Zero zero seven dash seventy one seventy one. I am the versus department of veterans affairs and appeal number two zero zero seven dash thirty two forty five. Call bell versus department of the Air Force on the party list will hear. I even first and appeal number two zero zero seven dash any three. Can help versus tail end steel products. I'm so. Afternoon may please the court Eric place the green department justice representing and the United States. The only issue which the United States comes to present argument before the court regarding is whether or not the district court's transfer order is unlawful. There is little dispute after this court's decision in Fisherman's hardest at section 14 of four does not provide any authority to transfer case. District court to the court of federal claims as the court of federal claims is not a district court division. The court you transfer a case or a defense. Well you are on our due the district court's order that a transfer nearly the affirmative defense provides yet another reason that the order of the issues unlawful but even if you were to assume the district court transfer a claim or even the entire case as this court's decision in Fisherman's harvest makes clear section 14 of four does not afford authority to do that to the court of federal claims. Likewise in section 1631 this court that excuse me the district court did not lack jurisdiction over the suit
. Noted to make such a finding nor with the court of federal claims possess jurisdiction over suit between private parties such as this one. So even if as you suggest the district court had properly transferred a case or even a claim this court would have accordingly if it reaches the issue you're required to find that transfer order is unlawful. I think the government isn't concerned because anything that would happen to the district court between two private parties wouldn't bind the government and non-party any. That's correct or on our own but as we stated on our brief we have an interest in the proper and expeditious resolution of suits between private parties from one of those parties is a government contractor who is providing goods to the government. That's why we do not do our duty and we appreciate that your honor. Anything further? No, must there are any questions? Thank you. The next floor. Your honor, felt the necklace represented the plans below. The transfer order in this matter should be set aside with the direction of the district court to schedule a matter for a trial criteria. The transfer order was incorrectly entered for at least four reasons. First, the district court does not have authority to transfer the venue of the case to the court of court of claims under 14 on four change of venue provisions. Second, the district court does not have the authority to transfer the case to the court of claims under 1631 for want of jurisdiction because the jurisdiction was properly before the district court and the court of federal claims had no jurisdiction over the private parties to this case
. Third, section four jurisdiction. Pardon me? We have a jurisdiction. Yes, you do, your honor. With respect, if you go to the official and harvest case, this court may clear that simply by the district court relying on the wrong statute to transfer the case does not deprive the court of jurisdiction. The rules make it clear the statute makes it clear your honor with respect to under the official. That this court does have authority for transfer orders. The only mechanism for the court to transfer is under 1631 for transfer orders. This court has authority to transfer. There is no authority under 14 on four. As this court is presently concluded, you have to assume that the court rely on the correct statute for your senior jurisdiction. So, then you are telling us that we should disregard the district judge's explicit alliance on 14.04 and to treat the transfer order as if it had been based on 1631
. Yes, Your Honor. And with respect to the section 19, 1498, the decision, the Fisherman's Harbor where they did that, there was some reason for doing so. Here, there is, expressly, a fourth invocation of 1404 expressly, disclaiming 1631. Well, they used some cabinet to say we have your signature. There is a notice, Lamar, 1631 in the court below your honor. What the court did do is rely on 1404. What Fisherman's Harvest did is, if you recall, Fisherman's Harvest, when it came to the upper parties, the analysis was the same. The 1631 was relied on by the lower court in Fisherman's Harvest to transfer the case with respect to the United States, which had been brought in as a third party. Sounds a lot better. This case doesn't. It does apply to a lot of like this case. If the court did not, in this case they didn't invoke 1631
. Well, in the Fisherman Harvest case, the court did not cite 1631 with respect to the private parties. The court and that court relied entirely on 1404 to transfer the case under Fisherman to the court. This court went back and did the analysis and said, well, you can't do it under 1404 because you cannot transfer many of you from a district court to an article one, a court of court. So in that case, the court expressed that we're going to assume that the analysis was the judge in the live on 1631 because 1404. Well, if we disagree with your suggestion that we proceed just as the court in Fisherman's Harvest case, where does that lead us? If we really believe we take the district judge at the word that it's 1404, then where are we at? Well, I think on that, we would invite you to, as the Department of Justice has indicated, to make a decision as a rid of maintenance to change. There's just no point at this stage in sending the case to a court. You would have, under the mandamus have not done that, but we would buy the court to correct our plea into that case. Would it be the case if we declined to look to 1631 as the proper statute? Would it be the case that there's absolutely no place where the 1404 transfer could then be appealed? So there would be jurisdiction nowhere? I think that's correct. We'd be sitting out in a nomads land trying to sort out how to get back to a very trial of the burnt out of the... Well, in theory, we got a quarter of fifth of claims within itself that this claim was just a given jurisdiction
