Legal Case Summary

Okay, it's more of this is a Microsoft no six one five month You don't have to wear it that way. Oh, it's holding. Give me your arm. May I please report good morning. Your honor, my name is Jason Kravitz with Nick Sampi, but I represent Hank Sbacone in this action and his capacity as Trustee of the General and Secured Criticators Liquidation Trust of that one corporation on a Metaphil, and in the name of the Actual Liquidating Trust of that one corporation. With me and Council's here, my honor is Council for Jagman Crawford as Trustee for the AAH, I'll see that's Mr. Mark Davies. Your honor, the District Court granted Microsoft's motion for a summary judgment in this case. There's only one issue that precluded, or prevented this case from proceeding to the jury, specifically the decision that Sukhoen failed to offer evidence sufficient to establish the general issue of material effect concerning whether smart tag functionality determines topics. The District Court aired because it overlooked the record evidence, specifically substantial expert testimony from a qualified expert, never any dispute about the expert's qualifications, in which he opined that smart tag functionality does in fact literally determine topics for purposes of claims to be up. Just Kravitz, you're suggesting there's only one issue, I think it's two issues with this. There are two issues that we're going to be talking about today, honor. Certainly, there are issues that the subject might appeal in certain issues, like Microsoft's cross-check on the stand. For purposes that you'd like to talk about, the Stanley issues. I will talk about it right now if you're out of prefer. Unless you have standing, you really have to go sit down. I agree, your honor. I think I'm appropriately standing here because I think my clinic does have standing in this action. I'm happy to flip my arm when we can talk about standing. I do want to reserve some time to come back to the issues that I started with with the courts and the indulgence. Microsoft in its cross-check does in fact claim that my clinic doesn't have standing to a server to enforce 647 pad. Specifically, Microsoft claims that the transfer of rights in this very complex... You know what Microsoft claims, what I want to know is, what do you think G-owned after the George Plan of liquidation was? Who, what was it that you understand the initial requisite, what do you use G for your credit or general creditors itself? What do you think G-owned would regard to the 647 pad? I think G-owned all the substantial rights incident ownership. Specifically, G-owned the exclusive rate to enforce the 647 pad. That's undisputed. The question of course is, does it have that rate without the commensurate, without the accompanying of additional rights? And I believe that it does

. G is the beneficial owner. G could G manufacture the product? G cannot manufacture the product. G cannot manufacture the product. G license it? Yes, G can license it. There's a dispute. Let me back up for one moment for everybody. Under the state of the laws that's now before us could G license it. G does not have the right to license independent settlement. That's minor, is that you run a district court as ruled by virtue of the appeal from the bankruptcy decision? The district court as ruled and that is absolutely the laws it stands today. The A rather than G has the independent rights license to the pad. That's what you actually put out. By the way, is that case still sitting at the night circuit? That case is, that case. Our records, the best we can find was that it was briefed over a year ago, has it been argued? It has not been argued for owners in my understanding that the court moves much more equipment than the night circuit apparently. But that case is still pending and there's absolutely the intention to pursue it. However, you run two important things. You asked me this, G have the right to manufacture. No one has the right to manufacture. I love this. Exactly. Besides the point, the question is, what is it that G, I think G owns a chosen action? I disagree, Your Honor. I think G was given a show as an action, along with a whole lot of other things incident, a whole lot of other rights incident ownership. In fact, I'm not even sure G owns a chosen action. At the time of the joint plan of liquidation was approved, had any action been taken to enforce the 647 pad? At the time that the joint plan was approved by the bankruptcy court, the action had been taken. I'm afraid I don't really answer that. Yes, it was no, because the suit wasn't filed until some time later, unless I misread the record. In which case, G didn't even have a chosen action, because there had never been a legal claim of any claim. So the most G owned was a potential chosen action

. A potential claim against a possible infringement. Isn't that really where we were at the time the joint plan of liquidation was approved? I don't agree with that, Your Honor. I think my understanding of a chosen action is that it necessarily presumes that there's not necessarily a right cause of action. It is causes of action as both that are real and substantial. No, potential chosen action is the co-ing of that. Okay, fair enough, but let me address your point by getting back to the issue of what specifically G took possession of. What rights were transferred to G? That is the question. And in order to answer that question, we also have to consider what rights were transferred to G. So first we have to remember this is ad-lib corporation, no longer has anything. It's a fun corporation, all of those assets are now somewhere else. The sense of result of the bankruptcy plan of liquidation, that's right, which enacted for all practical purposes, is settled with me. Yes, Your Honor. And emphasis on liquidation is three liquidations for us that are designed to liquidate assets. They are prohibited by law from engaging in commerce. And they can't, none of these patents has the right to make use of sell under the 647 patent. So what does G have? G has the exclusive right to enforce against all parties except Cox, Comcast and AT&T. G also has the exclusive right to decide who to investigate and who to sue for purposes of enforcement in 647. That's hard. Well, let's think about what rights G doesn't have. A has legal title, undisputed. A has legal title, but it holds that title in trust for the benefit of the beneficiary. I don't think care what A has. We care what A has because the law on this court requires us to look at what was transferred and what was retained. Or what was transferred to his court requires us to decide whether G, who has the plaintiff in this case, has standing the frame of infringement action against the defendant. An infringement action based on a patent, the 647 patent, in the statute said, who does the statute say can bring infringement actions? Patent T. Patent T. Is G a patent T? G is not a patent T

. G is a virtual patent T. That's a well-established principle under the president of this court. If all substantial rights are transferred, you are in effect at the all-in-assity of a virtual patent. Well, fair enough, Your Honor, but I would suggest that the law, it's Section 281 in which this construct has been discussed by the Court's runner. We have four categories. We have pure assignments in which cases know this view. The right title on interest in the patent is assigned over such as an adventure to a sign that is written under an employment agreement. Then we have the virtual assignee, which is, we're all substantial rights transferred to this person or entity. Then we have exclusive licensee, and then we have bear licensee. In this case, you're under it. I think the facts are pretty compelling that we have a virtual assignee situation here. A owns legal settlement. To a case that deals with something called a virtual assignee, that is what I call it. A virtual assignee, which holds that a virtual assignee, even to the close to confused. That a virtual assignee is a proper plaintiff. Do we have a case that says that? I believe you're on a, there is a case out there. I can't say which one I think it might be a vote-pell, where that phrase would actually use. Other phrases are a tantamount to assignee, or other phrases are effective assignee for purposes of this analysis. This is, and if there are all substantial rights in that entity, if all substantial rights incidents ownership were transferred, that party has standing. And what are the virtual rights incidents ownership that have happened? There are two very categories. One is the statutory grant, which is the right to preclude others for making use of your selling. G have that. G has that. And the other one is the natural rights, which of course goes back to 150, 300 years of precedent, where we talk about the right to make use of selling your invention. One's invention. Those rights don't belong to anybody in this case, because of the very peculiar circumstances that are confronting this court. No, it's your view that we, I mean this is not really patent law, I mean that we should apply a different principle to standing here because of the different rights affected by this, the transcease shifts and the whole bankruptcy proceeding

. You're on a, I don't think we need to apply, I think the standard still applies. It's the well-established standard that this court has addressed it probably a dozen times. But at this level of the trial court said, drop what I said, I can't get there under patent law, but I can get there under bankruptcy law. This fact, yeah, the trial court did say that, and I think that there's some truth in that I think the appropriate way to characterize that is these are unusual circumstances. This court has never confronted, we've looked at all the cases and Microsoft has looked at all the cases. This court has never confronted anything similar to this situation where you have three liquidating trusts, none of whom have the right by law to practice the invention. So that, in my view, you're on it is reasonable to take that factor out of consideration because that right was not retained by anybody. But it doesn't, A, have the right to license people? A, has the right to license a book, but it can't. No, it cannot, because it can't practice, it is by law prohibiting under the trust. It's a liquidating trust, which is a defined, not only the trust agreement itself says, you cannot engage in business activity. Each of those three trusts have that. But if the license is just someone who will then make a good bet. It could accept or not, it can't engage, it can't engage in business activity. So what purpose would it have for licensing that it is against the law for it to do that? I think we just said it can license a nice. It has the right before it is the right to license. It cannot exercise that right without breaching its prohibitions, its settlement agreement, requiring a rule that has a solution to that problem between A and the other parties to that settlement agreement. That's their problem, not ours. Your Honor, I don't think you can separate this view. I don't think that you can separate the rights incident and ownership. All substantial rights analysis from the fact that in this particular case, this peculiar case, we have circumstances where no one is allowed to do that. All these are A to new. You just like Bell felt to us, didn't Bell felt in that case? No, they were in fact a licensee as well. That is correct. We are not licensed to make use of ourselves. So you clearly don't have the same bundle of rights as Bell felt? No you are right, I suggest we have a right to be young but they haven't. You don't have rights to make use of yourself. You don't have to license

