[00:00:00] Speaker 03:
The next case is applications in internet time versus sales force, 2025-2026.

[00:00:08] Speaker 03:
Mr. Defencenzo, good morning.

[00:00:14] Speaker 02:
Good morning, Your Honor.

[00:00:17] Speaker 02:
The first issue before this court is whether a 2006 agreement unambiguously represents a present assignment

[00:00:26] Speaker 02:
of all rights, title, and interest to the patents as suit by virtue of its sale of a 2002 agreement.

[00:00:35] Speaker 02:
I'm going to start with the 2002 agreement that's sold.

[00:00:40] Speaker 02:
The 2002 agreement

[00:00:44] Speaker 02:
with respect to ASI's assets, represents a promise to transfer those assets to a third party.

[00:00:51] Speaker 03:
Well, it says, is hereby sold.

[00:00:55] Speaker 03:
That's a statement of present action.

[00:00:59] Speaker 02:
Yes.

[00:01:00] Speaker 02:
And what is sold is the agreement.

[00:01:02] Speaker 03:
Yes.

[00:01:03] Speaker 03:
Well, that's not very good language.

[00:01:05] Speaker 03:
But isn't it clear when one looks at 2002 agreement that we're talking about the intellectual property, the patents?

[00:01:14] Speaker 02:
Yes, but the rights to those patents were not sold under the 2002 agreements to any of the parties.

[00:01:21] Speaker 02:
Therefore, by selling the agreement, Ms.

[00:01:24] Speaker 02:
Nelson had the right to enforce the agreement.

[00:01:27] Speaker 02:
Ms.

[00:01:27] Speaker 02:
Nelson herself did not receive by virtue of the first clause either present or future rights to ASI's assets.

[00:01:38] Speaker 02:
She received the right to enforce

[00:01:42] Speaker 02:
ASI's agreement to transfer it to HMB.

[00:01:48] Speaker 02:
Now, the disconnect is the parties receiving rights to ASI's assets were not parties to the 2002 agreement.

[00:01:58] Speaker 02:
They were third parties.

[00:02:00] Speaker 02:
So therefore, when those parties sold their interest in the agreement to Miss Nelson, they didn't presently sell

[00:02:09] Speaker 02:
rights to receive ASI's assets either.

[00:02:14] Speaker 04:
I want to understand what you're saying, but I'm having a hard time understanding it.

[00:02:18] Speaker 04:
My understanding of this 2006 agreement is that something was sold to Miss Nelson, and that something is the 2002 agreement.

[00:02:30] Speaker 04:
And to me, the most straightforward understanding of that is the contents of the 2002 agreement, and that includes the asserted patents here.

[00:02:41] Speaker 04:
All right, now you have a different view of things, and understanding now how I sort of simply straightforwardly think about this, can you explain why that's not correct?

[00:02:55] Speaker 02:
Yes, Your Honor, because the sale of the agreement sold the party's rights under the agreement.

[00:03:03] Speaker 02:
ASI didn't receive its rights to the patents via the 2002 agreement.

[00:03:07] Speaker 02:
They already had them.

[00:03:09] Speaker 02:
They made one promise to transfer them to a third party.

[00:03:13] Speaker 02:
That promise was not made to the parties under the agreement.

[00:03:18] Speaker 02:
And in the context of this transaction, Miss Nelson wanted control.

[00:03:23] Speaker 02:
It wasn't about ownership.

[00:03:25] Speaker 02:
So when they sell the agreement to her under the first clause, and the district court didn't rely on the first clause.

[00:03:32] Speaker 02:
When they sell the agreement to her, what can she do?

[00:03:35] Speaker 02:
She has all the party's rights.

[00:03:37] Speaker 02:
That's the right to enforce it against ASI and say, ASI, I want you to transfer it to HMB.

[00:03:44] Speaker 02:
If you don't, I can sue you.

[00:03:46] Speaker 02:
But that's the first clause.

[00:03:49] Speaker 02:
She has the right to enforce the agreement.

[00:03:52] Speaker 02:
It's not the property right.

[00:03:53] Speaker 02:
It's not the right to pass damages aren't mentioned, the right to licenses aren't mentioned.

[00:03:58] Speaker 02:
It's not a patent assignment on its face, the 2002 agreement.

[00:04:03] Speaker 02:
So if the 2002 agreement's not a patent assignment, doesn't grant rights to the patents to any of the parties, how does the sale of that agreement transfer all property rights to all assets mentioned in the agreement?

