is whether the selective use of the term now in the november nine hundred eighty seven agreement between the suitors and middleton's predecessor interest terry austin has meaning if it does then middleton has fanning to maintain his suit as an exclusive licensee under the five point four patent and since this contract since his appeal focuses so much on the contract language i'd like to take a look at that with the relevant portion of the nation eighty seven agreement which is november nine hundred eighty seven agreement and then we have a clause for which further specifies any divisions reissues continuations and pardon extensions of the foregoing now owned by souter or under which souter now has the right to grant licenses or for which souter has an application for patent rights pending importantly in the focus of this appeal is the absence of the word now from that last category the reason it's important because the application for the fiber handing itself mean now so that the it would be in the present tense doesn't pending mean it's now ordinarily would your honor but has also is in the present tense but the court will know that in this court in this provision the contract and parties opted to use the term now has even though has again it's in the present tense when the suitor's concluded this license agreement and at least in our position assigned any license rather any applications of the suitors might own in the future an assignment o application would be consistent with a license because we're not in the middle to never own to the application it was only a licensee and again one owner of a patent to transfer that patent to another owner and an existing license would not be inconsistent with that transfer at all so that representation doesn't contradict the fact that the application for the five point four patent was one of the applications owned albeit in the future by the the now or in the future which shows that when they wish to make that clear distinction they know how to clearly do it they did it in the very preceding cause that's true your honor they did opt to use different language in that clause why wouldn't they have done it in the next one if they meant to do the same thing because it was unnecessary given the fact that they use now in the first two clauses and they omitted it from clause number  three our position is in the pending is again back to the original thing pending isn't a now you get to sion again your honor as is the word has but in clause for the parties opted to use the term now has but it has pending isn't necessary at all if you mean future rights right if you're looking only future rights why you need to even put the has pending in there because it would have to be an application that was filed an example where an application wouldn't be pending is before it's filed at all or if the application was filed and then withdrawn something along those lines so the term tending described is data talking about something which is obviously divisions reissues continuations in part all of those are something in existence so i'm not sure i follow your the relevance of your point where you could be talking about something the cause doesn't refer to but your honor it could be that the that there is a draft continuation in part for example that is not yet and or again an application that for whatever reason was filed and then withdrawn it would no longer be pending at that point so there would be no there would be no license rights conferred to middleton under those circumstances pending is intended to describe the status of the application rather then temporal context regarding the ownership by the supers that's why that term is in there but more importantly the the word now is not and under iowa law every term in a contract  no no your honor when it was first filed it is not been assigned to anyone our point is that one is originally filed by the suitors at that point license rights were conferred to middleton it was only after the filing of the application that the application was transferred by the suitor's sukkot but before that that application falls under clause four as an application then pending and that's how license rights are confer ways to construct of the agreements than was done but the fact is the parties chose this particular language and more importantly in one thousand nine hundred two suiters and mr middleton's company executed an amendment the purpose of which on its face was to identify patents that were the subject of the original license grant and under iowa law construction that the parties themselves give to an agreement in things just like the one thousand nine hundred two amendment are supposed to be the best guide to determining what the party's intentions were and again under iowa law it's a cardinal rule that that is what the court is supposed to look at the parties  agreement had not done so your honor that's putting the cart before the horse in our estimation in other words the court said here's what i conclude the one nine hundred eighty seven agreement to mean and now look at the one thousand nine hundred two amendment and because i find it inconsistent with the construction that i've already given but in this case as you characterized the cart is an eighty seven agreement it did come before the horse in one thousand nine hundred two is the entirely right to look at the eighty seven agreement first and find out what it means and then decide if the ninety two agreement is somehow out of harmony with that your honor what we would contend is that everything should be looked at as a whole certainly the language of the agreement in florida and the good he did consider he did your honor he didn't ignore it but what he said was because i've already decided what the one hundred eighty seven agreement means i no your honor he said that it's not mentioned because it didn't exist and in one thousand nine hundred two the parties were trying according to the district court to introduce a patent the didn't exist in one thousand nine hundred seven as part of the license grant and what the district court judge said was that can't happen because i've already determined that the one nine hundred eighty seven agreement is limited to applications existing as of the time of the agreement when the parties themselves sad know the five one four pat is part of this original agreement with three m says what the agreement with the a member is really doing is simply broadening the license screen our response to that is that that's not true because well in the first instance what the district court found was that the eighty seven agreement is loose limited to applications existing as of the time the agreement was concluded and then the district court went on to say the ninety two amendment can change that that is what the district court said the way we read the ninety two amendment especially given its facial purpose of identifying patents rather than adding to them the ninety two agreement is in fact remember it is the party's construction of the one nine hundred eighty seven agreement to the effect that the five