. You don't have to set everybody, you only have to make use of yourself. That's correct, Your Honor. You can even have a much smaller bundle of rights. We have some very important rights. A, that holds the title to the 647 patent. Can't sell the patent without my client's question. My client is an absolute veto over whether or not A can do anything with that patent. But now that's nothing to do with your right to be opposed. That is just to contract the OB-QA and G a day. Your Honor, every transfer or assignment situation at some level deals with a contract. Usually it's in the context of a license agreement. Here's in the context of a bank which is selling a degree as you characterize it. So there's always a contract issue at play in this analysis. And if we get back to the principle of we're all substantial rights of ownership given to G. And by virtue of that we have to look at what was obtained, what was not given to G. A can't transfer this patent to anybody without my client saying that's okay. A can't do anything to appear in the value of this patent. A can't do anything except cooperate with reasonable cooperation to my client. In my client's efforts to enforce the patent. You do agree that A owns the patent. A owns the legal title to the patent. My client is the beneficiary of it. When A sells it, when the patent is determined to have any value or it is determined that it is right for sale. My client gets 45% of the proceeds. And the other trust, the bond of the trust gets 55%. It just seems to me that I'm sorry. It just seems to me that it's a case of the lot more or more like our growth and decision

. And the growth at the end held a lot more of the rights than your client does here. And you still ultimately ruled they didn't have to bring suit. So in that case, it was even quoted as long been no of their rights to suit laws and a contract. On a company by the trans-broad firm, a other incident with ownership does not constitute a sign of patent rights. It entitles the transfer of a suit and it's not a name. And there's just a long, long, long, realistic cases which all support that proposition. So how do you distinguish yourself from the pro-pet position? You're honor and I'm into my rebuttal time, but obviously this is critical stuff. You're our pro-pet. I've heard the case number of times. They do not have the money, and they do. They did not have as many rights of ownership as we're transparent towards my client in this case. And pro-pet was unclear. This is specifically discussed in the court's opinion. It was unclear where the pro-pet had the right to make users sell under the agreement in that case. So in our situation, that's analogous to our situation. It's not directly parallel. But in the pro-pet case, very importantly, they say that when all else fails, we have to go back to the crown die stand. Because I think they recognize a pro-pet. They did have any of the rights of rights. I believe that's correct, Mark. In this case, in our case, there are eight technical ways of the right to license, but they can't do it. And in pro-pet, they had the right to veto assignments of the patent. Just like that right in the town, it's me a minute ago, as a very important one that you said your client had. Well, pro-pet had that too. And the right to license what you don't have, they had the right to bring all of them all to the students. And yet, we still don't know standing. Yes, sir

. We have that they don't. We have, we have, we are beneficial owners of this trust. Pro-pet was not a beneficial owner of the patent. They have the right to 100% of the proceeds from all licensing and the issue. How is that not make them a beneficial owner in that regard? They are not. We are beneficial owners to proceed with a trust charter. A is holding this patent for me for my children. But if you're not a percent of the money, you're bringing from the law, so you only get 55%. No, you're not bringing me up. You're 45. You're a minority. You're already called. You're honored. I'm at a time of difficulty. I just do just to answer your question. We get 100% of the money of any recovery from the lawsuits that we bring. Mr. Pep, can I, I don't want to answer your question. Your question answered for you for Judge Moore's question. But it seems to me that in pro-pet, the court also referenced the fact that important factors were that they had to, pro-pet had to get consent to select its targets in suing. Do you have that requirement? We have absolute discretion as to who to investigate and who to sit. And pro-pet also, the court mentioned that they bring in requires to correct to use reasonable efforts to insist on business cooing, business practices, and its enforcement efforts and some licensing. Do you have a requirement that you have to use reasonable efforts? I don't believe we have that. Business practices. I don't believe we have that requirement here on our note. I think we did purely within our discretion. So who to investigate and who to sit

. Well, why don't you, I will restore your report on my interest at Donald and listen to Mr. Shepnick. Thank you very much. Thank you. Good morning, Your Honours. I'm Craig Sherb, the official jurisdiction of my colleague Charles Sanders. Here on behalf of Microsoft, may please the court. I intend only to address the standard issues because... Well, in light of that, I appreciate that. Is A alone sufficient to bring suit to his target? Well, not the way they have the rights present. They invited them. In fact, that's one of our fundamental points. They made such a mess of things. There is no single target today who can enforce his target. Well, what about two? Okay, so the answer to A alone is no. What about A plus G? Well, if they try again and change in a substantial way, the rights of G has... No, no, no. You're talking about the correct answers. No, the answers no. So in other words, you're saying that this contractual, this division that occurred in the connection with bankruptcy is essentially meant that the patent is no avoid. That nobody can enforce the patent. As of today, the answer to that question is yes. Excuse me

. Why did you answer the judge's questions? The question about A and G. Why did you say no? Well, because A and G today should get together and say, oh, good, let's go after Microsoft. Why wouldn't that work? Because two reasons. A has no right to suit. A has a sign does. But G does the chosen action. There's no question about that. Well, A has the title. There's no question about that. You put the title together with the owner of the chosen action. I, you're right to enforce the title. It seems to me you've got a hold. Well, you know that W is not an age. I think it's a good age. And I'll tell you why. I'll be wrong. Because this party didn't need a tighter point, but this court's precedent on the standing issue, is that you can only put an A and a G together if G has be certain amount of rights. It's not enough to say that. You can only, the only sort of non-owner that can join a patent owner in a lawsuit is an exclusive licensee. No, this is not a problem of the license. There's no licensee in this case. Right. So we're not in that body of law. We're in a different body of law. We're back to the basis. The basic rule is a patentee who owns all of the rights to the patent, including the right. To manufacture a patent, to exclude others and say, hand the suit for the court wall

. That individual or that it can suit. But the end of here is a strange arrangement in which for whatever business reasons they had in mind, they split that up. A has peace of it. G has the other peace. Why can't they put those pieces back together and say, aha! Why wouldn't that work? They can't do it given the way that the rights are presently proportionate. There might be a way, in fact, we make this one in our papers, where if they go back and reapportion the rights, so that either one, that A has standing and G could join if it were an agent, if we're given the rights to direct the litigation, if we're given the rights to share it to recover the proceeds of the litigation, that would work. But you can't say, jeez, there's no standing. It doesn't matter that they have the right to sue, the detractual right to sue. So, if they're going for it, they said this since Crown High, this court has set it an unbroken line of cases. I'm giving you that purposes of the argument that I still have. I thought you might have answered. The reason A and G together can't work is because there was a private deal between A and Microsoft at some point, back in time, which is only reference, in passing the judges' opinion, in which A waived any suits against Microsoft. But interestingly, you never mentioned that and you agree. Why are you staying away from this? Well, something in there that we need to know. No, no, I mean, we have something in there you don't want us to know. No, we asked the district for a certain issue and actually placed and which issue. The release issue, that's the issue you're referring to, that A, the back of the minute, Microsoft was a large creditor of A in the magazine. Microsoft had claims against A as a result of a settle those claims A released Microsoft. We think that that was any cause of action against Microsoft in this panel. That was called. But nowhere in your agreement to us do you even mention that. Because it was not passed on by the district court and the district court felt that she didn't have to get there. Because she found that this actually gets the standing issue. The district court found that G is standing on its own. No part of G standing is derived from A or they're not, they're not suing on behalf of A. They're not suing in the name of A. The basis for the district court's decision was that G alone is enough. And council, this is, I like talking about this because it's an interesting issue. And certainly I haven't seen many of our cases where the result is nobody has to go to the suit. It's already case and you can point me to that I'm missing. In pro pad it was between two people. But there was, it didn't end up with no one had the right to suit. Right? It was a patent team retained the right to suit. It was when they choose a licensee or the patent to go to the suit. I've never seen a case where our ultimate decision on standing resulted in no one having the right to suit. I actually think the answer to that is there are such cases. I can say psych, judge process to learn with that case. Really almost all of the standing cases, that's the result. Because this court is passing on the arrangement that's before you today. Does this arrangement work? Does it confer standing? And in many, many cases this court has said no. It doesn't. Now the opinions don't go on and say and therefore as of today nobody can see on that patent. But that is absolutely the result of the court's stand. I couldn't find any other cases that raised this in the context that they fight with the whack up. Or whatever you want. They're the way they did this. Do you have any other cases? Which raises this question. Assuming, and it seems, well, let's assume to the moment that under patent law they have no standing. The trial judge said, oh, but they do under bankruptcy law because that's a different set of issues. Why should we go there? Because this is a patent case. Because the Supreme Court is a patent case in the bankruptcy context. Why shouldn't we? We have two rules now. One is the patent, and the two is the exclusive licensee who joins the patent. And the non-relief least consume