. Right. I would assume that would have declined. And then, if it didn't, if it dropped the procedural posture, it could either come here or declining further repeal, you'd go straight back to the district court. I agree with you. As a court of declines, jurisdiction, it sends it back. So what you're trying to, for a justice deal, is just skip one step in the process. I think so. And there's the other issue with respect to the indispensable party. We believe under the ruling of this court under the 1498 analysis, the United States is not an indispensable party. We work in our concern to be and find ourselves in front of the court of federal claims with the finding of the lower court that says the United States is an indispensable party, which is not. And then it has to go through that analysis. It is important for us to have that determination correct, as part of the review process
. Is I understand what was reported to be transferred to the court of federal claims was assumed between the private courties to which the United States is not a party. It's not an agreement in this case, isn't that correct? Yes, your honor, in fact, is narrower than that. What the court sent was an affirmative defense, raised by the defendants, and sent simply the adjudication of that single affirmative defense to the court of federal claims, directing that the court of federal claims required that the party in bringing the United States as an indispensable party and litigate that issue to return it to the court for 500 years of commission. How could the United States be an indispensable, per-intriguing, in the current situation, in case of a co-owner of a family of assuming that's even possible? Your honor, they're not an indispensable party. This course, ruling is in 1498, make a very clear that 1498 is an affirmative defense to be decided in the lower court, and we have a jury trial rise to the adjudication of that. Until the court with jury determines that the United States is not an indispensable party, or to them, they did not authorize and consent to the infringement, they cannot be an indispensable party. Do you want to stay in the rest of your revolutions on the three minutes? Yes, your honor. Thank you. Thank you. Thank you. Thank you. The Senate Court, Kevin O'Hay, I'm happy to have you
. I'm sorry. Well, thank you, Your Honor. Let me first state that the first issue presented as court as to whether or not the United States government's indispensable party is now removed. In the government's anarchist brief, they explicitly state that they provided all the authorization and consent to the government contractors in this case to infringe upon other patents on high-sex patents. So that issue is now resolved. The government is admitted. It's not so finished, not so finished. So what? Then there would be a valid defense. But anything more than that? Your honor, that would then indicate that the case, the patent case in the Northern District or where the court claims would then be dismissed, but for high-tech, naming the United States government, that would be how you think the law, of course, of that. So the District Court would enter judgment for jail and on that affirmative defense and someone would then file a motion joining or adding the government to the city. It could. That would have happened procedurally before it could get me first, right? Correct
. So the fact that my understanding of the procedures it would be they would claim the United States government and the federal court of claims, and that's where they would bring the case. Because at the present time, the United States is not a party. That is for action to add. They are not reporting. That is just your opinion. Why is it entirely the claim that's choised? It's curious to sue. Maybe he could have sued the United States of the Court of Federal claims. He actually chose to sue your claim and it just could court. Why is it entirely his choice? I believe your honor in a case like this where the federal government is expressed in Amicus Breed that they want to be able to buy products for the Department of Defense. We are in. They do not want to clout and patent infringement on their subcontractors. It is important for the government to be a party to these cases because KLN, my client, is under a clout of that patent infringement
. When they were providing a trial to the United States government, with their office, they would say that you seek the proof of the validity of the defense you asserted in the court. And if it's half as good as you say it is, you'll win. The defense will be accepted. There will have some rejuvenment of no infringement and the case will be over. That's my final. What's unsatisfactory right now? Nothing, Your Honor. Except my other arguments. Why are you trying to stay in the court of federal claims instead of what you suggest as a slim to win in the district court? Well, I think that the court of federal claims will deal with this expeditiously and quickly and for judicial economies to say we'd like to stay there and have this issue resolved. But more importantly, I question whether this is a big issue yet. The government's liability becomes no one's silly to govern. You want the government to be silly, but you're not the plaintiff. He's the plaintiff
