this case which was resolved without the benefit of discovery or jury was it my client was entitle to a half point percent royalty on all sales of the product which  specifically to the patentee completely eliminating the rights i have two other kinds of cases which i do see repeated first which is that a subsequent licensee who then alienates their rights loses the right to litigate and the other kind as is that a subsequent licensee must bring in the inventor as a name to party into the lawsuit this court recognized in an arc in his incorporated versus mer industries nine thirty nine federal second at five fifteen seventy four the act of invention itself invests the inventor with a common law or natural right to make use of sell his invention absent conflicting to the retention of his right to be paid for this invention and that should not be l w r c i could not receive any more of an elder view our city received when it received it from li in execution and in furtherance of the employment agreement the employment agreement states there is a five point five percent royalty on each of these far off in exchange for that twelve sixty six twelve seventy one consideration was not actually exchange asserts and this contract does not speak otherwise that he has never received anything for the use of his invention so absent the assert that the defendants improperly conflate that with somehow that being the consideration that the bottomline is lighter wise would not give up this patent which has made hundreds of millions of dollars for these companies unless he was going to get something and he has received absolutely nothing and we have repeatedly as a servant that to the district court well without the benefit of a jury trial without the benefit of discovery the court latched on to some documents which were on its own with an authenticated by the defendants to which we asserted was an improper business records exception because the person mr bernstein who authenticated them had no personal knowledge of what's alive and that the court with out a notice or the opportunity to respond converted that matter into a rule fifty six motion for summary judgment way round and leave him with extra times my name is laura carroll and i'm the attorney for six hour was one of the defendants in this case   submit a declaration authenticating them to the court what i wanted to address briefly is the standing issue and the unjust mr lightener wise when he executed the assignment in two thousand and six that's the document that that appendix sixty four  held by both this court in the supreme court to constitute conveyance of substantial rights leaving the inventor or whoever the predecessor owner is could be the inventor could be an original as what mr lightener wises counsel keeps talking about well that i retain his client routine and the royalty right we don't even the content that's accurate what the royalty described in the employment agreement is the form of compensation the transfer in the assignment doesn't say i'm assigning these rights but i'm keeping it while to right is so that some kind of right you c pursue against infringers instead hit the compensation he agreed to was a royalty and again look at the employment agreement which was attached to his complaint so there's no issue as to city in they had agreement he's not getting all royalties contrary to what he says in the brief he's getting royalties at a certain percentage on products made by l w r c the other come predecessor company and he's only getting those if the company's making a certain amount of profit and there's also a net calculation so it's not on gross sales that there's a whole lot of factors in there so it's a it's a very conditional type of will you get anything i know he's complaining he hasn't got any money we're a nonparty we're a we're not involved in this corporate structure we don't know if that's the case or not but what he was getting is a form of compensation that's what he was told he would get if there were sales and if l w r c was profitable he did not first of all if he's saying it was ill he says now it's illusory he would have to it was an illusory at the time it was not kind of on the come i hope i will get money because i hope you'll make products and i hope you'll sell products i'm talking about the consideration alone is deemed to be sufficient that also segues into the contracts that mr fishman will talk about which it and in fact there was ample consideration in actually giving up  would require conveyance of a benefit by mr leitner wise in this case to six oyur is to court that deal with preemption it did in of in a footnote it did it said like it doesn't need to reach that because it likely would be structure matter why is this relevant to the panel well that's the distinction between appendix sixty five the assignment that that mr fein referenced in his argument and appendix sixty four that's the fundamental difference the panel takes a look at appendix sixty five you'll see that it's dated in two thousand and eight that's part of the transfer process and the sale of the assets that happened long after mr letterman left land  company in two thousand and six october two thousand and six that's the relevant time period for determining what if any rights mr leitner wise has to this five eighty one patent that at the time was at one forty one patent application fundamentally this case from out of your sea ice perspective percent a present one critical question to the court did the district court here in considering a host of agreements that but this report disagreed and and respectfully b r c i said it's this and it should as well for four