over in contemporaneous documents and in his testimony on the stand a trial that his provisional application filed less than five months after he left could be teens and invention as the contract defines it and at the cane the same invention that invention was clearly subject to the assignment laws and the district court should have so rules of the court didn't analyze the evidence because it incorrectly believed its hands were tied because of a jury verdict on a different count count s favor on count one that mr s did all that was needed to trigger the assignment cause namely by conceding an invention and taking affirmative steps to reduce its practice within a year of leaving committee so with no actual jury finding to forclose it the district court heard it not considering the evidence clearing on count one we submit that requires a very least as they cater and remain and but because the evidence is completely one sided we do think this is the and subsequently included in all three of his patent applications clearly qualifies as an improvement and you don't need to take our word for mr x himself repeatedly characterized his device as an invention and he and his expert testified a sixty six so it's clear we submit and this in any meaningful argument on the other side and mr s's device and the patent applications that resulted qualify as an invention under the contract the contract therefore assigns the invention to co end as long as mr escott omitted steps to refuse the invention to practice either while he was employed or within a year afterwards and here before we even get to affirmative steps there is a constructive reduction act this as a matter of law when he file the for n e a provisional patent application in march th there is a jury instruction in this case that mr x himself proposed and the judge gorton gave to the jury that says that production practice happens when later they specifically incorporated for nani a provisional by reference and they claim priority activity that means they must contains an invention that's why they can claim the benefit of the earlier finally began that of course defending it on appeal the point is the jury didn't make any findings whatsoever of that or the declaratory judgment claim one there were questions on jury verdict form that might that would have had a bearing on count one those were questions six through eight of the jury didn't answer the district court on its own motion and over our object told the jury not to answer those questions and so the result is there is no jury finding whatsoever as to whether mr x took affirmative steps an intentional act is nothing prevented counsel are are you taking the position i don't think i heard you take this position but i want to be clear are you taking the position that the court could not rely on any jury findings that it determined were made when it when it came to the equitable count that it needed to start over again are you taking that position so in the context of this case the answer is yes ch as there is no jury finding that is germane to count one the declaratory judgment had but if there had been did the court have discretion to rely on the jury finding that's that's my question oh i i misunderstood it certainly i mean a we don't quarrel with beacon theater right on us obviously of the law if the jury makes a finding of a fact that is common to both a legal claim and an equitable claim then obviously the the the court is to to rely on that factual finding when deciding the equitable claim our point here simply is there is no such there couldn't be such as what's now been in like the stick in the record now just in one it's of caution if the court disagrees with me we think such a finding is not supported by substantial evidence and would have to be reversed because the evidence is overwhelming did and in and take affirmative steps to reduce its projects and such people let me follow up on them what you were practice as the district court refused to do a jury to do that so we don't have the jury fighting as the question with respect to the district judge's reasoning is is there some kind of implicit finding based on the jury's verdict on could have reached that out while finding that there was indeed an invention that was assigned by operation of the agreement that's why i question six so if you were there and we submit that you know that they should have been answered at the times they were once the result is there is no jury here is at the very least to remain and not for a new trial and no one is there isn't really a need for a new trial the record has been made all the evidence is you think what should have happened is the district judge should have exercised his equitable off already unfettered by any degree verdict because of course there was no jury finding relevant to count one and make a decision as to whether the contractual required the requirement of assignment was was met in this we do mr breached his obligation to disclose it settle and the answer is no it is an implicit in that that that the jury within their prerogative found that there was no invention no your honor not not in the least and mr ashton on page fifty six and page fifty one at mit's that is not implicit because there is another way the jury could have answered that question which is to or couldn't reach that answer which namely is he had an invention but he disclosed it and there are lots of ways to ensure it could have found that obviously we thought he had breached security but the jury could have thought that since he was the member of the  media because of media in this part of the world that would have been on notice of the published patent application also even if we were to assume that the jury believed that mr ash didn't make an invention while activity didn't and that's that nothing to disclose your exact time that doesn't mean it didn't take even the evidence is manifestly overwhelmingly clear that that's the case so clear we submit that judge thompson even if you disagree with my answer to your question and you think the jury didn't conclude that it was an invention that is not supported by substantial evidence contested case that occurred over the course of three plus years before judge court with new york with motions for summary judgment with numerous motions that occurred and  in no circumstance kind of be said that the jury did not was not presented with all of the evidence it needed in order to make it to terminations and a key point here there were two main piece point again all of the facts all of the issues all of the evidence that the judge you there allowed to be admitted or didn't allow to be admitted and to question the credibility actions special verdict war it was video games and even after it was adopted they came to the front they said we want to change it the day it was to go to the jury judge court and thought about it and said ok i'll change in your favor one more time and then when they challenge it again and it's in our brief your honour's can video and said yes this is fine this is how we want it this is the correct order this is what's happening and in part that's because counsel so you're saying that the contrary to what your brother just said that the jury form that went to the jury was ok the final form was ok i had the appellant yes your honor in two instances in our brief and i'll find a page if you need me to the judge asks can video here measure and patrick arends is this form ok you approve this form and then when they come back and argue about it later and i was lead trial counsel you know they said judge barnes and what are you complaining about in the transcript is there i gave you the form you wanted this is the form you wanted and you really litigate a factual issues  claims so even though we could have gone contrary to the jury verdict special jury verdict form judge court decided it wasn't appropriate that the special verdict form set out clearly what the issues w and what they needed