. And council, this is, I like talking about this because it's an interesting issue. And certainly I haven't seen many of our cases where the result is nobody has to go to the suit. It's already case and you can point me to that I'm missing. In pro pad it was between two people. But there was, it didn't end up with no one had the right to suit. Right? It was a patent team retained the right to suit. It was when they choose a licensee or the patent to go to the suit. I've never seen a case where our ultimate decision on standing resulted in no one having the right to suit. I actually think the answer to that is there are such cases. I can say psych, judge process to learn with that case. Really almost all of the standing cases, that's the result. Because this court is passing on the arrangement that's before you today. Does this arrangement work? Does it confer standing? And in many, many cases this court has said no. It doesn't. Now the opinions don't go on and say and therefore as of today nobody can see on that patent. But that is absolutely the result of the court's stand. I couldn't find any other cases that raised this in the context that they fight with the whack up. Or whatever you want. They're the way they did this. Do you have any other cases? Which raises this question. Assuming, and it seems, well, let's assume to the moment that under patent law they have no standing. The trial judge said, oh, but they do under bankruptcy law because that's a different set of issues. Why should we go there? Because this is a patent case. Because the Supreme Court is a patent case in the bankruptcy context. Why shouldn't we? We have two rules now. One is the patent, and the two is the exclusive licensee who joins the patent. And the non-relief least consume. Why shouldn't there be a third category that says a holder of a chosen action with the agreement. And I assume I would agree with this. With the agreement of the holder of the title in the bankruptcy context. Can also assume. We should not have without. The answer to your question is because Congress didn't say so. All patents are statutes for it. The standing requirements are statutes for it. The Supreme Court again has said over and over. You look at Crown Dodd. It's all about the statute. I think this case is actually just like Crown Dodd, where an owner says there's a classic parties out there that I'd like you to go sue, go get it, and that's the other way around. I mean, I know what propact said about Crown Dodd. But if you've been Crown Dodd, I'd read it as saying in several portions. It seems to be only above whether or not the assignator of the personal director's suit can come in by himself. It seems to me the court doesn't suggest that he could bring someone else that's explicitly. But it seems to me the Supreme Court was not deciding whether or not he could bring him in. That would be satisfactory. The court continuously refers to the fact that he himself, in other words, in this case, Jeep himself would not go. But I think we've been talking here about not Jeep himself. Either A plus G or A low. And so why do you think that Crown necessarily just poses a bad issue? Well, because the plaintiff in Crown Dodd and I tried to argue that he could do in equity, he had the acquittal right. Why does that happen? Well, deciding whether he by himself could proceed. And the court said a few times, he alone cannot. We're already reading in Crown Toul that it decided the issue of whether or not if the other person is in the case. So this gets back to Jeep's players question. I think it follows from the reasoning of Crown Dodd because the opinion proceeds from the basis that rights are statutory

. Why shouldn't there be a third category that says a holder of a chosen action with the agreement. And I assume I would agree with this. With the agreement of the holder of the title in the bankruptcy context. Can also assume. We should not have without. The answer to your question is because Congress didn't say so. All patents are statutes for it. The standing requirements are statutes for it. The Supreme Court again has said over and over. You look at Crown Dodd. It's all about the statute. I think this case is actually just like Crown Dodd, where an owner says there's a classic parties out there that I'd like you to go sue, go get it, and that's the other way around. I mean, I know what propact said about Crown Dodd. But if you've been Crown Dodd, I'd read it as saying in several portions. It seems to be only above whether or not the assignator of the personal director's suit can come in by himself. It seems to me the court doesn't suggest that he could bring someone else that's explicitly. But it seems to me the Supreme Court was not deciding whether or not he could bring him in. That would be satisfactory. The court continuously refers to the fact that he himself, in other words, in this case, Jeep himself would not go. But I think we've been talking here about not Jeep himself. Either A plus G or A low. And so why do you think that Crown necessarily just poses a bad issue? Well, because the plaintiff in Crown Dodd and I tried to argue that he could do in equity, he had the acquittal right. Why does that happen? Well, deciding whether he by himself could proceed. And the court said a few times, he alone cannot. We're already reading in Crown Toul that it decided the issue of whether or not if the other person is in the case. So this gets back to Jeep's players question. I think it follows from the reasoning of Crown Dodd because the opinion proceeds from the basis that rights are statutory. Haberites are statutory. Stand rights to stand in our statute. Well, let me ask you about that one. I'm sorry to keep that up here, but I want to make sure I have enough. In Waterman, which is one of the cases, I'm sure the Supreme Court cases have preceded all of this. There's a statement at page three, in which is inequity as a law when the transfer amounts to a license only. The title remains with the owner of the patent that's been denied his name and never the name of the license he alone. Unless that is necessary to prevent an absolute failure of justice as where the patent is, the infringer and the not so himself. Why could we, in this case, say, the end of your right, but the upshot of what you're saying, if we agree with you, as Judge Woodward pointed out, no one has the right to enforce the patent. Why could we apply the absolute failure of justice in this context? Because there is no absolute failure of justice. That statement in Waterman was getting at the situation where no one could enforce the patent ever. In this case, maybe somebody can enforce this patent if they go back and they do their homework and they fix it. There's no reason to believe that's going to happen because of these trusts. This is a divorce. And on this issue, I suppose you're a divorce court here. Councilor Woodward, you can decide this issue. Why did you interest me in the academic? I could have it nonetheless. A&G did not join to ring students in Microsoft. The district court did not rule whether A&G together had standing. Maybe while they would make for a more interesting case, it's not one of the courts, isn't it? It's not the one before you. But I do. A&G is in the case. Isn't that under our case law sufficient? I mean, they're there. They're there. They're there. They're there as part of the conflict. Why does not not mean that A&G is there and we can decide any standing in this group

. Haberites are statutory. Stand rights to stand in our statute. Well, let me ask you about that one. I'm sorry to keep that up here, but I want to make sure I have enough. In Waterman, which is one of the cases, I'm sure the Supreme Court cases have preceded all of this. There's a statement at page three, in which is inequity as a law when the transfer amounts to a license only. The title remains with the owner of the patent that's been denied his name and never the name of the license he alone. Unless that is necessary to prevent an absolute failure of justice as where the patent is, the infringer and the not so himself. Why could we, in this case, say, the end of your right, but the upshot of what you're saying, if we agree with you, as Judge Woodward pointed out, no one has the right to enforce the patent. Why could we apply the absolute failure of justice in this context? Because there is no absolute failure of justice. That statement in Waterman was getting at the situation where no one could enforce the patent ever. In this case, maybe somebody can enforce this patent if they go back and they do their homework and they fix it. There's no reason to believe that's going to happen because of these trusts. This is a divorce. And on this issue, I suppose you're a divorce court here. Councilor Woodward, you can decide this issue. Why did you interest me in the academic? I could have it nonetheless. A&G did not join to ring students in Microsoft. The district court did not rule whether A&G together had standing. Maybe while they would make for a more interesting case, it's not one of the courts, isn't it? It's not the one before you. But I do. A&G is in the case. Isn't that under our case law sufficient? I mean, they're there. They're there. They're there. They're there as part of the conflict. Why does not not mean that A&G is there and we can decide any standing in this group. If A&G has standing, we're done and they don't have to bring them back. Right? I mean, that case law supports that. Your case law does support that. But again, this is the argument based on evidence. The evidence based it. Right. And it's a different situation. Can you cure a standing problem by bringing the patent owner in later? Maybe. The patent owner is here and we brought him in by counterclam. Why does that not cure the case? If we assume that A&G is there is sufficient. Because G has no standing. You can't adhere up. But wait a minute. What? The first is saying if A&G has standing, they're both now before us. If the combination A keeps saying G has no standing, we know G at least we're getting the impression from you at least. That G has no standing. But the question that Judge first is trying to get you to this lesson. Is it not the case that by bringing A in your counterclam, you have now presented us with the issue of whether A&G to get at standing to bring this patent in front of the suit? Have we presented the issue? Yes. The answer to the issue is it still doesn't solve the problem. Because G under any view of the world alone with A does not have standing to participate. A&G has standing to bring this suit. A&G has standing. Does A&G have standing? Yes. It's constitutional standing because they hold the patent and they suffer an injury fact if Microsoft indeed isn't Frenching it. Yes. But they don't belong in court. That's the first part of the answer