[00:04:18] Speaker 03:
But the following sentence in the 2006 agreement says, the waiver of reservation shall be revocable.

[00:04:28] Speaker 03:
Altite right title and interest liability set forth in the O2 agreement shall transfer and hold to Nelson.

[00:04:38] Speaker 03:
And that sounds like the patents.

[00:04:42] Speaker 02:
Yes.

[00:04:43] Speaker 02:
But in the context of the 2002 agreement,

[00:04:46] Speaker 02:
It uses will transfer to the third parties.

[00:04:50] Speaker 02:
So now we get to the 2006 agreement, and they're saying, you have the right to enforce.

[00:04:56] Speaker 02:
But now instead of these patents having to go from ASI to a third party, now they have to go to you subject to your right to terminate, modify, or discard.

[00:05:10] Speaker 02:
So those two clause two and three should be read together and can reasonably be read that way at a minimum.

[00:05:18] Speaker 00:
I want to know how you're reading the second sentence about all right title interest in liability shall transfer to Nelson.

[00:05:26] Speaker 02:
I'm reading that as, in the context of the first clause,

[00:05:32] Speaker 02:
she has the right to enforce the third party sale.

[00:05:35] Speaker 02:
So now in the context of the second clause, instead of having the right to force the third party sale, she has the right to acquire the assets from ASI.

[00:05:47] Speaker 02:
Because set forth can't mean she currently owns all the assets and all the information mentioned in the agreement.

[00:05:58] Speaker 02:
There's things like 401k, insurance, things like that, were obviously not intended to be assigned to her.

[00:06:07] Speaker 02:
And really, if you look at the third paragraph, not clause, of the 2006 agreement, it specifically refers to contemplated future transactions.

[00:06:19] Speaker 03:
That does say shall transfer.

[00:06:21] Speaker 03:
But in the context of the previous statement, which is a statement of present sale, then it

[00:06:30] Speaker 03:
isn't necessarily a future statement.

[00:06:34] Speaker 03:
Obviously, these agreements are not well-drafted.

[00:06:36] Speaker 03:
But our job is to determine, reviewing the district court, what the intentions of the parties were.

[00:06:44] Speaker 02:
And I agree with you.

[00:06:45] Speaker 02:
If you find the agreements not well-drafted, well, then the district court erred under US Cellular.

[00:06:51] Speaker 02:
And then the parties agree on the standard.

[00:06:55] Speaker 02:
If it can be reasonably read,

[00:06:57] Speaker 02:
in the manner consistent with the acts and conduct of the parties before a dispute arises, then it should be construed that way.

[00:07:09] Speaker 02:
And it can at least reasonably be read that way.

[00:07:12] Speaker 02:
And the key thing is that 2002 agreement, no one received present or future rights to ASI's assets.

[00:07:20] Speaker 02:
So therefore, the first clause should be dead on arrival.

[00:07:24] Speaker 02:
Because she could not have received rights that weren't granted.

[00:07:29] Speaker 02:
And since ASI did not grant any rights to any of the parties in the 2002 agreement under the first clause, she did not receive any rights with respect to ASI's assets.

[00:07:43] Speaker 02:
I'm sorry.

[00:07:44] Speaker 03:
The clearest quote, maybe not clear, the best indication of intent is that Nelson should get the rights.

[00:07:55] Speaker 03:
which means that AIT doesn't.

[00:08:00] Speaker 02:
When you say ASI should get the rights, subject to her right to discard or terminate that clause, she shall have the right to discard that clause.

[00:08:11] Speaker 02:
And that's why the intent and conduct matters.

[00:08:15] Speaker 02:
It was just like in 2002 where you enter a future transfer using will transfer.

[00:08:21] Speaker 02:
And we all agree after 2002, all right title and interests remained with ASI subject to the will transfer clause.

[00:08:31] Speaker 02:
That could be enforced against it.

[00:08:33] Speaker 02:
And it's the same thing with paragraph one.

[00:08:36] Speaker 02:
Paragraph two changes or can be reasonably read.

[00:08:41] Speaker 04:
Didn't Sturgeon at some point say that Nelson got all the rights here?

[00:08:46] Speaker 02:
He mentioned a deposition he did.

[00:08:47] Speaker 02:
He said it sold everything.

[00:08:51] Speaker 02:
But he also said at deposition, earlier in the deposition, that ASI retained ownership.

[00:08:58] Speaker 02:
And when he talked about ASI retaining ownership, he said ASI retained ownership in 2012.