to find he gave specific instructions as to what an invention constitutes an invention and the jury found no no duty no duty no jury he didn't fail to disclose anything and the bigger point here you hidden it's quiet you have all these ideas you do it use a place marker mr ash did do that was not sufficient in fact it was admitted at trial by the evidence that he could not have developed it by himself so it wasn't reduced the practice it wasn't anything and was assigned to invent clothes and spent the money time and other experts and had three other inventors necessary to reduce it to practice have a better idea it was different there's no claims in a provisional application they come in the non provisional application and then close owned it and over and over and over when pelley asked said that clause is a necessary party i don't know pat jurisdiction over event close and if they had sued in california which would have been the only place where they could have sued ventless the court would have immediately ruled the coast terminations assignment invention agreement as illegal under seventeen thousand two hundred which is in the briefs as well that that they refused to allow them close in repeatedly told the judge gorton that they were not in a dispensable party but more importantly i think that the issue is that question if the jury did not find that there was no invention do you still win i guess of course that's what they did find they found well we don't know what they found out they said did he break gerry instructions says did mr s breach his duty to disclose a particular invention end within a year of his terminations and the jury found no he didn't so he did so i'm going to ask my question again because i don't think i got an answer i may have but i'm i'm a little confused the question was if the jury did not find that there was no invention can you still win yes ok can you explain s patent is owned by then close it is not mister wood was just required though the district court in considering the equitable count to waive those facts i thought the district court's conclusion was that the jury found that there was no invention and if the jury did not find that don't we have to remain and absolutely not the folks who weighed in the way and wasn't already made whole by whatever means monetary really by assignment by whatever means there was your honor i say your position is that a finding on c s four and five that he breached a duty to disclose confidential information that there was a breach of that that doesn't necessarily mean that it was an invention get to the jury yes yes and numerous people from bank lowe's and the other inventors testified and presented evidence and those issues were weighed by judge gorton in a lengthy lengthy you know as i mentioned three in a house a very close and a motion practice at all around the issue of indispensable parties yes several we raised it at least twice don't need gun close we don't need the other inventors repeatedly to the court your honour's and now they're trying to switch the tact and say oh no we get them close this invention that they spent three years developing and ten million dollars you know developing medical tax is the is the st question i answer because it's still your answer still was not clear to me in the reason it's important is because it depends upon the set the standard of review that we would employ yes in other words if there was a valid objection to the jury form then it's one standard it was no objection to look at plain they are so that's what i'm trying to figure out even if it was a last minute objection was there an objection was the jury was special to explore both sides submitted a special juror verdict forms the court adopted essentially committee when it was going to the jury overnight com came up with another objection to the special jury verdict form it was adopted by the court they asked mr and mr macy do you agree it is ok now they said yes and it was submitted and only after the jury didn't come back with the verdict they wanted because they wanted the patents they thank you for their revisions that were sent to the jury and they were upset because they didn't go the way they wanted now they want to reweigh everything else and decide that they were made whole when in the puerto case it is very clear that an equitable claim is determined by the judge was somewhat made whole were all the facts weight was all the evidence weighed and of course the answer is yes judge gorton was very thorough often ruled against me and you know we have had is they had their game court their nine days it would be in that little little matter so i assume that there wouldn't be a jury but by the same token if the jury thought that committing was made whole by its verdict and the chuch moment of almost eight hundred thousand dollars not  dollars then the entire matter would have to be remanded because part of the damages is the alleged pattern assignment so that doesn't work you can't have your cake and eat it too you can't get a monetary verdict that supposedly made you whole then argue against the special court for it that you yourself wrote and then go for a double digit it makes no sense and it's not equitable judge orton well made the finding that the declaratory alou faction shouldn't be a separate ruling because the jury had already made its determination that there was no breach of that provision of his agreement so there's nothing for judge gorton to declare because there was no breach of that provision so hot you can't get from step one to step three but they're going to step two and step two necessarily is that there has to be a breach of the invention assignment provision the jury said no so if judge the lord changes his mind he would be overruling the jury's verdict but there was no just just just because they have an alternative argument your position is that there was substantial evidence which supports the verdict yes and could you just briefly describe what you're saying that substantial evidence is so substantial evidence provisional application is a placeholder that's all it is i can file twenty tomorrow they're not published they disappear after twelve months if you don't come up with a working embodiment of your quote unquote idea i can find  twenty tomorrow it's going two hundred and fifty dollars they disappear they're never disclosed to the public they're just things that placeholders so that you could relate back when a non provisional was filed when then close file the non provisional they were for inventors because nothing worked it was just it was a placeholder it was an outline maybe maybe not and there were significant changes and that's when the claims are made which then not this for views and then it's decided whether or not  clarify for me the the contingent c language that shows up in the in the verdict if you are if you answer question three yes proceed at setter was it that in your proposed jury instructions who put that language together the court put that language together your honor we had preserved we had filed a written objection the day before and this is page five hundred and sixty where we set out what we thought was the correct logical arrangement and it had no precondition for the answering of procedurally sound so the idea that there was any kind of waiver of the objection to the verdict form is simply unsupported it is not true what so i would like to say something about the point that the notion that other people invented something a put it perfectly she said quote we don't know what else is absolutely right we don't know what the jury found out with respect to assignment of steps to reduce invention of practice because they didn't answer only questions on the for its form of giving us an insight into all right will take this case under advisement i think the cliffords attention thank you counsel that concludes argument in this case attorney fleming attorney very a huge disconnect hearing at this time