. If A&G has standing, we're done and they don't have to bring them back. Right? I mean, that case law supports that. Your case law does support that. But again, this is the argument based on evidence. The evidence based it. Right. And it's a different situation. Can you cure a standing problem by bringing the patent owner in later? Maybe. The patent owner is here and we brought him in by counterclam. Why does that not cure the case? If we assume that A&G is there is sufficient. Because G has no standing. You can't adhere up. But wait a minute. What? The first is saying if A&G has standing, they're both now before us. If the combination A keeps saying G has no standing, we know G at least we're getting the impression from you at least. That G has no standing. But the question that Judge first is trying to get you to this lesson. Is it not the case that by bringing A in your counterclam, you have now presented us with the issue of whether A&G to get at standing to bring this patent in front of the suit? Have we presented the issue? Yes. The answer to the issue is it still doesn't solve the problem. Because G under any view of the world alone with A does not have standing to participate. A&G has standing to bring this suit. A&G has standing. Does A&G have standing? Yes. It's constitutional standing because they hold the patent and they suffer an injury fact if Microsoft indeed isn't Frenching it. Yes. But they don't belong in court. That's the first part of the answer. They still wouldn't have why don't they belong in court? Because they gave away their right to suit. They have no right to suit today. They've given that away. Can they bring GG? They can A&G. Why can A&G? Because G doesn't have any proprietary rights in the patent. So you see that we should analogize it between... there's a patent being denounced everything. And then say there's some private attorney general type person who wants to bring a litigation to enforce that patent because the patent is a tacit bit. Because you want us to think of G as the person who owns nothing at all. And therefore, clearly have no standing to be involved in the lawsuit. That's kind of what we do with the patent. Right. And this is not... It sounds no nothing at all. Actually, they do own nothing at all. They don't have nothing. They have a chosen action as of the time that the actual case was brought up. I have a little problem with what they owned at the time that we joined the plan to play and it wasn't proved. Because at that point, there was no chosen action. There was only an empty deposit that would write the word. And I don't know how that could write in at that point, at least under the rule of time the law, but maybe things have changed by this century. I have it, but maybe the law has. But putting that whole issue aside, G does have something

. They still wouldn't have why don't they belong in court? Because they gave away their right to suit. They have no right to suit today. They've given that away. Can they bring GG? They can A&G. Why can A&G? Because G doesn't have any proprietary rights in the patent. So you see that we should analogize it between... there's a patent being denounced everything. And then say there's some private attorney general type person who wants to bring a litigation to enforce that patent because the patent is a tacit bit. Because you want us to think of G as the person who owns nothing at all. And therefore, clearly have no standing to be involved in the lawsuit. That's kind of what we do with the patent. Right. And this is not... It sounds no nothing at all. Actually, they do own nothing at all. They don't have nothing. They have a chosen action as of the time that the actual case was brought up. I have a little problem with what they owned at the time that we joined the plan to play and it wasn't proved. Because at that point, there was no chosen action. There was only an empty deposit that would write the word. And I don't know how that could write in at that point, at least under the rule of time the law, but maybe things have changed by this century. I have it, but maybe the law has. But putting that whole issue aside, G does have something. And it's unliquidated legal title. That's what they own. And that is not what you're talking about standing, which is statutory and constitutional actually at some level. Holding an unliquidated legal claim is relevant. It is irrelevant. They cannot participate at all unless they own proprietary rights in the patent. That means legal title. Or enough of the legal title and the incidents of legal title that they are in effect the legal title. Is the assignment valid, Simon and Nicole of Crown Tool? I mean, did A have the right to assign the right to serve as a did and to G? Valid in the sense that A, today have that right to give away. Yes, A had that right to give away. It's not valid in a standing sense because it doesn't give that just that right away, which is all the G has. That doesn't mean for a standing issue. Why don't we restore some of your results on time if you need it and offer the church's Mr. Crackett. Thank you. Mr. Crackett, you need some more of your stuff. I love the Crackett dying case because it uses the phrase Chosen Action, which is so rarely here this day. Let me read to you a sentence to the seems to be a tea of this problem for at least your own perspective. It is said that the claim of an owner of a patent for damages from Fringeman is only a Chosen Action, which in modern days may be so assigned that the Ascony acquires full title and the right to sue it laws well as inequity without joining his assort or this view ignores the peculiar character of a patent property. And the recognized rules for the transfer of its ownership and its incidents. Patent property is the creature statute law and its incidents are equally so. And depend upon the construction to be given to the statutes creating a hand then in view of the policy of Congress in their enactment. The trial judge didn't believe that. The trial judge says no, in this case the rights of duty are defined by bankruptcy law. Assuming we believe Proudi, are you sort of stuck with the patent law problem and are you trying to tell us that UG has standing on its own under patent law? I just want to be sure I understand exactly where you're talking for sure. I'm going to address your question directly

. And it's unliquidated legal title. That's what they own. And that is not what you're talking about standing, which is statutory and constitutional actually at some level. Holding an unliquidated legal claim is relevant. It is irrelevant. They cannot participate at all unless they own proprietary rights in the patent. That means legal title. Or enough of the legal title and the incidents of legal title that they are in effect the legal title. Is the assignment valid, Simon and Nicole of Crown Tool? I mean, did A have the right to assign the right to serve as a did and to G? Valid in the sense that A, today have that right to give away. Yes, A had that right to give away. It's not valid in a standing sense because it doesn't give that just that right away, which is all the G has. That doesn't mean for a standing issue. Why don't we restore some of your results on time if you need it and offer the church's Mr. Crackett. Thank you. Mr. Crackett, you need some more of your stuff. I love the Crackett dying case because it uses the phrase Chosen Action, which is so rarely here this day. Let me read to you a sentence to the seems to be a tea of this problem for at least your own perspective. It is said that the claim of an owner of a patent for damages from Fringeman is only a Chosen Action, which in modern days may be so assigned that the Ascony acquires full title and the right to sue it laws well as inequity without joining his assort or this view ignores the peculiar character of a patent property. And the recognized rules for the transfer of its ownership and its incidents. Patent property is the creature statute law and its incidents are equally so. And depend upon the construction to be given to the statutes creating a hand then in view of the policy of Congress in their enactment. The trial judge didn't believe that. The trial judge says no, in this case the rights of duty are defined by bankruptcy law. Assuming we believe Proudi, are you sort of stuck with the patent law problem and are you trying to tell us that UG has standing on its own under patent law? I just want to be sure I understand exactly where you're talking for sure. I'm going to address your question directly. The first one is that I don't think you can separate bankruptcy law and patent law in this case because they're going hand-to-hand down in this road. I think that's your best argument, sir, but I don't want to do a good start. Anyway, I understand that. But you want to think, and let me just address Chosen Action very briefly, Your Honor. I don't pretend to be an expert in property, but if Microsoft for purposes of discussion here today of Microsoft within fridging as of the time that that plan was enacted, I think that's a Chosen Action. I don't think it's any going right or really going on, that would be great. Putting that aside, to address your question more directly, Crown Die governs this case for purposes of whether they're standing on the patent context. We have to look at that and answer that question in the context of how this peculiar arrangement came to date, through the establishment of the formation of these liquidated trust that have very limited abilities to do anything. Crown Die says something, and this court has interpreted Crown Die a number of occasions in the context of the standing, most recently in Propept. What Crown Die says is, it's not about legal title, it's about proprietary rights in the patent. There is absolutely no question, Your Honor, that G has proprietary rights as patent. We already beneficiary of the trust that holds it. That is not insignificant, and beneficiaries have beneficial interests in the property, in the court, of the trust. We are beneficial owners of it, in no case that we could find deals with that issue, and it is not one that we can, I respectfully suggest, can just dismiss lightly. That is a proprietary interest in the patent. For Mr. Sheridan, Dr. Sir, we have no proprietary rights. I don't think that's true, Your Honor. I think that's actually incorrect. We absolutely have proprietary interest in this patent. We also have rights that go beyond the mere beneficial ownership. We have the right to control what happens with this patent. That is significant. It cannot be transferred without our blessing. That's very significant. Your Honor, your use of the phrase proprietary interest, that of course, comes out of the court, at least, is supported in private tax

