thank you your honor and good morning this case turns on a single legal question is the public use bar triggered when an inventor or a third party in control of an invention really languishes control of that invention by giving or selling the invention to another person prior to the critical date the answer is that it is and then answer set forth in the case of a for versus living in the supreme  court course it's field case that has been long cited for this proposition no case that i'm aware of has ever held that the public use far does not apply where a person in control of the invention relinquish is that control secrecy and so forth in that case your honor the person giving the invention would not have relinquished control there is a critical difference in the cases between giving in a manner where control is relinquished by either the inventor or the third party that is in control of the invention versus maintaining control by imposing as the supreme court said in a for some sort e could argue i guess about mr clawson as well and so this isn't for purposes of the question at least that mr possum clearly disregarded disobeyed the requirement that he not distribute this anyone and he does distribute it to someone but the person to whom you distribute it needs it in some degree of confidentiality we're still public use in that situation i think in that situation it's a closer question was so different from this case because in this case what happened was mr clawson gave the plant material to jim lucy so jim lutie became the person in control of the invention when he exception in the public use far statute for a stolen invention and the cases that that line of cases is well settled and it doesn't matter whether the person receiving the invention was innocent or not the district court found that it didn't matter how mr jenner moody came in possession of the invention the point is that once he became it once he had his  invention he was in complete control with what happened with that invention he could have kept it secret he could have a custom for us whether when he gave it away he put conditions on it that would make it secret cousin and the other person to keep it secret he told them you know what kind of this between ourselves that was a district court finding the district court did not find that there was any in the terms of the confidentiality agreement please sign it but isn't it the case that what the district court has found is these people understand that they have this product illegitimately they can make take advantage of the fact that they ha written or or not written whether it's a verbal agreement or not isn't physical whether he relinquish control or he said to keep it private africa it's it isn't some sort of a factual matter but the point is because the district court did not find that that rose to the level of an injunction of secrecy underneath her and the testimony first of all showed both jumbly and larry would be admitted in trial that they lost control jim moody admitted that when he gave the moody he didn't tell him that you know restrict what he could plant how much he could plant who he could tell where he could do what he could do with anything i mean it was a he thing but the language we could tell but that's not the point of the district court where he said he told them that they should keep it to ourselves and that he expected them to remain private he said just saying let's keep it to ourselves and in fact it i don't think that rises to mutual agreement larry lutie would have said yes i will do that you give this to me on the condition that i would keep it secret and then you would have expected some evidence that he would have it up the next evening with great carson california to to to go through the formalities of have to keep something secret i mean don't you think that if if if i'm a great partner and i go over to my cousin's farm and say here's a new varieties of trail but don't tell them to anybody and the guy takes them he's going to honor that agreement i think that sure i mean if it's a condition of obtaining the finds then yes absolutely that that would indicate it least some of that would be some objective evidence that the person giving the vines always maintained some control over the invention the passage in the district court's opinion seems to suggest that they all agreed to keep it secret isn't that enough i don't think that there was a finding agreement to keep it secret and in fact the first thing i generally did include this request and use the word agreement yes so you think that this record how to use the word that there was an agreement to keep it secret rather than they all said they would keep it secret i think that the district if the district court had made a finding of fact that there was an injunction of secrecy within the scope of living then that would be one thing but the district court never made that finding and in fact the first thing larry lutie did after he reproduced the argument on clear is that there was no secrecy because among other things larry rudy told richard sandrine he didn't keep that secret he planted these vines in a way that showed that he had knows that jim that larry would not disseminate and he gave some of the wood to mr stanton it would that be a public use you know that and that relates to a problem of how far do you have to go once  you into the public in another words how far does it have to extend but the answer the question is yes it would if it was b c it was before the critical date i suppose that if the there was a similar agreement between larry  long as somebody disobeys the injunction that puts it in the public domain yes and larry even if there's no way that the inventor could know that that untapped yes because the person in control of the invention has lost control and the person receiving it hasn't violated the injunction of secrecy that puts it in the public domain and that's exactly what larry lucy if you're let me see if i understand your position with respect to  you're not saying that the disclosure to jim alluded was enough to put it in the public domain correct we don't have to find out in this case of mind about that just i think it's a closer question but i but you're not arguing i'm not arguing that  keep it from becoming public it was enough to transfer control from farson to jim to the word jim moody became a person in control of the invention he became in control but he was in control of subject to an agreement of confidentiality if i understand your position which he violated by giving it to larry liddy right but if we find that the injunction if it were from clawson to jim liddy was essentially the same quality as the injunction from jim to larry then we would say that larry didn't have it in in public is the way we would say that's we would say that the chain was broken twice well but you but you're arguing the chain wasn't up in the first time because there is least you can say  larry it was in the public domain right and even if you find that there was an injunction of secrecy there once larry told sandri needs an agent of the public domain so there are three possible places where it entered the public so just telling send me that i've got the stuff wouldn't be put in analysts recognize already there were specific