one four patent which resulted from an application owned by the suitors was part of the license grant albeit even though it came into existence after the eighty seven agreement was concluded if these seven agreement licensed to carry awesome with all right then why does rights or honor which is different than an assignment so souter was still the owner under the eighty seven agreement and could transfer that ownership to another party albeit subject to the license rights that he had interest in the patentee the grant effectively all rights to the exclusive licensee but the ownership and what's recorded in the patent office records is still in the patentee as opposed to the exclusive license honor the do the final thing that we would argue is that if this court is to find that there is something at least ambiguous on the face of the eighty seven agreement that it looked to the ninety two agreement and look to the equities to reform the contract making it consistent with the party's intentions i e that the five one four patent was indeed a patent ultimately licensed to perry austin and thus the middleton three m has said a couple of things first of all that we didn't ask for this release below and secondly that reformation can change the language of the contract and our response is twofold number one under iowa law a reformation is not a remedy it is a tool the courts use to give meaningful construction to contracts that truly reflects what the party's intentions were at the time the time track was entered into the second thing as far as as far as the second issue is concerned your honor  we're not asking that the court change the terms of the contract we're asking that they construe them using this reformation doctrine again so they are consistent with the with what the parties truly intended as far as the equities are concerned i don't think there could be a serious federalist james i'm pretty six extensively in that there are other parts of the amendment that did change rights as between the parties but as far as the patents that were being identified because that's a term that's used there they were simply identifying the patents that were part of the original grants and that's one of the reason why one of the patents that they identified already had the application for that patent identified expressly in the one nine hundred eighty seven agreement if the purpose of the a man were truly to expand the license right there be absolutely no reason to identify that other patent it wouldn't be necessary the only explanation is that the parties were truly trying to quote identify the pa modification in some sense of the eighty seven agreement as far as other provisions are concerned but it does several things not just modify it also talks about identify all rights to the patent to sukkot and this court has made it crystal clear you have to respect corporate formalities and if you for whatever reason assign it to another entity that other entity now owns the patent and middleton has agree that su own the patent at all relevant times in fact sukkoth managed the re exam sukkot it's been the only owner of the patent since april there's no confusion there's no issue on that and i wanted to follow up on judge laureates of questioning if we look at the transfer of a lot of rights but there's at least some six year it's clearly an expose of life and he's doing everything can to say i'm giving you very important very significant rights then on april third one nine hundred ninety after saying that in the eighty seven agreement he says th included somehow in the eighty seven agreement which it is not because of the plain language but had it been mr souter could not have gone to the patent office and said i am now giving the entire right title and interest that there's an inconsistency when someone uses that wide ranging all encompassing phrase in a sense he's saying it unencumbered there's no bundle of sticks i have everything and so we think when you when you look at the record in the case of kings of subsequent since yes your honor what i would say though here judge larry is when you tell the patent office i'm giving the entire right title and interest that gives the impression it's unencumbered that gives the impression i have everything i have every single stick in my bundle there was no qualification there is no difference or any evidence in the record because i've certainly never seen someone file an assignment with the patent office and articulate a whole slew look like they have already been granted was there something in the record to see the language they use is inconsistent with the normal process that you file assigned that's desperation you know judge moore all we have on the record is that in the eighty seven agreement they use sweeping language all rights which shooter may have under his license or patent rights all right are hereby transfer that very often and then to the patent office he says the entire right title and interest is not going to suit coats we see an inconsistency in that language your honor but that's where it ends with what we haven't had experts testify ownership rights are different from my right your honor the only thing i understand is well your honor what i would say is generally speaking of that makes sense that you have to sign it and there's language to use in assignments and is there any obligation to clear the obligation to in your honor what we're simply saying is when you say all rights which souter may have all right are hereby transferred to periodic that's what they say on page three that's sweeping ownership and title that's a pretty thing which is the time to figure out what we're saying is for purposes of standing and for purposes of contract interpretation and looking at the circumstances surrounding this we believe there's an inconsistency when you use sweeping language in the eighty seven agreement and sweepingly is for the p t o and those appear in a consistent circling back to where we are the key issue in this case is that after april third one nine hundred ninety s no matter what we do with the issue that we're discussing the matter what mr souter had no rights none whatsoever so whatever mr souter does after april third one nine hundred ninety he's now talking about something for which he has no rights is talking about the five and four patents he is now talking about a patent for which you have absolutely no interest literally no interest of any kind because we know that he created eighty seven agreements seven agreement had clued the five fourteen that your honor i don't think so i think what's going on is the eighty seven agreement had the following eight words and this is what they're focusing on here they worst suit or has an application for pat right pending those are the eight words and that's what we spent most of this oral argument and in just ordinary plain language if someone said to someone else i want to tell you something souter has an application for patent rights pending there is actually no confusion no one says what does that mean five years from now souter may have an application