but tween now and the expiration jim and if this case is going to become moot and you know why should we spend a lot of time addressing these difficult issues when it's going to become moot anyway to point you god so there is more time than january and i think there are some citizens on the boat you know you've got a district court proceeding you've got a probably an appeal from that you know you're talking about a proceeding which wouldn't here that can be resolved by the district court we believe on summary judgment with no fact discovery perhaps an expert reports and they can't can be decided and the other point i'd make your honor is that if the proceeding under way where the court is is determining the issue of validity it may be possible if madam in brings an action in that english court to tell the courts there to wait it's a reasonable amount of time because the issue  being determined by the u s court so i don't think that the record here it is such that it's actually being moved so that the court should now decide they would bring an action because you didn't pay i mean why would they that would be the be the basis for an either that or the carter relief action that we are not going to pay yes but my point is that eight we believe we can get a determination by the in the september be that the district court decision would be a final judgment and that's the rub right i mean you didn't allege you didn't seek a declaratory judgment with respect contractual right and that's what led the district court to say we're not going to do this piecemeal even a judgment with respect to the wait you did not do it right there's no separate player do it no separate primary they will do it not you know separate presence correct but we did say in the complaint that that we did provide or interpretation of the contract which was then disputed and in the para tech case which i think is is is right on point here but the collector declaratory relief that was sought was only for invalidity and non infringement there was no separate prayer for declaration of rights under the contract nevertheless the court held that the district court that the contract was a question of the merits the contract issue and the district court had the full authority to decide that contract question on the on the merits as part of the merits and it would not go  to jurisdiction so i would direct i would ask the court to look at that case i think it's right on point it was no separate prayer release of the terms of the tech liberation of rights under the contract and there was no there's no need to do that and there are there are also a host to do that well let's concede that she could have done it if she wanted to that doesn't obviate what the requirement is in terms of pleading in order to establish jurisdiction yes and as i said i mean how would based on what you play you were curiosity here is there some other reason aside from the fact that you didn't feel like you needed to that is why you find a file a motion to amend the complaint with a second count for a declaration of what your obligations are under the contract if you successfully prove that to be invalid nor would stand out that the soonest reason to the case may clear his make clear that but it would have made it a lot more complicated right i mean there are other parties to the contract that that it had to bring in the english parties the other parties to the agreement no i don't believe so because you could have a secret declaration as to the contract doesn't include this yet or not and that would be done without the jointer of other argument yes although as we are here in the brief even if that's the case under the in sponsibility test there would be no requirement to join em or c because they have already conveyed the entire r british government an entity outside of this case would also be implicated and which he's talking about implicated in indicated the contract rights is that wrong she's talking i'm i'm quite sure about the license agreement between m r c and reasoning is too since they've already contracted to give all rights to enforce the patent and to defend against challenges to med immune and may even outside the field of use well if they were right about that perhaps but it seems to me that's highly questionable whether that was a transfer of all substantial rights or the madam you have the obligation and you had sole right to defend i mean i've read that article or even i don't necessarily see that you're right about not necessary and they're not indispensable for the reasons we set out and i'd also say your honor that men in the unit brought the motion to dismiss for their you to join the party so it was really their burden to show that m was necessary or indispensable oh we asserted that they had all rights and so it then became their burden and they didn't put the agreement before the district court and the district court made no finding whatsoever that  to how m r c would be prejudiced why m r c would be prejudiced why they had their way given up any or any ability to make that argument by transferring all the rights and i think the agreement is clear clearly states that they have the right to own that that many has the right to bring all infringement actions whether or not in the field of use that they are practicing so any infringement action they get to keep all the proceeds and morsi has no right to participate ok so for me just play this out how you're acting your side this was going to play out you're going to get a determination by the district court exclusively on the political question and let's assume it went  your way and the judge concluded that the patent is invalid you would then refuse to pay whatever amounts come due for that six last six months period then presumably if they have a difference with you in terms of what you're obligated to do under the contract when their expiration is equivalent to the let it be whatever you would it would invision that they would then go in and sue you in the english courts for a violation of contract contract is that the way i'm just trying to hypothesize how this is going to play out so not quite i think i think the way would work this is if they raise in the district court which they really have the issue district court but it's but what power take didn't address the question of whether a district court in the exercise its discretion can decline to entertain