am william beard and i represent the donald l robertson trust robinson trust respectfully request this court to reverse the district court's denial of its motion for leave to amend crosswinds for two reasons st as to the cross claim the trust pled and argued the dates which fall within the three year statute of limitations writers turning to the breach of contract wow four different versions of the policy were planned they were attached three of them attached to the cross crimes i will address the one thousand nine hundred and ninety two version because it presents the most plausible case of a unilateral contract between b y u and its professors the court determines that the two thousand ip policy or the two thousand and one ip policy applies the dr robertson would be a beneficiary of that either one of those i think he's yes your honor that the reason why all four of the policies were planted is because there was a dispute at the discord level of about which version applies to the cox two develop and so the trust has planned alternative theories and believe that it could be successful under any of those theories thank you because we're here on appeal on a motion for leave and it was dismissed by the district court we simply need to prove that at least one of those is  developed by university personnel are the property of the university similar mandatory term as to compensation the net income for distribution normally will be allocated to developers going to be given to the developers is that with that says that's correct your honor in fact it goes further to state that the percentage of the allocation under the ninety two dollars version of the policy it would retain fifty five percent for the university and forty five percent would be distributed to the developers and it's not just patented technology is technology developed by you know are the developers pursuant to their employment at the university the reason if it helped it helped me  you focus on the reason we're here and that is because the district court judge found that your client had not played the contract had been informed what the terms and conditions of that contract were but the consideration for the contract was and whether whether professor robertson had performed under under the contract that there was a failure to consider whether or not a b y u ip policy is a unilateral contract that stands by itself the district court was st concerned with or there has to be an underlying employment agreement to which dr robertson would have signed would have admitted hey i'm i'm a professor at b y u and these are the terms of my contract and the district court required that the b y u ip policy be ancillary to the underlying employment agreement and because the underlying employment agreement was not attached to or discussed in the the amended crosswinds the discourse there is no contract the court in his opinion said well i also will consider whether or not the ip policy is a standalone contract but there he applied express contract law and did not go further and analyze whether it would be a unilateral contract under utah law in fact utah law says that the relevant evidence of intent is usually in fact is what is required to be considered there you look to the language of the manual itself you look to the employers conduct and you look department or representations that's from the cabanas case the united utah supreme court all three of those types of evidence art pled as the i p p policy that was it in fact at the time t policy just like every university in the country there is a policy that exists and is published to the employees and over time it gets amended so we know that dr robertson received a copy of in the pleading itself and the amended cross claims that  development when you think about the the different factors that you look to to determine whether it is a unilateral contract you have to look not only to the terms itself but also the conduct of the parties b y u dr robertson dr should i have all through consistently throughout the pleading of this case and their conduct with each other relative to cox two treated it as if it is a policy the question i would ask is what is the possible basis for b y u to be able to make that argument it assumed ownership of the technology back in one during the time period of eighty nine to ninety two what was the vehicle for it to assume that it was the policy that existed in that time and the fact that it was amended later the parties might have agreed that we'll agree to go forward under an amendment but that would require those parties to make that agreement doesn't know if the fact that the underlying the as a card text specific task that requires the reviewing court to draw on its judicial experience and common sense in that regard the context here is is very significant because the the research events happened thirty years ago there is never an allegation anywhere that during that time period dr robertson made any kind of a disclosure to you the the litigation surrounding that started in the year two thousand and six and it was settled the pfizer case was settled in the year two thousand and twelve dr robertson had given a deposition in that proceeding and was familiar with what the issues were there that after a settlement was process appropriately took place in that internal process dr robertson was interviewed it was not until two thousand  robertson made an express claim that he had contributed but at no time prior to that had he asserted any kind of the things that would that would constitute performance under this under the any of these policies so now i want to talk about the big picture of of the context of the policies that are involved the entire purpose of the policies is edge intellectual property that is that that is developed up there at the university that implies that they will be aware what it is in order to manage it they they are they have