. He doesn't want the government to be sued. It seems like he gets to decide. It's his lawsuit. He had two possible defendants. He chose defendant A, not defendant B. Then seemed like it's within your powers to say, you know, he chose the wrong guy. He should have chose the US government. Up there. He can do one. He can do the other. He can do both. He can do them in this sequence. So that sequence, or you could have done simultaneously. But still, it seems like under the rules of procedure, the choice is essentially his as the plaintiff in the infringement lawsuit. What authority to be contrabed? I don't know. But I also believe, as part of my belief, that this court should choose not to exercise the jurisdiction on this appeal. And the number one argument there. You know, we have jurisdiction to exercise. Well, it's a 1404 transfer. Explicit. And Judge Kendall's a border on our motion for summary judgment. Explicit. 1404. She never mentioned 1631
. So that sequence, or you could have done simultaneously. But still, it seems like under the rules of procedure, the choice is essentially his as the plaintiff in the infringement lawsuit. What authority to be contrabed? I don't know. But I also believe, as part of my belief, that this court should choose not to exercise the jurisdiction on this appeal. And the number one argument there. You know, we have jurisdiction to exercise. Well, it's a 1404 transfer. Explicit. And Judge Kendall's a border on our motion for summary judgment. Explicit. 1404. She never mentioned 1631. And the same as true infringement is our best counsel. I would say in this case, then, if they're going to follow 1631 that gets you into 1292 jurisdiction in this court. And if you have 1292, the section you cite, I'm able to understand how it says any, are you going to your time in argument now? Or is that what I don't want to preempt you? Or are you going towards the timing issue, your motion to dismiss for lack of jurisdiction? Do the time will be repealed? Yes, sure. That's where I'm going. So I have trouble. I'm just jumping ahead and I have trouble understanding how the 1292 provision that you cite has anything at all to do with the timeliness of appellate filing. It pertains only to district court staining of the litigation of the district court for 60 days and then law authority and public court as a whole. So I guess I just had trouble understanding why there noticed that appeal was on time. And as you suggested. They are in the hours and followed the six days too late. No, they followed it. If you look at federal rule of appellate procedure four, it gives them time after the motion for reconsideration
. And the same as true infringement is our best counsel. I would say in this case, then, if they're going to follow 1631 that gets you into 1292 jurisdiction in this court. And if you have 1292, the section you cite, I'm able to understand how it says any, are you going to your time in argument now? Or is that what I don't want to preempt you? Or are you going towards the timing issue, your motion to dismiss for lack of jurisdiction? Do the time will be repealed? Yes, sure. That's where I'm going. So I have trouble. I'm just jumping ahead and I have trouble understanding how the 1292 provision that you cite has anything at all to do with the timeliness of appellate filing. It pertains only to district court staining of the litigation of the district court for 60 days and then law authority and public court as a whole. So I guess I just had trouble understanding why there noticed that appeal was on time. And as you suggested. They are in the hours and followed the six days too late. No, they followed it. If you look at federal rule of appellate procedure four, it gives them time after the motion for reconsideration. Why do the motion for reconsideration told the time for filing appeal like it was in any other case? Because I believe that if you look at the way the statutory scheme is developed, rule four would apply if this is a 1404 transfer. In this case, we're normally interlocked toary transfers are not appealable. Just not appealable. It's interlocked toary. In this case, 1292 gives you an explicit authority to have jurisdiction. This court has jurisdiction under that. And that's where the 60 days come from. It has a layout, 60 days timing for filing notice for appeal. It's 60 days of staining at the district court. There's nothing it says, nothing at all about the timeline for filing the appeal in that position. Why wouldn't we go with the explicit provision of four A? You want us to go with some exception that you're writing into the statute. Because I feel the same on the statute
. Why do the motion for reconsideration told the time for filing appeal like it was in any other case? Because I believe that if you look at the way the statutory scheme is developed, rule four would apply if this is a 1404 transfer. In this case, we're normally interlocked toary transfers are not appealable. Just not appealable. It's interlocked toary. In this case, 1292 gives you an explicit authority to have jurisdiction. This court has jurisdiction under that. And that's where the 60 days come from. It has a layout, 60 days timing for filing notice for appeal. It's 60 days of staining at the district court. There's nothing it says, nothing at all about the timeline for filing the appeal in that position. Why wouldn't we go with the explicit provision of four A? You want us to go with some exception that you're writing into the statute. Because I feel the same on the statute. You can use any language at all, in regard to the time of notice for the period. At what point do you mean the statute where that language is that you're relying on? You're on it. We believe it's implicit in language study. You have 60 days. It's stayed in the state. It doesn't say you have 60 cases. So the district court action shall be stayed for 60 days. That says nothing at all about the appeal. We're on it. We believe that the high tech was on notice September 13th, 2016 motion for reconsideration. Which was inappropriate given the 60 days. Because there's supposed to be no further proceedings in the district court while they have that time for appeal
