persuasive effect for all business people who want to deal with this issue perhaps but characters on car seats they are looking at that opinion and it has some persuasive effect as to how they would interpret it i think it's not only what the essential issue to these parties but also to others doing business in this area and that's why i think thirteen thirty eight jurisdiction was established it's why this court was established in one thousand nine hundred eighty two it's why the congress double down or triple down on the jurisdiction of the federal courts to have exclusive jurisdiction so all of those indicate the congressional intent that these issues patent issues like patent infringement would be in federal court and be appealed to this infringement and non infringement so as to render more predictable the outcome of contemplated litigation to to facilitate affected business planning and three day conference to investment in innovative new products and in terms of yes this should go through the system the traditional system that has been the service to consider dishes when they're involved and sponsored  and the supreme court during this is why i kept coming back to the word plausible because that's what was used the supreme court that there was in fact resolved in favor of twelve that they didn't identify the characters in the name of the p prior art that was raised in the  well restitution in paragraph forty six is as a subject patents are invalid and otherwise valueless the circumstances are such that it would be inequitable for id g to retain such benefit without really compensating  just as i believe this issue has been addressed by the district court the case law that we've cited in our brief clearly establishes that where there are issues  like here where the they do two key issues under the gun factors or whether the patents whether the issues are substantial here you have life patents as distinguished from gun and you also have the balance first of state versus federal issues we don't have the malpractise issue here which we don't have the we do have a balance of state versus federal and therefore i think  as i've quoted from the earlier decisions with both the thirteen thirty eight and with the the rulings with regard to the establishment of this court and the a i a it's clear that congress is you can decide this case without going to the patent question is not necessary to this case and as you were pointing out judge newman it was racist part of the the defense which is irrelevant under christianson for purposes of determining  the other thing about the case and i was mistaken it was a federal federal case the question was it was a diversity case everybody knew it was diversity so it was just a matter is it belong in this circuit or different circuits so you didn't have that federal disguise and i would commend the court disport to its own decision in the word rezin ski case which we talked about in the brief that's another unjust enrichment case where this case talks about the difference between and i'm just enrichment action and a patent case and words that i think really apply perfectly here you know a patent case you can sue anyone in the world who is using that product and unjust enrichment case is based on a relationship between two parties who have entered into a contract that may have failed and and so the the cause of action is not based on a pad that's based on the relationship between the parties and that one party has conferred a benefit on the other that that party shouldn't he that benefit goes far beyond patents in this case what happened in this case was mr prime sold most of his business to the bull yairi group we then took over the business and basically kicked mr crying hours and mr prime point in his unjust enrichment cause of action in ideologies and just an original cause of action is you basically can't take this business then terminate me terminate the patent license agreement and not pay anything for it so the young just enrichment is not just about the use of the patents it's about their basically the fact that they have taken the business away from mr prime without paying him the three million dollars in minimum royalties that he that he was entitled to so you can decide that on just in richmond claim completely apart from the patten in fact you could decide that the patent was invalid and we could still win that unjust enrichment play because if we were able to prove to a jury that essentially we gave away this business and you were supposed to pay three million dollars in royalties and the only reason he didn't pay the three million dollars or royalties is because we didn't really s real quickly on the you're talking about paragraph forty five forty six forty seven in the complaint on page one hundred but if i understand correctly that in there it's not talking about the selling of the business and everything else that you are talking about it just sa benefit is that licensing allowing defendant to use and does use its utility in design right but but that the way the litigation unfolded between the parties i mean you're right that the narrow language and count one in this well plea to complain at all and then you have to get to the substantiality point and that's where this consideration of the balance between the federal issues and the state issues comes into play and i think at that point and t history of litigation does become important in informing the court about what is really in play in this case is this really a patent case or is this really just a plain old ordinary business contract and tort dispute time stuff thank you