created a technology transfer office that and entity is required to identify what is policy that expressly or implicitly requires dr robertson or any other faculty member to make a disclosure to brigham young that he or she is a potential developer and if  the the other thing that i would the standard that is required here requires the court st of all to do a careful analysis of what is included in the in the proposed cross  claim and that is a matter of what is included in those ten pages of material on the ten pages includes that includes the caption and the signature page when when one looks at those pages for the well pleaded facts it is far different than what has been argued here today in fact it was curious to me that that  robertson's trust currently alleges that it is the written one thousand nine hundred and two policy that forms the basis for the contract indeed paragraph the the that forms the policy that forms the contract then paragraph thirty three presents the alternative that it's the two thousand and one ip policy but if he's if he's alleging that the ip policy that was  not in effect throughout that period of time and at no time has he ever identified that policy as as covering that time period of course it so obvious that that it comes at the tail end of that but there's nothing in the complaint that would that would say whether that became the contract how it became part of the contract indeed there's no allegation dr robertson was ever aware of those policies there is no allegation as to how a how he performed his duties under those policies the whole idea of disclosure is that it's not simply a box to be checked that's what allows the university to fulfill its duties to protect and commerciali in fact you know the laws quite clear that that you that a unilateral contract is formed when a party excepts by performance all the material terms and what are the all something that has been constructed after his after his demise and you know that this is one of those situations where where not only was judge  shelby and if you look at page starting on page thirteen of judge shelby's well crafted opinion you see all of the questions that he posed that are not addressed he points out that this is a very a more focused on settled question you look carefully at the allegations and the factual basis really under rebel there there is it's not specified whether a contract was written for oral whether it was expressed or implied will he get is go to the policy because he attached i'm sorry well doesn't as a shelby was saying that about the eighty nine to ninety one period but there's no question about what the terms were the ninety two policy because it tested to propose them to comply that that's what the trust now attaches but it also indicates that that these these claims are gathered in fact to his employment contract but it doesn't say there's no allegation how they are tethered of what the what the connection is which employment contract is implicated and and how he performed his duties so under those if you focus on the performance question just for a moment the  allegation of performance is the one set out and in paragraph fifteen of the coin and that is the the e p enemy of a conclusory allegation that that  says nothing about disclosure says nothing about how he how he cooperated these these policies talk about how if there is a dispute among developers that they are required to submit that dispute to the university before any obligation to distribute arises how do you address  opposing counsel's argument about reliance c now he says that you know as general as the allegation with regard to performance performance as a condition precedent to the contract that rule specifically authorizes a generalized allegation of a condition precedent why is that rule you know that's that's a great question and i in that regard i think it's important to consider the impact of utah law as it relates to this because under utah law number one if you're an etching a unilateral contract you have to allege performance and number two if you're alleging any other kind of contract performance by the claimant is one of the elements required under utah law and so the factual basis for a conclusory allegation needs to show up in in in the complaint and it's just not there and in fact the the the idea that is if multiple developers are involved in a heap in a development that they they need to come up with that appropriate sharing formula and and these are things that that the whole concept of why policies exist and in fact that was what formed the basis for the technology transfer office working on an agreement eventually resulted in this being disclosed its eyes are dr robertson did nothing of the sort there words explains i am the developer as well and you should consider me as well he goes through in good detail about his specific scientific contribution particularly at page and thirty four dollars he talks about how he his laboratory notebooks provide the evidence that he too made contributions to cops too and while he was in the process of testifying on behalf of d he comes to conclusions wow this is the kind of contributions that entitle people to development ok well you guys need to know that i too made real contributions that the talks to development so is there scientific development and then all sudden the requirement kicks in and that you should be compensated the specific requirement about this well here is that the university can make a strategic decision about whether or not to patent but the way you have full control of products through and sorry mom so it's not a question of whether students disclosed to the the i p policy doesn't state anything about whether i think that this point about him being talked about in the meeting on june th two thousand and twelve when b y u was trying to consider who to distribute the funds to most out the mere fact that he was one