. You can use any language at all, in regard to the time of notice for the period. At what point do you mean the statute where that language is that you're relying on? You're on it. We believe it's implicit in language study. You have 60 days. It's stayed in the state. It doesn't say you have 60 cases. So the district court action shall be stayed for 60 days. That says nothing at all about the appeal. We're on it. We believe that the high tech was on notice September 13th, 2016 motion for reconsideration. Which was inappropriate given the 60 days. Because there's supposed to be no further proceedings in the district court while they have that time for appeal. And yet they file a motion for reconsideration on this. Which shouldn't have been filed under 1292. So the district court deemed their motion for reconsideration in proper under 1292? Or did they just deny it? No, they didn't. They just denied it. Anything further? No, Your Honor, I have nothing further. I do not believe the courtship exercise jurisdiction on its appeal. Anything. And when you say students exercise jurisdiction in line with the judge who had a very serious question, are you really saying we don't have any jurisdiction or we haven't, but as a potential man, which would refuse to use? I do not believe you have. Thank you. Mr. Nicholas. Thank you, Your Honor
. And yet they file a motion for reconsideration on this. Which shouldn't have been filed under 1292. So the district court deemed their motion for reconsideration in proper under 1292? Or did they just deny it? No, they didn't. They just denied it. Anything further? No, Your Honor, I have nothing further. I do not believe the courtship exercise jurisdiction on its appeal. Anything. And when you say students exercise jurisdiction in line with the judge who had a very serious question, are you really saying we don't have any jurisdiction or we haven't, but as a potential man, which would refuse to use? I do not believe you have. Thank you. Mr. Nicholas. Thank you, Your Honor. I would like to address the other point I just discussed with respect to the motion for reconsideration that we filed. In this instance, the neither party asked to transfer the case, nor was it briefed. When we received the order denying summary judgment on the 1498 issue and directing it a go to the jury trial, at the end of the order, for the first time we see the transfer order never been briefed. We made a timing motion within 10 days to reconsider that to give the judge the law. We've been doing some with you on that. Take us back to the jurisdiction. Where do you want to be in line? Where we want to be is back with the United States District Court. The United States is a indispensable part of it. The United States is not an indispensable part of it. You want to be a partner? You know that? We know that because you have a plethora of federal jurisdiction that says 1498 is a jurisdictional defense to be the burden of truth, which is why is it the part of private party? You just said 1498 is jurisdictional. What about the spirit of crater, manville, manville is where our chief here. It goes on to say that this is an affirmative defense
. I would like to address the other point I just discussed with respect to the motion for reconsideration that we filed. In this instance, the neither party asked to transfer the case, nor was it briefed. When we received the order denying summary judgment on the 1498 issue and directing it a go to the jury trial, at the end of the order, for the first time we see the transfer order never been briefed. We made a timing motion within 10 days to reconsider that to give the judge the law. We've been doing some with you on that. Take us back to the jurisdiction. Where do you want to be in line? Where we want to be is back with the United States District Court. The United States is a indispensable part of it. The United States is not an indispensable part of it. You want to be a partner? You know that? We know that because you have a plethora of federal jurisdiction that says 1498 is a jurisdictional defense to be the burden of truth, which is why is it the part of private party? You just said 1498 is jurisdictional. What about the spirit of crater, manville, manville is where our chief here. It goes on to say that this is an affirmative defense. It actually says 1498 is to be applied. That leads us to perhaps the research to suit the following United States as a complication of a defense, and not a jurisdictional statute. That was manville written by our chief in 1990. There's been a whole plethora of cases that's not a matter of justice. The honor by the service jurisdiction I was mistaken. I don't know. On 1498 is an affirmative defense that has to be raised by a party, and that it would not become jurisdictional unless it was found that the United States in fact provided the authorization and consent. That's the other case that we've already decided that there are not an indispensable party unless there was authorization. Why is it your interest to judge raiders that you're prepared to take the risk as to whether the United States own a military company and indispensable party? Well, frankly, because we think there is no risk. You are on this case. That might mean me. But assuming there is a risk, it's one that you're willing to take
