plaintiff's under the rule of independent wireless or barring that that under rule one thousand be in equity in good conscience the case should have been permitted to proceed in the absence of u that the authorities starts with the region so the university of california b lily which is a federal circuit case where and in there the this court held that the question raised by the case was whether it was a suit that has been brought against u c and they said that the court said they were aided by the supreme court's guidance in united states v peters and noted that the th amendment simply lily the state was the one who initiated an action in a different jurisdiction and the issue then was whether and then and then you see said that claim sovereign immunity from different venue but but but importantly in the regents case regents did not find waiver period full stop regents found based on the supreme court's united states v peters decision that a state cannot be made a defendant to a suit by an individual but it remains the duty of the courts of the united states to decide all cases brought before them by citizens of one state against citizens of a different why given the obvious principle behind stopping him does it matter whether a particular party has the label plaintiffs or defend it as opposed to the substantive point to that party come in and concluded sovereign immunity applies to an involuntary point the point is not to subject satirise unwillingly to the judgment of a court that's correct and  difference is that u t contracted with genset ics and under and by contract required genset ics to sue infringers within a given amount of time on pain of breach of contract and losing license they had paperwork so the argument that so while it's different than regions it is also similar in that here we do not have a state that is being dragged into court by a federal court and it had no say so waiver below we're not arguing waiver here we are arguing that they that there is no case that prevents a sovereign from being named of it as an involuntary plaintiff particularly where that state his contract did  and on pain of another party's breach required that entity to file a federal lawsuit for patent infringement and then when it came time to cooperate as they had at also contractually agreed to do they decided to stay out they did not take a position below about whether all substantial rights had been conveyed by bage they said they did not want to be joined as an involuntary plaintiff but there but there is no authority for that nothing about making  involuntary plaintiff in this case given the agreement which is not waiver but it is an agreement which that in the context the exclusive license agreement means you will not expend resources from the state treasury if they're named an involuntary point u t is not on the hook for money damages or any of the things that the principles that sovereign immunity implicates for the state none of them are prejudiced by prefer not to have them assemble such as what on the terry judgment you dr decker libel for a one million dollars and u t thinks i don't want that i've got a side deal with dr decker for all kinds of other whether they voluntarily retain their right or not or whether because of the involuntary plaintiff procedure that does not require them to become a defendant and that they cannot be prejudiced by because they agreed to do it  that those sovereign immunity cases do not control there is all of the cases say that if the state is a plaintiff's sovereign immunity that issue there might be other court went out of its way to say we are not finding waiver instead we are finding that sovereign immunity is not implicated because the state is not a defendant and this is not a suit against as to require us to say that it was not an abuse of discretion for the judge here to say i'm not going to proceed without you even at the risk that j really great weight to be given to the sovereign interest again even if the plaintiff loses the ability to has no alternative form because the sovereign interest that and the those parties that were trying to wear their parties trying to enter plead it wasn't fully an involuntary point of situation but to your point the important point is it was what the court held one thousand b didn't  rm the one thousand b issue because the playing to the plaintiffs did have an alternative form the alternative form was in the philippines and because of the international comedy interests and the foreign sovereign immunity interests at him until that are not at play in this case the court basically said who are we to say that the claimants shouldn't go to the philippines and seek to recover the money from this fund that was created  for these folks the claimant is not without a remedy it's in the philippines and in fact the place where the alternative pursuit of this remedy is is that the better one in law in line with our deference to the say whatever it is i who is two scenarios here are st of all you license for all substantial rights they do not challenge on appeal that they did not license rolls in if they had done so they could bring this case by themselves someone else to sue them not not to refuse to be the the patent holder if it's necessary under independent wires from that that clearly they don't want to be sued by the being adjudicated by federal court without their agreement to the extent there was two provisions in the license agreement i would point out that it very carefully what the u t did in the provision and this is on page of  and twenty six was they said nothing in this agreement shall overcome our sovereign immunity so then they knew there were other things in the agreement but they were clear engine senex knew both when it in or of interview agreement and when i but precedent has crossed that bridge in many areas that once you choose as university whether to participate in the patent system to participate in licensing income generation royal dues and over us of it you are on the same playing field as anyone else and the fact that you happen to be a state university rather than a private  not override all of these commercial relationships and although i've presented this you as a question it seems to me that precedent has crossed this bridge and i answered that question and the answer is yes you have waived the opportunity to not participate in anything involving the cults you are there only really two ways you collaboration in the context of an agreement that talks about filing lawsuits and in recovery and those lawsuits it's a pretty well known concept so i'm not i'm not convinced that therefore they have to cooperate immunity it's very important not to have a patent found invalid where someone who retains substantial rights isn't even present but they also looked at the other side the judge chain and also look that it's very important for them to have the ability to bring the suit and so there were two sides to argues i don't need to determine this because i've looked at the other parts of that factor because factor three is not just about multiple walks you look at rule nineteen factor three also includes the fact that you have whether it's a judgment rendered in the person's absence would be adequate and the court determined that no it wouldn't be adequate because you don't have your team involved in arguing as to what this patent i think you're wrong reading twenty one and twenty two i mean the courts th they're not going to decide whether there would be judicial stop but they but the court specifically found that one of the reasons that factor weighed in in favor