for pam writes this i know i'll say it again souter has an application to souter still a party to the a t seven agreement therefore he could speak to his intent in eighty seven in the ninety two agreement well your honor what we're now in the land of is someone's into his intent five years this is not the negotiations this is not discussions this is not conversations this is not letters it's five years later and after he has relinquished all rights in the five one for pat and we think that means it should be of almost no weight and and one of the parties that said five years later that they said something about this agreement from five years before that was very helpful to one of the parties and the discord said no i'm not going to allow that and the the supreme court of iowa said yeah that's irrelevant it's just t no there's no ambiguity you don't look at this and say i think that might include the future in fact when you go up to the above section they say may in the future they use different stages very different language they say or any time in the future may have a right if they want to talk about the future they say any time in the future may have the right so just more we don't see any confusion whatsoever which means we're finished and party can't five years later say i'm going to amend my eighty seven agreement and try to call it identification if the eighty seven agreement is crystal clear that the present which means you carved out patents that are going to be filed in the future and while there are applications you reserve t seven remains or it's assignment like the we think the strongest argument is the phrase souter has an application for patent right pending is clearly present it's not reasonable to read that as included in future and so we're finished we think we're just finished we don't think you need to dive into the one nine hundred ninety assignment or the one thousand ninety two amendment when it this crystal clear but when you take a look at the assignment you do notice that the license agreement had created time when there is a future application and during that period of time souter reserve the right to take that out of the lessons agreement and what's interesting is that's exactly what he did m the third one doesn't yes and i have and what i would say your honor is if we take each of those phrases and we asked the question all right any divisions now owned by souter is that clear that at the present yes is there any reasonable debate that is not the present no how about the second phrase or under which souter now has the right to grant licenses is that the present is there any reasonable argument is not no and then the third phrase souter has an application for patent rights pending is there any reasonable argued that's not the present no it clearly the present could they have in another way used the word now the third time yes they could have but the fact that they use those eight words souter an application for patent rights pending it's so clear that at the present that we don't think they were required to change those words and use the word now and the fact that they somehow didn't use the word now creates a problem for them and we think word now has been rendered to purple let's take the word now of any of the other half of the second souter now has the right to grant licenses you agree that if we take now souter has the right to grant licenses and you would argue that is preference and only it doesn't apply in history souter's future rights to grantley correct well your honor if my entire i don't mean to yeah i don't know i would say that if if we took out the word now there would be an argument about whether it's focused on the present and i would have to look at the whole phrase now has the right to bret michaels of souter had the right to grant licenses you would say that we think that it has your honor implies the present tense so read in context and they have to read together she can't just focus on one word that's not reasonable and if you focus on the eight words it's has an application or pet right pending and the phrase has pending can only be interpreted as current and if you wanted to go future you now has is obviously present you see has an implied present tense now has obviously present you see have implied the present tense had pending crystal clear and judge more it would be a more challenging point if it didn't say has an application at right pending but when you if you if i just say to someone any reasonable person someone has a patent application has an application fan right handing we believe those two words has been pending are just as powerful as the two words now has or now and so it's the combination of the eight words that make it so clear and so where we are is we think the district court was correct that this is crystal clear the gist of what was correct in not allowing the ninety two amendment to modify especially since they no longer had any rights and we think there's no argument for reformation because reformation would involve showing there were some mutual mistake and they would have to show the mistakes based on a real agreement that is other than the eighty seven agreement and they are not providing any deposition testimony any writings any discussion surrounding hundred eighty seven in which there was some real agreement in the record and then the real agreement has a mistake there's no reformation argument any time here because there's no evidence of a real agreement this court is meeting very clear over and over again that for standing you have to show an oral or written agreement of some kind and for this appeal to satisfy their burden of proof they have focused on the eight words souter has an application or pat right pending and if they fail to meet their burden of proof for those to focus on mr gross's response to your question judge jury about whether the term now plays any role in this appeal his answer was i don't think so in other words the term doesn't matter and we can just ignore it we are pending supply all the force now does in the other costs no your honor again we would contend that describes the status of the application as opposed to one that has has not yet been filed yet it's not pending or has been filed and withdrawn i pending so it's not a temporal words describing the status of the application mrs jones an application at this point that's true your honor the point is though that that language is broad enough given the absence of the word now to cover this one didn't say that's true your honor it didn't say that but it did selectively omit the word now and we think only party that could have clarified or identified the scope of the license grant sukkot couldn't have done that because sukkot wasn't a party to the nine hundred eighty seven agreement that's why mr suitors name is on the one hundred ninety two clarifying amendment and not sukkot so he certainly had the ability to say in one thousand nine hundred seventy this is what i meant he's the only party that could have done that and under my one law practical construction is the best indication of the