. It actually says 1498 is to be applied. That leads us to perhaps the research to suit the following United States as a complication of a defense, and not a jurisdictional statute. That was manville written by our chief in 1990. There's been a whole plethora of cases that's not a matter of justice. The honor by the service jurisdiction I was mistaken. I don't know. On 1498 is an affirmative defense that has to be raised by a party, and that it would not become jurisdictional unless it was found that the United States in fact provided the authorization and consent. That's the other case that we've already decided that there are not an indispensable party unless there was authorization. Why is it your interest to judge raiders that you're prepared to take the risk as to whether the United States own a military company and indispensable party? Well, frankly, because we think there is no risk. You are on this case. That might mean me. But assuming there is a risk, it's one that you're willing to take. I think the answer to that, you are very simple. It's a risk. Somebody has to take, we want a jury to decide it. On the seventh and then, we're entitled to present the jury that the United States, and the United States, and then you manifestly not in title as a jury. Well, that's correct. But the jury is also a non-jury form. I'm assuming a private party, because during the contract and the bill of education, the United States and the United States told our clients over and over and told the defense that there was no authorization and consent, but the private party would be responsible for the purposes of these commercial sales. What happens if we just find we have no jurisdiction that goes on to the court of federal claims? What happens there? The only difficulty that we have, your honest respect, that is the lower course finding of indispensable party, which it's not, as we just described. As long as we have the findings, all of the cases that these folks are in the United States as an indispensable party, then we get into the federal court of federal claims. If we say we're not going to bring them into the suit, we didn't name them. And the court then says, well, then we're going to dismiss it under the rules because you're not naming an indispensable party. And part not only do we want the case to return, we want to clear that they're not indispensable parties
. I think the answer to that, you are very simple. It's a risk. Somebody has to take, we want a jury to decide it. On the seventh and then, we're entitled to present the jury that the United States, and the United States, and then you manifestly not in title as a jury. Well, that's correct. But the jury is also a non-jury form. I'm assuming a private party, because during the contract and the bill of education, the United States and the United States told our clients over and over and told the defense that there was no authorization and consent, but the private party would be responsible for the purposes of these commercial sales. What happens if we just find we have no jurisdiction that goes on to the court of federal claims? What happens there? The only difficulty that we have, your honest respect, that is the lower course finding of indispensable party, which it's not, as we just described. As long as we have the findings, all of the cases that these folks are in the United States as an indispensable party, then we get into the federal court of federal claims. If we say we're not going to bring them into the suit, we didn't name them. And the court then says, well, then we're going to dismiss it under the rules because you're not naming an indispensable party. And part not only do we want the case to return, we want to clear that they're not indispensable parties. The case cannot be dismissed simply because we did not name the United States. Time is expired. Thank you, Honour. Thank you both for the counsel. We'll take the bill on your revised. Thank you both for your time.
Zero zero seven dash seventy one seventy one. I am the versus department of veterans affairs and appeal number two zero zero seven dash thirty two forty five. Call bell versus department of the Air Force on the party list will hear. I even first and appeal number two zero zero seven dash any three. Can help versus tail end steel products. I'm so. Afternoon may please the court Eric place the green department justice representing and the United States. The only issue which the United States comes to present argument before the court regarding is whether or not the district court's transfer order is unlawful. There is little dispute after this court's decision in Fisherman's hardest at section 14 of four does not provide any authority to transfer case. District court to the court of federal claims as the court of federal claims is not a district court division. The court you transfer a case or a defense. Well you are on our due the district court's order that a transfer nearly the affirmative defense provides yet another reason that the order of the issues unlawful but even if you were to assume the district court transfer a claim or even the entire case as this court's decision in Fisherman's harvest makes clear section 14 of four does not afford authority to do that to the court of federal claims. Likewise in section 1631 this court that excuse me the district court did not lack jurisdiction over the suit. Noted to make such a finding nor with the court of federal claims possess jurisdiction over suit between private parties such as this one. So even if as you suggest the district court had properly transferred a case or even a claim this court would have accordingly if it reaches the issue you're required to find that transfer order is unlawful. I think the government isn't concerned because anything that would happen to the district court between two private parties wouldn't bind the government and non-party any. That's correct or on our own but as we stated on our brief we have an interest in the proper and expeditious resolution of suits between private parties from one of those