reasons first there was no abuse of discretion at the district court level the district court consider the declaration of kevin bernstein who's a corporate officer for both riff tack and although he r c i mr bernstein authenticated the contracts that are kept in the ordinary course of business at risk texas offices and these contracts were produced to the court as they are kept in the ordinary course of business the district court judge hazel pointed out and relied upon the fact that mr lechner wise did not submit any opposing declaration with his opposition papers before the district court now mr letter arrives on appeal has argued this dovetails into the notice argument he makes in his papers he argues that he lacked notice that the district court might convert this motion from a rule twelve motion to rule fifty six motion he makes that argument despite the fact that the r c i captioned its motion before the district court as a motion to dismiss or in the alternative a motion for summary judgment he makes this argument despite the fact that l b r c i submitted the declaration attached to the motion to dismiss along with the contracts and he makes this argument despite the fact that he or makes the same arguments before judge hazel the district court that he makes before this court he argued there that the court should discredit the declaration he argued here that he argues here that the courts discredit mr bernstein's declaration these are the same arguments and the fact that he made the same arguments below undermines the notion that we have a notice issu we have a series of documents and i'll take a minute's walk through the documents systematically that fundamentally form the foundation of his exit from meitner wise rifle company and then you'll see these documents were executed on the same day with the same  notary public authenticating the signatures of all the documents and forth and finally and it's an issue that i don't believe the district court dress but it's an issue of law that this panel can address the novo and we've addressed it in our briefs which is the statue of limitations issue these contracts or these rights are from two thousand and five or two thousand and six we're talking about a contractual right to a royalty payment that mr later rise himself alleges he was never pa at any point in time so under the discovery rule he had to bring that claim assuming virginia law applies and that's the law that the district would apply within five years he hadn't even bring this claim within five years of risk i don't understand because your friend who disclaimed knowing a lot about the details but said that their work their will to payment was conditioned on a whole bunch of circumstances so if that is the caves then it could have been five years do you have a requirement asked and so he would have to plead in his complaint facts that sufficiently show that he did an inquiry he's an inquiry notice that he has to bring so he never asked certainly he has a plan which is required to do one of the statute of limitation stress prince so if it if it's ok with the panel will just take a second before i lose my time to to walk through these agreements on what systematically they start an appendix one forty one which the terminations letter that i believe dr chen referenced and in his questioning to mr if on appendix one forty one itself references four other documents one of which is the assignment the miss carroll discussed before the court the other is an equity purchase agreement which forms the foundation among other things for the consideration that mr layton wise received upon his exit from the company you'll see this is a privately held company there is no open markets that securities and mr leiter w receive one hundred ninety two thousand dollars for his exit from the company that's part of the equities purchase agreement that's at penn it's one fifty six you'll see just focusing on one forty one for a second but there's a release in here and most notably about five lines from the bra of the bottom mr lightener wise releases and i'll quote i'm starting to words from the endelman right one two three four five points from the bottom all claims arising all of your employment and all claims arising out of the employment agreement which is itself a capitalized term we can go to sub i at the in the middle of the page to see that the employment agreement is defined as that certain employment agreement dated april e said of the company on page one forty four your honor i'm looking at one forty three i see ok ok and you'll see also that you where i was going to go next questions that have repeatedly been raised by this refreshment are issues of fact to live there has never been any discovery and there has never been any  the contracts which he had in his office were still he has his office was broken until his office was cleaned out he never had a copy of any of these contracts until twenty four jane when they were discovered by an immigration attorney who was working on his case and found a copy of his employment agreement in his in his file  employment agreement specifically states that his right to these royalties not only other compensation but his right to these royalties shall survive in the employment agreement this they have j patrick ryan who was the signature through so many of these documents live sixty miles away is a little bit documents but instead mr bernstein who had nothing to do with this execution of this document says that while i was in charge of a company to work some company that's related to it so i get to make a business records declaration that's something i know absolutely nothing about