no versus the department of justice appeal thirty one twenty one tell rosa version office of personnel management and appeal five zero five five wilder versus united states on our argument list will he argument first in appeal twelve sixty nine from two thousand and eight heiko health care versus ethicon mr wintringham good morning to you welcome to the court please proceed exclusions one pertaining to specified business units that are not at issue here the other pertaining to past which are related to pending handset cations related to pending litigation in addition has to do with the meaning in this context of the words related pressure but there is no way this that if there is a schedule that is not included with the contribution agreement according to the section that it benefits that schedule that schedule would include a list of pending litigation is and nothing the reason we say it would affirm or position your honor i didn't mean to interrupt or the reason we say it would have from our position is it would list pending litigation as that's what it says it would do as indeed the settlement agreement lifted certain pending litigation the patent rights issue  have a patent family that at the time of the contribution agreement had only applications nothing in the patent family had matured into a patent therefore there were no patent rights to a certain a pending litigation so even if you were provided with a list of pending litigation litigation our position is that does have an offering to a patent practitioner that means clearly the past or certainly geishas relate to the pending litigation where else could relate to the pending litigation those in the patent family why because you turn to the patent family and you look to see what the disclosure say because they have gone disclosures things there stated in the file history may impact the scope of the claims as they are being asserted and interpreted by the court and indeed determinations by the court may impact the validity and scope of course recent was that be close there was a settlement agreement including a covenant not to sue which included these applications under come to necessarily they related to the pending litigation because they were part of the settled that was the another to do so it seems like those additional patents should be considered rule a kid who litigation because they were part of the resolution her ability in the settlement agreement let's see what happens under that construct eight hundred plus patents without any patent protection i was doing the nature of the company and the business to find is research and development into medical devices so they're basically transfer all their technology without protection whatsoever that's one of the reasons it's completely great delaware law for interpretation or contract because the contract is under delaware law that's right and second circuit l the meaning of each and the intent of the three different party i think that the agreements can be read i don't know if you what you mean by together but can be read and divide by friday could be one of the meaning of the other the contribution agreement but as i understand the thinking of the magistrate judge in the district here they consulted the settlement agreement to understand the meaning at the settlement agreement to see which litigation were indeed pending that's fine it's when you use the suddenly agreement to set to construe what related to means to say op but the parties entered into this covenant not to sue and that necessarily means that all of the patents subjects come in not to sue cannot be transferred that was what was improper and that's what leads to these absurd results as well that are inconsistent with a contribution and we can make a settlement agreement and the kind of machine agreement operate effectively maintained that's what the settlement agreement says and indeed that can be a present transfer which is exactly what kind of mission agreement does so they're both consistent i'm not suggesting that the patents that are involved in those litigations work were transferred there not just all these other patent rights that should have gone to have some evidence of what patents u s surgical corporation had it in its portfolio and how they matched up with the economy and products and we have zero evidence in the record on that issue so the argument that none of the patents would have been transferred is without having represent poor at this point to your point if they have the burden they do they do have the burden and they they didn't they don't prove that the intent of the parties to transfer u ses business was thwarted by this provision and the intent of course was not just i mean this is also they're focusing on just that the patent transfer there are many other things that were transferred as part of this agreement machinery office is that there's no record support for his assertion that it would be noticed or read in the agreement because there are no other captains do you understand judge robinson to have ruled that there is no jurisdiction or that her dismissal was based purely on the discretionary judgment that this case was not in her view appropriate for declaratory judgment treat i think her ruling is why it is fair to characterize your position as charging the other side not with necessarily lacking ownership in the pat would argue about whether that dismissal should be with or without presence but at that point in time tyco chose to go forward and to continue presenting its evidence and to rest its case hoping but not proving that it owns the second suit would be thrown out here quite quickly if the issue is that at the current has been put to the cost of marrying a defense warrant and might have to mount the beginning of a defense t judgment in the first case and failed to prove in title to those damages similarly here the distinction is typing went to judgment we laid all of our cards on the table we cross examine their experts they know where the and which were transferred it would have to go ahead and then a fight well that's kind of process in existence which the parties were unable to even catalog and it says that right in the suddenly agreement they have to attain samples of those products they'd have to determine what methods of manufacture existed because you have method claims in the not to sue and by the way we don't have access to their proprietary methods of manufacture you don't have to look at the file histories and you have to determine whether or not what the scope of the claims are whether or not there is an infringement without the benefit of the court's assistance which is the only problem is can there determine when there is infringement and by record evidence it can't be the intent of the parties that they intended to give a cut enough to suit and when those plans which were infringed would be hold back and those which were not would not going to the better to prove ownership now we proved ownership it's proven by the  at that time and i have the testimony and he had done a farce that there was a transfer from the us circle to kendall which later became type of healthcare they knew about this transfer as far as the complaint is concerned i created so much law i didn't draft it doesn't matter i'm still different than will the pleasure of cases that this court decided that says ordinarily dismissal should be without prejudice in fact again repeating the pittsburgh case in june as his part recognises this universal understanding it should be normally done without prejudice as say that it's we defeated their summary judgment position on the validity which is their real position which are going to try to keep it here so understood but the point is of course we go back to the same court in fact if we're right on this appeal the courts where you said we resume frogger we left off if we're wrong the only thing