parties is a government contractor who is providing goods to the government. That's why we do not do our duty and we appreciate that your honor. Anything further? No, must there are any questions? Thank you. The next floor. Your honor, felt the necklace represented the plans below. The transfer order in this matter should be set aside with the direction of the district court to schedule a matter for a trial criteria. The transfer order was incorrectly entered for at least four reasons. First, the district court does not have authority to transfer the venue of the case to the court of court of claims under 14 on four change of venue provisions. Second, the district court does not have the authority to transfer the case to the court of claims under 1631 for want of jurisdiction because the jurisdiction was properly before the district court and the court of federal claims had no jurisdiction over the private parties to this case. Third, section four jurisdiction. Pardon me? We have a jurisdiction. Yes, you do, your honor. With respect, if you go to the official and harvest case, this court may clear that simply by the district court relying on the wrong statute to transfer the case does not deprive the court of jurisdiction. The rules make it clear the statute makes it clear your honor with respect to under the official. That this court does have authority for transfer orders. The only mechanism for the court to transfer is under 1631 for transfer orders. This court has authority to transfer. There is no authority under 14 on four. As this court is presently concluded, you have to assume that the court rely on the correct statute for your senior jurisdiction. So, then you are telling us that we should disregard the district judge's explicit alliance on 14.04 and to treat the transfer order as if it had been based on 1631. Yes, Your Honor. And with respect to the section 19, 1498, the decision, the Fisherman's Harbor where they did that, there was some reason for doing so. Here, there is, expressly, a fourth invocation of 1404 expressly, disclaiming 1631. Well, they used some cabinet to say we have your signature. There is a notice, Lamar, 1631 in the court below your honor. What the court did do is rely on 1404. What Fisherman's Harvest did is, if you recall, Fisherman's Harvest, when it came to the upper parties, the analysis was the same. The 1631 was relied on by the lower court in Fisherman's Harvest to transfer the case with respect to the United States, which had been brought in as a third party. Sounds a lot better. This case doesn't. It does apply to a lot of like this case. If the court did not, in this case they didn't invoke 1631. Well, in the Fisherman Harvest case, the court did not cite 1631 with respect to the private parties. The court and that court relied entirely on 1404 to transfer the case under Fisherman to the court. This court went back and did the analysis and said, well, you can't do it under 1404 because you cannot transfer many of you from a district court to an article one, a court of court. So in that case, the court expressed that we're going to assume that the analysis was the judge in the live on 1631 because 1404. Well, if we disagree with your suggestion that we proceed just as the court in Fisherman's Harvest case, where does that lead us? If we really believe we take the district judge at the word that it's 1404, then where are we at? Well, I think on that, we would invite you to, as the Department of Justice has indicated, to make a decision as a rid of maintenance to change. There's just no point at this stage in sending the case to a court. You would have, under the mandamus have not done that, but we would buy the court to correct our plea into that case. Would it be the case if we declined to look to 1631 as the proper statute? Would it be the case that there's absolutely no place where the 1404 transfer could then be appealed? So there would be jurisdiction nowhere? I think that's correct. We'd be sitting out in a nomads land trying to sort out how to get back to a very trial of the burnt out of the... Well, in theory, we got a quarter of fifth of claims within itself that this claim was just a given jurisdiction. Right. I would assume that would have declined. And then, if it didn't, if it dropped the procedural posture, it could either come here or declining further repeal, you'd go straight back to the district court. I agree with you. As a court of declines, jurisdiction, it sends it back. So what you're trying to, for a justice deal, is just skip one step in the process. I think so. And there's the other issue with respect to the indispensable party. We believe under the ruling of this court under the 1498 analysis, the United States is not an indispensable party. We work in our concern to be and find ourselves in front of the court of federal claims with the finding of the lower court that says the United States is an indispensable party, which is not. And then it has to go through that analysis. It is important for us to have that determination correct, as part of the review process. Is I understand what was reported to be transferred to the court of federal claims was assumed between the private courties to which the United States is not a party. It's not an agreement in this case, isn't that correct? Yes, your honor, in fact, is narrower than that. What the court sent was an affirmative defense, raised by the defendants, and sent simply the adjudication of that single affirmative defense to the court of federal claims, directing that the court of federal claims required that the party in bringing the United States as an indispensable party and litigate that issue to return it to the court for 500 years of commission. How could the United States be an indispensable, per-intriguing, in the current situation, in case of a co-owner