factual findings in this case the district court carefully sat through three days of testimony parsing through the record and recognize that here given the specially given the context in which the transfer of material occurred in may everyone knew this was an authorized u s d a material and given the statements that were made at the time that there was a quote environment confiden supposed to have correct answers yes and he's asked a seventeen or three question and you also wanted to keep the late way behind your self into larry duty when you saw those lines of larry vs farm in two thousand to correct answer yes so he and his insanity own words to stand right from the very beginning his intent to keep this confidential well that the district court's findings are a little looser i think in that regard to paragraph forty seven saw that there was an advantage to not to welcome this to anyone except for fish and then just because we concluded that they would have realized they better not make this stuff public because they'll lose the competitive advantage if they do yes i think that is a you know we don't have a transcript of the exact conversation that occurred at the time but when you look at the actions in this case and the fact that even later you have someone intentionally falsifying records to conceal the scrapes and jim moody's case you have admitted false testimony under oath to conceal the source of it also with respect to sandrine that you did have testimony from jim moody that when he was  learning that vincent dreamy was being brought within this bubble of confidentiality he had a conversation with them about confidentiality and this is on a nine hundred seventy one through seventy two the question was and we asked you in your two thousand  sure i told him that we were concerned that was what i'm a little unclear about is why send rini having prior to the critical date all that said really good as far as i can understand is to be aware that the luby's home the grapes and to have gone over and looked at the graves is that public use does that put those that product that patentable product in the possession of mr  even if mr and suppose mr moody has invited the entire town to come over and look at his grades but that he said don't touch it you can't take any of the material just look at the grams would that put those grapes in the public use  and i think that is a much closer case because you get into the tricky question of the justifiable reliance of the public sphere and whether that's a circumstance in which the public then comes to believe these are out there open which is very different from this case where you can set the policy behind the public use in terms of protecting not just file reliance doesn't come into play at all because everyone who is involved  exactly what mr klassen said to mr jim losing in your brief to say what he told him i think you say explicitly specifically instructed him not to let the grape the material get away from  but as i read the record mr lew these did not recall mr classes saying that and seems to testify because he was asked to do the class and told him it should not let the vines get away from them and he said i don't remember him saying that but you know i think that's what i thought and that seems to me a rather different from say that question actually said that if you look at this is one thousand nine hundred forty one that that testimony appears and there eleven forty four a reference to jim lucy does not remember the exact words he used but recalled generally that klassen did not want jim to let the material to get away from him  do you think that that evidence is sufficient to support the and that and in the summary judgment motion do you think that the evidence of louise testimony is strong enough to support the district court's findings on that point yes i think it has and why it did because i think you will agree with me at least from my some forty that's not specifically evidence of specifically states saying that he told time is what jim lucy took away from the conversation so even if we don't have the exact words and i just don't have that my fingertips one another by the score that we know that jim when he came away from that conversation from a conversation and quite frankly we never had an opportunity to depose mr class in this case because jim moody's false testimony under oath and falsely saini didn't identify am  we have snippets of the zapped words that are going back and forth between them but that's not what what's important here you see from the contact the way people are acting the steps that are taken to maintain secrecy here their own testimony at trial about their understanding of the just report factual findings about the incentives of secrecy here and you have in the end very limited knowledge with a shared commitment to keeping confidentiality is the fact is there was an understanding and i don't think there's a for formula i think a requirement that there have to be this formal chain like a chain of title these folks knew they should not have the material they didn't want this to be public the other reason is of course confidentiality is one way in which a use is not going to be a public use the other way is if it doesn't and form the public  record certainly could create her testimony which it did there was testimony going all over the place quite honestly with jim lucci times in which he did indicate there was his understanding of confidentiality  i don't think when you look at deeper that that rises to the level of that injunction of secrecy the supreme court a big bird chose its words very carefully it imposes a very high standard for what it takes to keep possession when an invention is given to another person it's different than when intervention is just show to another person there are somewhat looser standards being applied maybe if you just show it saying let's keep this to ourselves maybe not but when you actually hand over the invention such that a third party can take it and make the invention the supreme court very carefully impose a very high standard of an injunction of secrecy and i  invention if you don't want the public use bar to apply you have to do something very specific you have to keep control by imposing a restriction a limitation or as a supreme court said an injunction of secrecy and simply sane you know we should keep this to ourselves i don't believe it rises that level i do think that it very well may and there's a plenty of cases to support that it might including the date case here where the invention is showed to somebody else or it's it's provided under the situation where very clearly the person in control of the inventor keeps the control such as in a clinical trial situation but if you give an invention to somebody as opposed to just room let's keep this quiet that's fine but when you actually hand over the invention if you gave the roots go to reverse engineer and go do whatever you want it's yours to do then if you don't want to put that invention in the public use whether you're  mentor or the person in control you need some sort you need something that will rise to what the supreme court said has to be an injunction of secrecy and just saying let's keep it to ourselves or we should keep it to ourselves doesn't