a declaratory judgment action which isn't going to resolve whole controversy and passion and they form which apparently you're not familiar with we said that where there are two issues that would need to be resolved before the clerk her judgment plaintiff to prevail  that if you bring a suit to resolve only one of come suggest that you need to show that the other issue is be adjudicated in the other case which is not the situation here so valid but you haven't done that either so you hear you're asking to do this piecemeal and there are plenty of cases suggesting declaratory judgment are not appropriate where it would result in piecemeal don't have an obligation i don't think that that kind of theoretical advisory action would really have been productive at all that's right yes and therefore you should have brought it here and you only answered us about why you didn't bring yet as part of your j is that well if if that was the case if they felt that way they could have raised it as a defense or what if they didn't raise it is it at that so the judge exclusively educates only the validity issue and we've still got this the when that happens the authority that we cited says that that issue was properly before the district court and can be decided now if they hadn't raised that i don't know i don't know what would happen if they hadn't raised it maybe it would have been a co and by not raising it they've waived it that's possible but they did raise it and and that's and so it's properly it was probably before the district court the district court clearly had the authority to decide it and it's properly before the court argued in the motion to dismiss and in this on this appeal that under the proper interpretation of the contract the we would have to pay the royalty and that's their argument as to why there's no d j jurisdiction because it doesn't resolve the entire if the pattern was invalidated would not continue after january and they didn't answer the complaint obviously the falcon motion to dismiss they ask the district court to determine that there was no obligation under the contract even if the patent was in contract doesn't require us to pay royalties if that even if that requires payment of royalties even if the pad is invalidated and therefore there's no jurisdiction in the court rejected that argument so that is a authority to decide that as part of the mare underlying nurse of the dispute despite the absence of a specific prayer for relief asking by the plaintiffs asking for a declaration of rights i believe the cases and then there's a there's a three and then it's right after the citation of the feeder case from the supreme court ok and their followers of the sentence that i read into the record which reflects the understanding of the is there some things that trouble me about what's going down in this case one of them is that your principal argument is that they are not practicing the path let's assume we jack that is being the basis it seems to me  and what do we do with the fact that the district court agreed with that if we disagree with her that that should be a factor in determining if that were so so let me just leave that aside and assume that you disagree with it with us for that purpose you still have the piece paragraphs and except for one little cent one sentence that does talk about piecemeal the requested invalidation the patent or not and the dispute between the parties it seems like almost like read anywhere in the district court's opinion the view that it is funny able or not allowed to interpret it talks to act under review law explicitly is permitted to do that but the question is whether it is required to do that in analysis of this contract so we still would have brought another lawsuit in the united kingdom don't they don't follow collateral estoppel principles based on their duty cation and the foreign court the crane case that we cited pitch thirty seven on three of our brief out of the second circuit from two thousand and nine makes this clear where the d j plaintiff sought a declaration of its rights under foreign law and suddenly the restatement of for last section forty one the second circuit observed that unlike a typical us case where we have full provided no basis whatsoever to suggest that even if it had sought and obtain that declaration from a us court about what the u k caught correct means that that would have been relevant or enforceable where this contract is governed in the united kingdom so the idea of peace militarization would not have been extinguished seems to me to be not helpful to you but helpful to them in other words they're saying they could say well of course we didn't seek a declaration here because the british courts would give a full faith and credit we had to wait to file the contract issue in the british courts and so it's appropriate for us not to have sought that here as your honor observed first of all they would have to wait the order to file that action in the united kingdom there's there's again no basis to say that they c but not having any avenue in which to pursue your claims is also a principle that's just favoring so you keep saying they could have gone to the british court how could they have gone to the british court the british court doesn't have the authority in their jurisdiction to determine whether or not a patent is valid or invalid so we take going to the british court would have been useless the court would say well what do you mean you know there's the patent hasn't expired and there are they could make arguments while the patent is invalid what what what would the question be the question would be if we do that the judgment of invalidity on our rights under this contract really just that the court they're going to go to court and say hypothetically if we some managed to get into a district court in the united states get that district court to agree we have to risk gyptian prevail before the district court that the pattern is invalid if all of that happens british court you tell me what the contract means you want to cut that that's a live case of controversy not the outcome i e that the british court would not have that detained that dispute just fumi say we conclude you realise it's a possibility so let's conclude that it's at least likely so where were they left in terms of where they where their rights exist we are is the proper venue if they can't bring it in the