of a family of assuming that's even possible? Your honor, they're not an indispensable party. This course, ruling is in 1498, make a very clear that 1498 is an affirmative defense to be decided in the lower court, and we have a jury trial rise to the adjudication of that. Until the court with jury determines that the United States is not an indispensable party, or to them, they did not authorize and consent to the infringement, they cannot be an indispensable party. Do you want to stay in the rest of your revolutions on the three minutes? Yes, your honor. Thank you. Thank you. Thank you. Thank you. The Senate Court, Kevin O'Hay, I'm happy to have you. I'm sorry. Well, thank you, Your Honor. Let me first state that the first issue presented as court as to whether or not the United States government's indispensable party is now removed. In the government's anarchist brief, they explicitly state that they provided all the authorization and consent to the government contractors in this case to infringe upon other patents on high-sex patents. So that issue is now resolved. The government is admitted. It's not so finished, not so finished. So what? Then there would be a valid defense. But anything more than that? Your honor, that would then indicate that the case, the patent case in the Northern District or where the court claims would then be dismissed, but for high-tech, naming the United States government, that would be how you think the law, of course, of that. So the District Court would enter judgment for jail and on that affirmative defense and someone would then file a motion joining or adding the government to the city. It could. That would have happened procedurally before it could get me first, right? Correct. So the fact that my understanding of the procedures it would be they would claim the United States government and the federal court of claims, and that's where they would bring the case. Because at the present time, the United States is not a party. That is for action to add. They are not reporting. That is just your opinion. Why is it entirely the claim that's choised? It's curious to sue. Maybe he could have sued the United States of the Court of Federal claims. He actually chose to sue your claim and it just could court. Why is it entirely his choice? I believe your honor in a case like this where the federal government is expressed in Amicus Breed that they want to be able to buy products for the Department of Defense. We are in. They do not want to clout and patent infringement on their subcontractors. It is important for the government to be a party to these cases because KLN, my client, is under a clout of that patent infringement. When they were providing a trial to the United States government, with their office, they would say that you seek the proof of the validity of the defense you asserted in the court. And if it's half as good as you say it is, you'll win. The defense will be accepted. There will have some rejuvenment of no infringement and the case will be over. That's my final. What's unsatisfactory right now? Nothing, Your Honor. Except my other arguments. Why are you trying to stay in the court of federal claims instead of what you suggest as a slim to win in the district court? Well, I think that the court of federal claims will deal with this expeditiously and quickly and for judicial economies to say we'd like to stay there and have this issue resolved. But more importantly, I question whether this is a big issue yet. The government's liability becomes no one's silly to govern. You want the government to be silly, but you're not the plaintiff. He's the plaintiff. He doesn't want the government to be sued. It seems like he gets to decide. It's his lawsuit. He had two possible defendants. He chose defendant A, not defendant B. Then seemed like it's within your powers to say, you know, he chose the wrong guy. He should have chose the US government. Up there. He can do one. He can do the other. He can do both. He can do them in this sequence. So that sequence, or you could have done simultaneously. But still, it seems like under the rules of procedure, the choice is essentially his as the plaintiff in the infringement lawsuit. What authority to be contrabed? I don't know. But I also believe, as part of my belief, that this court should choose not to exercise the jurisdiction on this appeal. And the number one argument there. You know, we have jurisdiction to exercise. Well, it's a 1404 transfer. Explicit. And Judge Kendall's a border on our motion for summary judgment. Explicit. 1404. She never mentioned 1631. And the same as true infringement is our best counsel. I would say in this case, then, if they're going to follow 1631 that gets you into 1292 jurisdiction in this court. And if you have 1292, the section you cite, I'm able to understand how it says any, are you going to your time in argument now? Or is that what I don't want to preempt you? Or are you going towards the timing issue, your motion to dismiss for lack of jurisdiction? Do the time will be repealed? Yes, sure. That's where I'm going. So I have trouble. I'm just jumping ahead and I have trouble understanding how the 1292 provision that you cite has anything at all to do with the timeliness of appellate filing. It pertains only to district court staining of the litigation of the district court for 60 days and then law authority and public court as a whole. So I guess I just had trouble understanding why there noticed that appeal was on time. And as you suggested. They are in the hours and followed the six days too late. No, they followed it. If you look at federal rule of appellate procedure four, it gives them time after the motion for reconsideration. Why do the motion for reconsideration told the time for filing appeal like it was in any other case? Because I believe that