. The first one is that I don't think you can separate bankruptcy law and patent law in this case because they're going hand-to-hand down in this road. I think that's your best argument, sir, but I don't want to do a good start. Anyway, I understand that. But you want to think, and let me just address Chosen Action very briefly, Your Honor. I don't pretend to be an expert in property, but if Microsoft for purposes of discussion here today of Microsoft within fridging as of the time that that plan was enacted, I think that's a Chosen Action. I don't think it's any going right or really going on, that would be great. Putting that aside, to address your question more directly, Crown Die governs this case for purposes of whether they're standing on the patent context. We have to look at that and answer that question in the context of how this peculiar arrangement came to date, through the establishment of the formation of these liquidated trust that have very limited abilities to do anything. Crown Die says something, and this court has interpreted Crown Die a number of occasions in the context of the standing, most recently in Propept. What Crown Die says is, it's not about legal title, it's about proprietary rights in the patent. There is absolutely no question, Your Honor, that G has proprietary rights as patent. We already beneficiary of the trust that holds it. That is not insignificant, and beneficiaries have beneficial interests in the property, in the court, of the trust. We are beneficial owners of it, in no case that we could find deals with that issue, and it is not one that we can, I respectfully suggest, can just dismiss lightly. That is a proprietary interest in the patent. For Mr. Sheridan, Dr. Sir, we have no proprietary rights. I don't think that's true, Your Honor. I think that's actually incorrect. We absolutely have proprietary interest in this patent. We also have rights that go beyond the mere beneficial ownership. We have the right to control what happens with this patent. That is significant. It cannot be transferred without our blessing. That's very significant. Your Honor, your use of the phrase proprietary interest, that of course, comes out of the court, at least, is supported in private tax. That's where any patent particularly right here, among others, is the private taxes standing to sue for infringement, depends entirely on the future to complain to this proprietary interest in the patent. If you are making the argument that somewhere in the arrangement that you have is something holding proprietary. Well, I don't think it's as subtle as your suggestion, Your Honor. I think by virtue of being a beneficiary of this trust that holds the patent, we have proprietary rights. I think that's a matter of a established trust law. It's also a matter of the law of this. There's a decision from the CCP at a sports predecessor that doesn't deal with the issues that we're talking about today. But clearly, this issue of trust's owning patents and beneficiaries of trust's own patents, those are ownership interests. That is proprietary right. I don't think we can just ignore that. It's a significant fact. Thank you. Thank you, Mr. Chairman. Very great. Thank you, Your Honor. On this question of proprietary, the label is meetings. The question is, what rights does G hold? The proprietary means legal title. It means some portion of legal title. Judge, the player, I'm glad to talk about Crown Die. If you can look any number of places in Crown Die, where the court says, over and over again, the plaintiff must have legal title to the patent. Legal title to the patent because that's what the statute says. Mr. Rysam, the statute. What are you going to do? On this question of, are we contending for a world where no one can enforce this patent? The answer is no. There might be a world where somebody can enforce this patent. If they had done it right initially, we wouldn't have this argument

. That's where any patent particularly right here, among others, is the private taxes standing to sue for infringement, depends entirely on the future to complain to this proprietary interest in the patent. If you are making the argument that somewhere in the arrangement that you have is something holding proprietary. Well, I don't think it's as subtle as your suggestion, Your Honor. I think by virtue of being a beneficiary of this trust that holds the patent, we have proprietary rights. I think that's a matter of a established trust law. It's also a matter of the law of this. There's a decision from the CCP at a sports predecessor that doesn't deal with the issues that we're talking about today. But clearly, this issue of trust's owning patents and beneficiaries of trust's own patents, those are ownership interests. That is proprietary right. I don't think we can just ignore that. It's a significant fact. Thank you. Thank you, Mr. Chairman. Very great. Thank you, Your Honor. On this question of proprietary, the label is meetings. The question is, what rights does G hold? The proprietary means legal title. It means some portion of legal title. Judge, the player, I'm glad to talk about Crown Die. If you can look any number of places in Crown Die, where the court says, over and over again, the plaintiff must have legal title to the patent. Legal title to the patent because that's what the statute says. Mr. Rysam, the statute. What are you going to do? On this question of, are we contending for a world where no one can enforce this patent? The answer is no. There might be a world where somebody can enforce this patent. If they had done it right initially, we wouldn't have this argument. If maybe they can fix it in the future and if the release issue doesn't otherwise end the case and they can get past the merits, they've also lost them, by the way. And doing it right again is just briefly. Well, they have to rearrange the rights between these trusts or create another trust that holds sufficient rights in the patent that they have stated. The rules are clear. The court has said, in fact, you look at pro-pap. You look at the court's recent cases on standing and you keep saying, we've been over this and over and over it. And why can't you guys get it right? If they rearrange the rights correctly, you won't come back up here and argue that they didn't wrong again. Well, if they do it right, they'll make a deal with you. That's right. But then I'll be up here arguing that they should have lost them in the Americans. But again, this is not the first and only case to abolish the bankruptcy. This is not the first and only case to abolish trust that holds a patent. There's lots of them up there. And they do it right and the standing issue doesn't come on. These guys couldn't get it right because it's a divorce and they couldn't get it along. I don't know why. But don't not get your words or let's not make new law to deal with the situation they create. Thank you very much.