british court because a british court is going to say well we don't even know if the patents invalid or not invalid that hasn't been adjudicated yet we don't have anything before us with it what do they do th this contract i think because if we can if we assume that the british court is not going to entertain a hypothetical argument where the patent is not has not been declared invalid well again i don't think there's any basis in the record to conclude that the only case it says i'm not going to provide a declaration since there's no dispute so if they go into the great britain next week and file a suit for a declaration that if hypothetically the patent were to be declared invalid they would it would it would not have an obligation under the contract to pay the last six months you would not be argued with not arguing that there's no jurisdiction or that's not properly before the court again they haven't filed that suit i don't know what it would look like but but that would be up to the u k court to decide whether it would entertain that dispute and if it would argue our contractual interpretation before the proper court before the u k court about what this contract means and whether a definition of invalidity would end up appropriate for the british courts to pass on that up if they had done that in a timely way i don't see that we would have we would have disputed the ability of the u k court to provide an interpretation of a contract under huge a law that's the proper venue for this contract to be interpreted and the idea that a district court here in the united states can interpret a u k contract does not mean that it must interpret a u k contract they cite not a shred of case law in support of that authority and we can't forget the second basis for the district courts discretionary decision not to entertain jurisdiction in this case and that is the rights the party that was not before the court the district court observed that m r c was not according to this case they were never asked to join the rent it says they're not a party to this agreement is that correct or incorrect it's right it's not a matter of them being party to the agreement between abdi and mehta mean it's a matter of them being a party to the case in which a declaration of invalidity of their patent is being asserted and potentially adjudicated and under this court's case law that simply can't be done that they have to transfer all substantial rights by way of the field of use license to the exclusive licensee and under the supreme court's case law on the astor court didn't really do any of that analysis right correct because they're all substantial rights were transferred and in addition never did any r analysis so this observation by the judge of that m r c another pattern owners were not joined to this complaint it feels incomplete because neither rule nineteen or substantial transfer of rights in korea was ever made by the judge when she made the observation the m r c didn't happen to be there and that was the precise argument advanced by abbey in order to say that there was a legal care below that there was no rule nineteen analysis conduct a court the supreme court has said otherwise the supreme court in the abbott case in the case that rule nineteen analysis does not require it it's not necessary in order to dismiss discretionary leave for lack of subject matter jurisdiction in the declaratory judgment contests and this court in the chemicals said the same thing a party need not be necessary indispensable in order for a district court not to invoke d j jurisdiction they just have to be interested they have to be desirable and on this record there conduct a rule like in analysis there still must be some concern about the missing party and i think that standard is easily satisfied given that it's that m r c party that's missing is not you know has rights to the patent that remain in practice the patent it full rights to single chamber aerial regions that are within the scope of the claims of this patent and is a foreign sovereign entitled to deference from the score so the standard of concerns easily is  nineteen analysis somehow required this court has articulated repeatedly what it's called a clear rule that a field of use licensee does not have all substantial rights to the pat and it's no answer yet but we don't have a clear rule  f the british company is a necessary part of that if it can't be joined that it's indispensable well that is similar to to you know what happens in the a one to three  and also an alford man this whore held that a patent owner that has not conveyed all substantial rights is necessarily both necessary and in the stats or party so there is no separate analysis required with respect to the circumstances to the case at bar did not have also a schedule right with out even knowing what litigation rights have because it was irrelevant the contract was was requested potentially in in discovery and the district court and federal circuit had no interest in the contract because a few of the views licensee does not have all rights and must be joined with the patent over in this case m r c and they didn't even try in this case to join m r c we don't know whether they would have waived sovereign immunity we don't know whether they would await personal jurisdiction court talked about the rights of a party being implicated when no one else is what those rights were and why he waited be prejudiced and the fact is they would not be prejudiced because despite the fact that they reserve some rights within a field of use those rights did not include the right to enforce the patent or to defend against validity those those rights were given completely to madam you and there's not a single case cited by many me and here in which a licensee was you alluded to which is this is a case where the exercise of discretion by the district court effectively denies my client of any remedy there is no other court that can decide the validity of this path and so by exercising this impact the court's jurisdiction so i understand your are saying that it's true that here there was an exercise of discretion which was not specifically addressed but i think all the factors that i've talked about in terms of how a district court motion to dismiss in that case for due to piecemeal litigation there was a motion to dismiss or like jurisdiction but not on account of some allegation that that count