if you look at the way the statutory scheme is developed, rule four would apply if this is a 1404 transfer. In this case, we're normally interlocked toary transfers are not appealable. Just not appealable. It's interlocked toary. In this case, 1292 gives you an explicit authority to have jurisdiction. This court has jurisdiction under that. And that's where the 60 days come from. It has a layout, 60 days timing for filing notice for appeal. It's 60 days of staining at the district court. There's nothing it says, nothing at all about the timeline for filing the appeal in that position. Why wouldn't we go with the explicit provision of four A? You want us to go with some exception that you're writing into the statute. Because I feel the same on the statute. You can use any language at all, in regard to the time of notice for the period. At what point do you mean the statute where that language is that you're relying on? You're on it. We believe it's implicit in language study. You have 60 days. It's stayed in the state. It doesn't say you have 60 cases. So the district court action shall be stayed for 60 days. That says nothing at all about the appeal. We're on it. We believe that the high tech was on notice September 13th, 2016 motion for reconsideration. Which was inappropriate given the 60 days. Because there's supposed to be no further proceedings in the district court while they have that time for appeal. And yet they file a motion for reconsideration on this. Which shouldn't have been filed under 1292. So the district court deemed their motion for reconsideration in proper under 1292? Or did they just deny it? No, they didn't. They just denied it. Anything further? No, Your Honor, I have nothing further. I do not believe the courtship exercise jurisdiction on its appeal. Anything. And when you say students exercise jurisdiction in line with the judge who had a very serious question, are you really saying we don't have any jurisdiction or we haven't, but as a potential man, which would refuse to use? I do not believe you have. Thank you. Mr. Nicholas. Thank you, Your Honor. I would like to address the other point I just discussed with respect to the motion for reconsideration that we filed. In this instance, the neither party asked to transfer the case, nor was it briefed. When we received the order denying summary judgment on the 1498 issue and directing it a go to the jury trial, at the end of the order, for the first time we see the transfer order never been briefed. We made a timing motion within 10 days to reconsider that to give the judge the law. We've been doing some with you on that. Take us back to the jurisdiction. Where do you want to be in line? Where we want to be is back with the United States District Court. The United States is a indispensable part of it. The United States is not an indispensable part of it. You want to be a partner? You know that? We know that because you have a plethora of federal jurisdiction that says 1498 is a jurisdictional defense to be the burden of truth, which is why is it the part of private party? You just said 1498 is jurisdictional. What about the spirit of crater, manville, manville is where our chief here. It goes on to say that this is an affirmative defense. It actually says 1498 is to be applied. That leads us to perhaps the research to suit the following United States as a complication of a defense, and not a jurisdictional statute. That was manville written by our chief in 1990. There's been a whole plethora of cases that's not a matter of justice. The honor by the service jurisdiction I was mistaken. I don't know. On 1498 is an affirmative defense that has to be raised by a party, and that it would not become jurisdictional unless it was found that the United States in fact provided the authorization and consent. That's the other case that we've already decided that there are not an indispensable party unless there was authorization. Why is it your interest to judge raiders that you're prepared to take the risk as to whether the United States own a military company and indispensable party? Well, frankly, because we think there is no risk. You are on this case. That might mean me. But assuming there is a risk, it's one that you're willing to take. I think the answer to that, you are very simple. It's a risk. Somebody has to take, we want a jury to decide it. On the seventh and then, we're entitled to present the jury that the United States, and the United States, and then you manifestly not in title as a jury. Well, that's correct. But the jury is also a non-jury form. I'm assuming a private party, because during the contract and the bill of education, the United States and the United States told our clients over and over and told the defense that there was no authorization and consent, but the private party would be responsible for the purposes of these commercial sales. What happens if we just find we have no jurisdiction that goes on to the court of federal claims? What happens there? The only difficulty that we have, your honest respect, that is the lower course finding of indispensable party, which it's not, as we just described. As long as we have the findings, all of the cases that these folks are in the United States as an indispensable party, then we get into the federal court of federal claims. If we say we're not going to bring them into the suit, we didn't name them. And the court then says, well, then we're going to dismiss it under the rules because you're not naming an indispensable party. And part not only do we want the case to return, we want to clear that they're not indispensable parties. The case cannot be dismissed simply because we did not name the United States. Time is expired. Thank you, Honour. Thank you both for the counsel. We'll take the bill on your revised. Thank you both for your time