Okay, it's more of this is a Microsoft no six one five month You don't have to wear it that way. Oh, it's holding. Give me your arm. May I please report good morning. Your honor, my name is Jason Kravitz with Nick Sampi, but I represent Hank Sbacone in this action and his capacity as Trustee of the General and Secured Criticators Liquidation Trust of that one corporation on a Metaphil, and in the name of the Actual Liquidating Trust of that one corporation. With me and Council's here, my honor is Council for Jagman Crawford as Trustee for the AAH, I'll see that's Mr. Mark Davies. Your honor, the District Court granted Microsoft's motion for a summary judgment in this case. There's only one issue that precluded, or prevented this case from proceeding to the jury, specifically the decision that Sukhoen failed to offer evidence sufficient to establish the general issue of material effect concerning whether smart tag functionality determines topics. The District Court aired because it overlooked the record evidence, specifically substantial expert testimony from a qualified expert, never any dispute about the expert's qualifications, in which he opined that smart tag functionality does in fact literally determine topics for purposes of claims to be up. Just Kravitz, you're suggesting there's only one issue, I think it's two issues with this. There are two issues that we're going to be talking about today, honor. Certainly, there are issues that the subject might appeal in certain issues, like Microsoft's cross-check on the stand. For purposes that you'd like to talk about, the Stanley issues. I will talk about it right now if you're out of prefer. Unless you have standing, you really have to go sit down. I agree, your honor. I think I'm appropriately standing here because I think my clinic does have standing in this action. I'm happy to flip my arm when we can talk about standing. I do want to reserve some time to come back to the issues that I started with with the courts and the indulgence. Microsoft in its cross-check does in fact claim that my clinic doesn't have standing to a server to enforce 647 pad. Specifically, Microsoft claims that the transfer of rights in this very complex... You know what Microsoft claims, what I want to know is, what do you think G-owned after the George Plan of liquidation was? Who, what was it that you understand the initial requisite, what do you use G for your credit or general creditors itself? What do you think G-owned would regard to the 647 pad? I think G-owned all the substantial rights incident ownership. Specifically, G-owned the exclusive rate to enforce the 647 pad. That's undisputed. The question of course is, does it have that rate without the commensurate, without the accompanying of additional rights? And I believe that it does. G is the beneficial owner. G could G manufacture the product? G cannot manufacture the product. G cannot manufacture the product. G license it? Yes, G can license it. There's a dispute. Let me back up for one moment for everybody. Under the state of the laws that's now before us could G license it. G does not have the right to license independent settlement. That's minor, is that you run a district court as ruled by virtue of the appeal from the bankruptcy decision? The district court as ruled and that is absolutely the laws it stands today. The A rather than G has the independent rights license to the pad. That's what you actually put out. By the way, is that case still sitting at the night circuit? That case is, that case. Our records, the best we can find was that it was briefed over a year ago, has it been argued? It has not been argued for owners in my understanding that the court moves much more equipment than the night circuit apparently. But that case is still pending and there's absolutely the intention to pursue it. However, you run two important things. You asked me this, G have the right to manufacture. No one has the right to manufacture. I love this. Exactly. Besides the point, the question is, what is it that G, I think G owns a chosen action? I disagree, Your Honor. I think G was given a show as an action, along with a whole lot of other things incident, a whole lot of other rights incident ownership. In fact, I'm not even sure G owns a chosen action. At the time of the joint plan of liquidation was approved, had any action been taken to enforce the 647 pad? At the time that the joint plan was approved by the bankruptcy court, the action had been taken. I'm afraid I don't really answer that. Yes, it was no, because the suit wasn't filed until some time later, unless I misread the record. In which case, G didn't even have a chosen action, because there had never been a legal claim of any claim. So the most G owned was a potential chosen action. A potential claim against a possible infringement. Isn't that really where we were at the time the joint plan of liquidation was approved? I don't agree with that, Your Honor. I think my understanding of a chosen action is that it necessarily presumes that there's not necessarily a right cause of action. It is causes of action as both that are real and substantial. No, potential chosen action is the co-ing of that. Okay, fair enough, but let me address your point by getting back to the issue of what specifically G took possession of. What rights were transferred to G? That is the question. And in order to answer that question, we also have to consider what rights were transferred to G. So first we have to remember this is ad-lib corporation, no longer has anything. It's a fun corporation, all of those assets are now somewhere else. The sense of result of the bankruptcy plan of liquidation, that's right, which enacted for all practical purposes, is settled with me. Yes, Your Honor. And emphasis on liquidation is three liquidations for us that are designed to liquidate assets. They are prohibited by law from engaging in commerce. And they can't, none of these patents has the right to make use of sell under the 647 patent. So what does G have? G has the exclusive right to enforce against all parties except Cox, Comcast and AT&T. G also has the exclusive right to decide who to investigate and who to sue for purposes of enforcement in 647. That's hard. Well, let's think about what rights G doesn't have. A has legal title, undisputed. A has legal title, but it holds that title in trust for the benefit of the beneficiary. I don't think care what A has. We care what A has because the law on this court requires us to look at what was transferred and what was retained. Or what was transferred to his court requires us to decide whether G, who has the plaintiff in this case, has standing the frame of infringement action against the defendant. An infringement action based on a patent, the 647 patent, in the statute said, who does the statute say can bring infringement actions? Patent T. Patent T. Is G a patent T? G is not a patent T. G is a virtual patent T. That's a well-established principle under the president of this court. If all substantial rights are transferred, you are in effect at the all-in-assity of a virtual patent. Well, fair enough, Your Honor, but I would suggest that the law, it's Section 281 in which this construct has been discussed by the Court's runner. We have four categories. We have pure assignments in which cases know this view. The right title on interest in the patent is assigned over such as an adventure to a sign that is written under an employment agreement. Then we have the virtual assignee, which is, we're all substantial rights transferred to this person or entity. Then we have exclusive licensee, and then we have bear licensee. In this case, you're under it. I think the facts are pretty compelling that we have a virtual assignee situation here. A owns legal settlement. To a case that deals with something called a virtual assignee, that is what I call it. A virtual assignee, which holds that a virtual assignee, even to the close to confused. That a virtual assignee is a proper plaintiff. Do we have a case that says that? I believe you're on a, there is a case out there. I can't say which one I think it might be a vote-pell, where that phrase would actually use. Other phrases are a tantamount to assignee, or other phrases are effective assignee for purposes of this analysis. This is, and if there are all substantial rights in that entity, if all substantial rights incidents ownership were transferred, that party has standing. And what are the virtual rights incidents ownership that have happened? There are two very categories. One is the statutory grant, which is the right to preclude others for making use of your selling. G have that. G has that. And the other one is the natural rights, which of course goes back to 150, 300 years of precedent, where we talk about the right to make use of selling your invention. One's invention. Those rights don't belong to anybody in this case, because of the very peculiar circumstances that are confronting this court. No, it's your view that we, I mean this is not really patent law, I mean that we should apply a different principle to standing here because of the different rights affected by this, the transcease shifts and the whole bankruptcy proceeding. You're on a, I don't think we need to apply, I think the standard still applies. It's the well-established standard that this court has addressed it probably a dozen times. But at this level of the trial court said, drop what I said, I can't get there under patent law, but I can get there under bankruptcy law. This fact, yeah, the trial court did say that, and I think that there's some truth in that I think the appropriate way to characterize that is these are unusual circumstances. This court has never confronted, we've looked at all the cases and Microsoft has looked at all the cases. This court has never confronted anything similar to this situation where you have three liquidating trusts, none of whom have the right by law to practice the invention. So that, in my view, you're on it is reasonable to take that factor out of consideration because that right was not retained by anybody. But it doesn't, A, have the right to license people? A, has the right to license a book, but it can't. No, it cannot, because it can't practice, it is by law prohibiting under the trust. It's a liquidating trust, which is a defined, not only the trust agreement itself says, you cannot engage in business activity. Each of those three trusts have that. But if the license is just someone who will then make a good bet. It could accept or not, it can't engage, it can't engage in business activity. So what purpose would it have for licensing that it is against the law for it to do that? I think we just said it can license a nice. It has the right before it is the right to license. It cannot exercise that right without breaching its prohibitions, its settlement agreement, requiring a rule that has a solution to that problem between A and the other parties to that settlement agreement. That's their problem, not ours. Your Honor, I don't think you can separate this view. I don't think that you can separate the rights incident and ownership. All substantial rights analysis from the fact that in this particular case, this peculiar case, we have circumstances where no one is allowed to do that. All these are A to new. You just like Bell felt to us, didn't Bell felt in that case? No, they were in fact a licensee as well. That is correct. We are not licensed to make use of ourselves. So you clearly don't have the same bundle of rights as Bell felt? No you are right, I suggest we have a right to be young but they haven't. You don't have rights to make use of yourself. You don't have to license. You don't have to set everybody, you only have to make use of yourself. That's correct, Your Honor. You can even have a much smaller bundle of rights. We have some very important rights. A, that holds the title to the 647 patent. Can't sell the patent without my client's question. My client is an absolute veto over whether or not A can do anything with that patent. But now that's nothing to do with your right to be opposed. That is just to contract the OB-QA and G a day. Your Honor, every transfer or assignment situation at some level deals with a contract. Usually it's in the context of a license agreement. Here's in the context of a bank which is selling a degree as you characterize it. So there's always a