of finding that that they were indispensable party is thing the court then collapses the whole thing into one factor not or no because if there wasn't that particular provision the court might not have even if there were sovereign immunity there the court might not have said you agreed to this specifically which the court did and given that it takes a clear error and weighing the factors for this court under an abuse of discretion standard to reverse i posit that we haven't seen that year and it hasn't even really been argued but i do want to assure my it's our problem it's university texas property and they retain the right of disarming the control the decision making over the property there and there are various factors that in the present is due to the changes going for that are listed in the record i mean we've talked about  their property to adjudicated without their presence that this is the nature of immunity from suit whether it's tribal or an us government or state there's a consequence and often in sovereign immunity cases that's the consequence if you look at the th circuit case cited by the defendant the th circuit has a number of cases where they basically say so aren't the consequence of sovereign immunity is in fact that someone will not have a claim in a court and so that does happen now there's a complicated petitioning claims involved here and we we are going with the prejudice was huge he maintains that under the constitutional standard in define the scope of the states or new unit is but one particular exemplification of that immunity and that it's a very broad statement but if you look at the case law we saw it in about involuntary plants and they're not a lot of  we saw in the th circuit case thomas and they all there's also hardly those cases basically are protecting the state from being forced to make a decision to initiate a legal action for driving at a time in place when they don't want to and the university of texas in this particular situation made that determination and the pleading her aflac that's what it's set now well no i think the proper way to originally brought us in was as an involuntary as an as  do think it's important and independent wireless to not involved there's talk about applying they want to argue that an independent wireless provider in the analysis of one thousand nine hundred b but if you look at the independent wireless case there's no mention of sarin immunity and they're also looking the way they did the way the court characterize it was almost a problem there's a problem for the patent owner that's too bad there wasn't an accommodation like there obviously has to be i think your honor i'd like to return to judge toronto's question and address it in the context of rule nineteen b specifically because i really think that's where they get which question is that pin intel and how at how life should yes and it's actually i think it is more important to the rule sixty b analysis because that was the analysis that it did before factor discussion and him intel and so the reason why though the reason that the reason that pimentel does not kind of tip the balance or are so heavily weigh in favor of not an abuse of discretion is because arguably the two most and important factors for a rule one thousand b analysis come out they were not coming in as an involuntary plaintiffs they were trying they were kept out it interplay their own claim but the point is not only were were their claims not represented by any other party in that case the other parties claims in that case were antagonistic to the nation of philippines claims that were absent so on the one hand the sovereign in the philippines was not their interests were not going to be protected in the suit and by contrast the the there was an alternative for all the case could proceed in the philippines and i think this is important the supreme court basically found that the philippines noting the comedy interest in allowing a foreign state to use its own courts for a dispute if it has a right to do so and the us courts should defer to that forum concerning the issue of how funds were recovered from president marcos should be distributed here there if anything pim intel illustrates how strong the case is here compared to how weak it was in them and tell where the sovereign had no one protecting their interests in the action and and there wasn't an altar and there was no there was an alternative forum for the other party could go to the philippines to press their claim there's no place for genset x to go and u t's interests are adequately represented for that reason that is why i think coming back to judge mallees comment that utah and university of utah case doesn't many way control this case although that was an inventor ship issue the end the issues were the same the issue was the inventor ship challenge essentially that could go forward with the in the absence of the sovereign did not matter under rule nineteen beer was a in the weighing of the factors was found not to predominate because the other parties in the case and the other party that was aligned with the university of utah also had every incentive in inventor ship not changing and would adequately protect the absence  interests just like here there is no finding below there is no even argument from baylor or from u t about what interest wouldn't be protected in the litigation with or without you take that no argument because the interests are exactly the same the claim construction argument about we might want to broader claim to searching for infringement in addition to the reason judge o'malley identified that of course if we're going to invalidate the patent we're not going to make any money either so we're totally interests are totally aligned that point actually is important for how why this case is different than this court's a one hundred and twenty three decision which did not which denied a one thousand be on a on a sovereign because in that case the licensee had only a field of use license and this court in the district court below said the interests between the licensee and the patent owner are not entirely aligned because with a field of use license e may have different incentives about arguing for claim construction then then then the pattern owner who retains uses outside the field of use here undisputed  field of use license worldwide every use there are no restrictions on the field of use and so there is that is a nother reason advanced in the papers and below for why there is no difference between the interest that genset x will be seeking to protect and you tease interest one hundred percent aligned and no other form of origin senators under this court and the u s supreme court's law this is what rule one thousand b was designed to address a situation where in equity and good conscious it is not better for genset excuse it on the sidelines because u t won't join when all of the prudential reasons for having the patent owner in the case aren't implicated here by proceeding in their absence their interests are protected the defendants can get the defendants can get complete relief and there is no alternative forum for genset it's all four of the factors weigh heavily in favor of allowing this to proceed in part to end that's where the contract comes in and or rule one thousand dollars beat the equities whether equity in good conscious to the extent  there is an equitable concern about beauty's absence you know tilting in the balance of not letting it go forward they should not be heard to argue about their prejudice about prejudice in their absence given the contract and while