contract issue at play in this analysis. And if we get back to the principle of we're all substantial rights of ownership given to G. And by virtue of that we have to look at what was obtained, what was not given to G. A can't transfer this patent to anybody without my client saying that's okay. A can't do anything to appear in the value of this patent. A can't do anything except cooperate with reasonable cooperation to my client. In my client's efforts to enforce the patent. You do agree that A owns the patent. A owns the legal title to the patent. My client is the beneficiary of it. When A sells it, when the patent is determined to have any value or it is determined that it is right for sale. My client gets 45% of the proceeds. And the other trust, the bond of the trust gets 55%. It just seems to me that I'm sorry. It just seems to me that it's a case of the lot more or more like our growth and decision. And the growth at the end held a lot more of the rights than your client does here. And you still ultimately ruled they didn't have to bring suit. So in that case, it was even quoted as long been no of their rights to suit laws and a contract. On a company by the trans-broad firm, a other incident with ownership does not constitute a sign of patent rights. It entitles the transfer of a suit and it's not a name. And there's just a long, long, long, realistic cases which all support that proposition. So how do you distinguish yourself from the pro-pet position? You're honor and I'm into my rebuttal time, but obviously this is critical stuff. You're our pro-pet. I've heard the case number of times. They do not have the money, and they do. They did not have as many rights of ownership as we're transparent towards my client in this case. And pro-pet was unclear. This is specifically discussed in the court's opinion. It was unclear where the pro-pet had the right to make users sell under the agreement in that case. So in our situation, that's analogous to our situation. It's not directly parallel. But in the pro-pet case, very importantly, they say that when all else fails, we have to go back to the crown die stand. Because I think they recognize a pro-pet. They did have any of the rights of rights. I believe that's correct, Mark. In this case, in our case, there are eight technical ways of the right to license, but they can't do it. And in pro-pet, they had the right to veto assignments of the patent. Just like that right in the town, it's me a minute ago, as a very important one that you said your client had. Well, pro-pet had that too. And the right to license what you don't have, they had the right to bring all of them all to the students. And yet, we still don't know standing. Yes, sir. We have that they don't. We have, we have, we are beneficial owners of this trust. Pro-pet was not a beneficial owner of the patent. They have the right to 100% of the proceeds from all licensing and the issue. How is that not make them a beneficial owner in that regard? They are not. We are beneficial owners to proceed with a trust charter. A is holding this patent for me for my children. But if you're not a percent of the money, you're bringing from the law, so you only get 55%. No, you're not bringing me up. You're 45. You're a minority. You're already called. You're honored. I'm at a time of difficulty. I just do just to answer your question. We get 100% of the money of any recovery from the lawsuits that we bring. Mr. Pep, can I, I don't want to answer your question. Your question answered for you for Judge Moore's question. But it seems to me that in pro-pet, the court also referenced the fact that important factors were that they had to, pro-pet had to get consent to select its targets in suing. Do you have that requirement? We have absolute discretion as to who to investigate and who to sit. And pro-pet also, the court mentioned that they bring in requires to correct to use reasonable efforts to insist on business cooing, business practices, and its enforcement efforts and some licensing. Do you have a requirement that you have to use reasonable efforts? I don't believe we have that. Business practices. I don't believe we have that requirement here on our note. I think we did purely within our discretion. So who to investigate and who to sit. Well, why don't you, I will restore your report on my interest at Donald and listen to Mr. Shepnick. Thank you very much. Thank you. Good morning, Your Honours. I'm Craig Sherb, the official jurisdiction of my colleague Charles Sanders. Here on behalf of Microsoft, may please the court. I intend only to address the standard issues because... Well, in light of that, I appreciate that. Is A alone sufficient to bring suit to his target? Well, not the way they have the rights present. They invited them. In fact, that's one of our fundamental points. They made such a mess of things. There is no single target today who can enforce his target. Well, what about two? Okay, so the answer to A alone is no. What about A plus G? Well, if they try again and change in a substantial way, the rights of G has... No, no, no. You're talking about the correct answers. No, the answers no. So in other words, you're saying that this contractual, this division that occurred in the connection with bankruptcy is essentially meant that the patent is no avoid. That nobody can enforce the patent. As of today, the answer to that question is yes. Excuse me. Why did you answer the judge's questions? The question about A and G. Why did you say no? Well, because A and G today should get together and say, oh, good, let's go after Microsoft. Why wouldn't that work? Because two reasons. A has no right to suit. A has a sign does. But G does the chosen action. There's no question about that. Well, A has the title. There's no question about that. You put the title together with the owner of the chosen action. I, you're right to enforce the title. It seems to me you've got a hold. Well, you know that W is not an age. I think it's a good age. And I'll tell you why. I'll be wrong. Because this party didn't need a tighter point, but this court's precedent on the standing issue, is that you can only put an A and a G together if G has be certain amount of rights. It's not enough to say that. You can only, the only sort of non-owner that can join a patent owner in a lawsuit is an exclusive licensee. No, this is not a problem of the license. There's no licensee in this case. Right. So we're not in that body of law. We're in a different body of law. We're back to the basis. The basic rule is a patentee who owns all of the rights to the patent, including the right. To manufacture a patent, to exclude others and say, hand the suit for the court wall. That individual or that it can suit. But the end of here is a strange arrangement in which for whatever business reasons they had in mind, they split that up. A has peace of it. G has the other peace. Why can't they put those pieces back together and say, aha! Why wouldn't that work? They can't do it given the way that the rights are presently proportionate. There might be a way, in fact, we make this one in our papers, where if they go back and reapportion the rights, so that either one, that A has standing and G could join if it were an agent, if we're given the rights to direct the litigation, if we're given the rights to share it to recover the proceeds of the litigation, that would work. But you can't say, jeez, there's no standing. It doesn't matter that they have the right to sue, the detractual right to sue. So, if they're going for it, they said this since Crown High, this court has set it an unbroken line of cases. I'm giving you that purposes of the argument that I still have. I thought you might have answered. The reason A and G together can't work is because there was a private deal between A and Microsoft at some point, back in time, which is only reference, in passing the judges' opinion, in which A waived any suits against Microsoft. But interestingly, you never mentioned that and you agree. Why are you staying away from this? Well, something in there that we need to know. No, no, I mean, we have something in there you don't want us to know. No, we asked the district for a certain issue and actually placed and which issue. The release issue, that's the issue you're referring to, that A, the back of the minute, Microsoft was a large creditor of A in the magazine. Microsoft had claims against A as a result of a settle those claims A released Microsoft. We think that that was any cause of action against Microsoft in this panel. That was called. But nowhere in your agreement to us do you even mention that. Because it was not passed on by the district court and the district court felt that she didn't have to get there. Because she found that this actually gets the standing issue. The district court found that G is standing on its own. No part of G standing is derived from A or they're not, they're not suing on behalf of A. They're not suing in the name of A. The basis for the district court's decision was that G alone is enough. And council, this is, I like talking about this because it's an interesting issue. And certainly I haven't seen many of our cases where the result is nobody has to go to the suit. It's already case and you can point me to that I'm missing. In pro pad it was between two people. But there was, it didn't end up with no one had the right to suit. Right? It was a patent team retained the right to suit. It was when they choose a licensee or the patent to go to the suit. I've never seen a case where our ultimate decision on standing resulted in no one having the right to suit. I actually think the answer to that is there are such cases. I can say psych, judge process to learn with that case. Really almost all of the standing cases, that's the result. Because this court is passing on the arrangement that's before you today. Does this arrangement work? Does it confer standing? And in many, many cases this court has said no. It doesn't. Now the opinions don't go on and say and therefore as of today nobody can see on that patent. But that is absolutely the result of the court's stand. I couldn't find any other cases that raised this in the context that they fight with the whack up. Or whatever you want. They're the way they did this. Do you have any other cases? Which raises this question. Assuming, and it seems, well, let's assume to the moment that under patent law they have no standing. The trial judge said, oh, but they do under bankruptcy law because that's a different set of issues. Why should we go there? Because this is a patent case. Because the Supreme Court is a patent case in the bankruptcy context. Why shouldn't we? We have two rules now. One is the patent, and the two is the exclusive licensee who joins the patent. And the non-relief least consume. Why shouldn't there be a third category that says a holder of a chosen action with the agreement. And I assume I would agree with this. With the agreement of the holder of the title in the bankruptcy context. Can also assume. We should not have without. The answer to your question is because Congress didn't say so. All patents are statutes for it. The standing requirements are statutes for it. The Supreme Court again has said over and over. You look at Crown Dodd. It's all about the statute. I think this case is actually just like Crown Dodd, where an owner says there's a classic parties out there that I'd like you to go sue, go get it, and that's the other way around. I mean, I know what propact said about Crown Dodd. But if you've been Crown Dodd, I'd read it as saying in several portions. It seems to be only above whether or not the assignator of the personal director's suit can come in by himself. It seems to me the court doesn't suggest that he could bring someone else that's explicitly. But it seems to me the Supreme Court was not deciding whether or not he could bring him in. That would be satisfactory. The court continuously refers to the fact that he himself, in other words, in this case, Jeep himself would not go. But I think we've been talking here about not Jeep himself. Either A plus G or A low. And so why do you think that Crown necessarily just poses a bad issue? Well, because the plaintiff in Crown Dodd and I tried to argue that he could do in equity, he had the acquittal right. Why does that happen? Well, deciding whether he by himself could proceed. And the court said a few times, he alone cannot. We're already reading in Crown Toul that it decided the issue of whether or not if the other person is in the case. So this gets back to Jeep's players question. I think it follows from the reasoning of Crown Dodd because the opinion proceeds from the basis that rights are statutory. Haberites are statutory. Stand rights to stand in our statute. Well, let me ask you about that one. I'm sorry to keep that up here, but I want to make sure I have enough. In Waterman, which is one of the cases, I'm sure the Supreme Court cases have preceded all of this. There's a statement at page three, in which is inequity as a law when the transfer amounts to a license only. The title remains with the owner of the patent that's been denied his name and never the name of the license he alone. Unless that is necessary to prevent an absolute failure of justice as where the patent is, the infringer and the not so himself. Why could we, in this case, say, the end of your right, but the upshot of what you're saying, if we agree with you, as Judge Woodward pointed out, no one has the right to enforce the patent. Why could we apply the absolute failure of justice in this context? Because there is no absolute failure of justice. That statement in Waterman was getting at the situation where no one could enforce the patent ever. In this case, maybe somebody can enforce this patent if they go back and they do their homework and they fix it. There's no reason to believe that's going to happen because of these trusts. This is a divorce. And on this issue, I suppose you're a divorce court here. Councilor Woodward, you can decide this issue. Why did you interest me in the academic? I could have it nonetheless. A&G did not join to ring students in Microsoft. The district court did not rule whether A&G together had standing. Maybe while they would make for a more interesting case, it's not one of the courts, isn't it? It's not the one before you. But I do. A&G is in the case. Isn't that under our case law sufficient? I mean, they're there. They're there. They're there. They're there as part of the conflict. Why does not not mean that A&G is there and we can decide any standing in this group. If A&G has standing, we're done and they don't have to bring them back. Right? I mean, that case law supports that. Your case law does support that. But again, this is the argument based on evidence. The evidence based it. Right. And it's a different situation. Can you cure a standing problem by bringing the patent owner in later? Maybe. The patent owner is here and we brought him in by counterclam. Why does that not cure the case? If we assume that A&G is there is sufficient. Because G has no standing. You can't adhere up. But wait a minute. What? The first is saying if A&G has standing, they're both now before us. If the combination A keeps saying G has no standing, we know G at least we're getting the impression from you at least. That G has no standing. But the question that Judge first is trying to get you to this lesson. Is it not the case that by bringing A in your counterclam, you have now presented us with the issue of whether A&G to get at standing to bring this patent in front of the suit? Have we presented the issue? Yes. The answer to the issue is it still doesn't solve the problem. Because G under any view of the world alone with A does not have standing to participate. A&G has standing to bring this suit. A&G has standing. Does A&G have standing? Yes. It's constitutional standing because they hold the patent and they suffer an injury fact if Microsoft indeed isn't Frenching it. Yes. But they don't belong in court. That's the first part of the answer. They still wouldn't have why don't they belong in court? Because they gave away their right to suit. They have no right to suit today. They've given that away. Can they bring GG? They can A&G. Why can A&G? Because G doesn't have any proprietary rights in the patent. So you see that we should analogize it between... there's a patent being denounced everything. And then say there's some private attorney general type person who wants to bring a litigation to enforce that patent because the patent is a tacit bit. Because you want us to think of G as the person who owns nothing at all. And therefore, clearly have no standing to be involved in the lawsuit. That's kind of what we do with the patent. Right. And this is not... It sounds no nothing at all. Actually, they do own nothing at all. They don't have nothing. They have a chosen action as of the time that the actual case was brought up. I have a little problem with what they owned at the time that we joined the plan to play and it wasn't proved. Because at that point, there was no chosen action. There was only an empty deposit that would write the word. And I don't know how that could write in at that point, at least under the rule of time the law, but maybe things have changed by this century. I have it, but maybe the law has. But putting that whole issue aside, G does have something. And it's unliquidated legal title. That's what they own. And that is not what you're talking about standing, which is statutory and constitutional actually at some level. Holding an unliquidated legal claim is relevant. It is irrelevant. They cannot participate at all unless they own proprietary rights in the patent. That means legal title. Or enough of the legal title and the incidents of legal title that they are in effect the legal title. Is the assignment valid, Simon and Nicole of Crown Tool? I mean, did A have the right to assign the right to serve as a did and to G? Valid in the sense that A, today have that right to give away. Yes, A had that right to give away. It's not valid in a standing sense because it doesn't give that just that right away, which is all the G has. That doesn't mean for a standing issue. Why don't we restore some of your results on time if you need it and offer the church's Mr. Crackett. Thank you. Mr. Crackett, you need some more of your stuff. I love the Crackett dying case because it uses the phrase Chosen Action, which is so rarely here this day. Let me read to you a sentence to the seems to be a tea of this problem for at least your own perspective. It is said that the claim of an owner of a patent for damages from Fringeman is only a Chosen Action, which in modern days may be so assigned that the Ascony acquires full title and the right to sue it laws well as inequity without joining his assort or this view ignores the peculiar character of a patent property. And the recognized rules for the transfer of its ownership and its incidents. Patent property is the creature statute law and its incidents are equally so. And depend upon the construction to be given to the statutes creating a hand then in view of the policy of Congress in their enactment. The trial judge didn't believe that. The trial judge says no, in this case the rights of duty are defined by bankruptcy law. Assuming we believe Proudi, are you sort of stuck with the patent law problem and are you trying to tell us that UG has standing on its own under patent law? I just want to be sure I understand exactly where you're talking for sure. I'm going to address your question directly. The first one is that I don't think you can separate bankruptcy law and patent law in this case because they're going hand-to-hand down in this road. I think that's your best argument, sir, but I don't want to do a good start. Anyway, I understand that. But you want to think, and let me just address Chosen Action very briefly, Your Honor. I don't pretend to be an expert in property, but if Microsoft for purposes of discussion here today of Microsoft within fridging as of the time that that plan was enacted, I think that's a Chosen Action. I don't think it's any going right or really going on, that would be great. Putting that aside, to address your question more directly, Crown Die governs this case for purposes of whether they're standing on the patent context. We have to look at that and answer that question in the context of how this peculiar arrangement came to date, through the establishment of the formation of these liquidated trust that have very limited abilities to do anything. Crown Die says something, and this court has interpreted Crown Die a number of occasions in the context of the standing, most recently in Propept. What Crown Die says is, it's not about legal title, it's about proprietary rights in the patent. There is absolutely no question, Your Honor, that G has proprietary rights as patent. We already beneficiary of the trust that holds it. That is not insignificant, and beneficiaries have beneficial interests in the property, in the court, of the trust. We are beneficial owners of it, in no case that we could find deals with that issue, and it is not one that we can, I respectfully suggest, can just dismiss lightly. That is a proprietary interest in the patent. For Mr. Sheridan, Dr. Sir, we have no proprietary rights. I don't think that's true, Your Honor. I think that's actually incorrect. We absolutely have proprietary interest in this patent. We also have rights that go beyond the mere beneficial ownership. We have the right to control what happens with this patent. That is significant. It cannot be transferred without our blessing. That's very significant. Your Honor, your use of the phrase proprietary interest, that of course, comes out of the court, at least, is supported in private tax. That's where any patent particularly right here, among others, is the private taxes standing to sue for infringement, depends entirely on the future to complain to this proprietary interest in the patent. If you are making the argument that somewhere in the arrangement that you have is something holding proprietary. Well, I don't think it's as subtle as your suggestion, Your Honor. I think by virtue of being a beneficiary of this trust that holds the patent, we have proprietary rights. I think that's a matter of a established trust law. It's also a matter of the law of this. There's a decision from the CCP at a sports predecessor that doesn't deal with the issues that we're talking about today. But clearly, this issue of trust's owning patents and beneficiaries of trust's own patents, those are ownership interests. That is proprietary right. I don't think we can just ignore that. It's a significant fact. Thank you. Thank you, Mr. Chairman. Very great. Thank you, Your Honor. On this question of proprietary, the label is meetings. The question is, what rights does G hold? The proprietary means legal title. It means some portion of legal title. Judge, the player, I'm glad to talk about Crown Die. If you can look any number of places in Crown Die, where the court says, over and over again, the plaintiff must have legal title to the patent. Legal title to the patent because that's what the statute says. Mr. Rysam, the statute. What are you going to do? On this question of, are we contending for a world where no one can enforce this patent? The answer is no. There might be a world where somebody can enforce this patent. If they had done it right initially, we wouldn't have this argument. If maybe they can fix it in the future and if the release issue doesn't otherwise end the case and they can get past the merits, they've also lost them, by the way. And doing it right again is just briefly. Well, they have to rearrange the rights between these trusts or create another trust that holds sufficient rights in the patent that they have stated. The rules are clear. The court has said, in fact, you look at pro-pap. You look at the court's recent cases on standing and you keep saying, we've been over this and over and over it. And why can't you guys get it right? If they rearrange the rights correctly, you won't come back up here and argue that they didn't wrong again. Well, if they do it right, they'll make a deal with you. That's right. But then I'll be up here arguing that they should have lost them in the Americans. But again, this is not the first and only case to abolish the bankruptcy. This is not the first and only case to abolish trust that holds a patent. There's lots of them up there. And they do it right and the standing issue doesn't come on. These guys couldn't get it right because it's a divorce and they couldn't get it along. I don't know why. But don't not get your words or let's not make new law to deal with the situation they create. Thank you very much