[00:09:07] Speaker 02:
Now, she had rights, but they were future rights.

[00:09:10] Speaker 02:
She didn't have patent rights.

[00:09:12] Speaker 04:
I guess I don't understand what Sturgeon meant when he said, yeah, sold everything to Miss Nelson.

[00:09:19] Speaker 02:
He meant control, because that's what this was about.

[00:09:23] Speaker 02:
And under Salesforce's construction, the third clause means nothing.

[00:09:30] Speaker 02:
If she discards it, she still owns it.

[00:09:33] Speaker 02:
If she terminates the very Section A of the agreement, Section A of the 2002 agreement is the only section that defines ASE's assets and the future transfer, and she retains the right to terminate that clause, that can reasonably be read reasonably consistent with the party's conduct to reflect control.

[00:09:58] Speaker 02:
Now, on appeal, Salesforce argues no.

[00:10:01] Speaker 02:
Her control is a reflection of ownership.

[00:10:05] Speaker 02:
And what they're doing is reading out the clause entirely.

[00:10:08] Speaker 02:
Now, the district court in ruling against AIT found language cannot be read out of the contract.

[00:10:18] Speaker 02:
And if you're reading in a redundancy, that's wrong as a matter of law.

[00:10:22] Speaker 02:
And now they're saying it's clear and unambiguous

[00:10:25] Speaker 02:
clear and unambiguous that the third sentence means nothing, that if she cancels, discards, or terminates the very clause in the 2002 agreements defining ASI's assets, she still owns that asset, those assets.

[00:10:41] Speaker 02:
And I don't think that's a fair reading.

[00:10:44] Speaker 02:
But I don't have to prove it's not a fair reading.

[00:10:47] Speaker 02:
They have to show this court must interpret it.

[00:10:51] Speaker 02:
And the reason they do is because the conduct and acts of the party is undisputed here.

[00:10:59] Speaker 02:
And lastly, very quickly on the equitable relief

[00:11:04] Speaker 02:
The court made two legal errors in denying relief.

[00:11:07] Speaker 02:
The court said AIT had to move at the time they first filed their motion.

[00:11:14] Speaker 02:
Jones is directly and unambiguously inconsistent with that.

[00:11:17] Speaker 02:
It's Ninth Circuit law, and it's directly on point.

[00:11:20] Speaker 02:
They cited two Second Circuit cases, but that's not what the judge was required to follow.

[00:11:26] Speaker 02:
Second.

[00:11:27] Speaker 02:
On the constitutional issue, we're squarely within the Four Corners of Schwendamen.

[00:11:33] Speaker 02:
And the reason we're in the Four Corners of Schwendamen is because we have both the promise from the actual owner that it was intended to be owned by the plaintiff

[00:11:46] Speaker 02:
And we had the plaintiff believing in good faith it's the owner and alleging it's such.

[00:11:52] Speaker 02:
So when you have the person who's the true owner and the person who's the plaintiff both believing prior to litigation,

[00:12:00] Speaker 02:
in good faith that the plaintiff had all right title and interest, and here the error was one of execution of an agreement.

[00:12:10] Speaker 02:
Mr. Sturgeon was tasked with getting the patents from ASI to AIT, and the court found that he executed on behalf of the wrong party.

[00:12:21] Speaker 02:
But there's no dispute he had the authority to enter that agreement.

[00:12:24] Speaker 02:
And that authority should have been presumed under Cerf Tech, because these assignments were filed with the Patent Office.

[00:12:33] Speaker 02:
I'll reserve the rest of my time.

[00:12:42] Speaker 03:
Mr. Schaffer.

[00:12:46] Speaker 01:
Good morning, Your Honors.

[00:12:46] Speaker 01:
May it please the Court.

[00:12:48] Speaker 01:
We submit that affirming in this case should be straightforward.

[00:12:51] Speaker 01:
So long as the contractual assignment means what it says, AIT was never a proper plaintiff from the day the lawsuit was first filed back in November 2013.

[00:13:00] Speaker 01:
Nor can a foundational standing defect be cured a decade later.

[00:13:05] Speaker 01:
But even if it might be cured, Your Honors, in inappropriate circumstances, it suffices to note that denial of such extraordinary relief on reconsideration

[00:13:15] Speaker 01:
post-dismissal for lack of jurisdiction was well within the district court's discretion.

[00:13:20] Speaker 01:
Let me start with the contractual assignment, Your Honors, which I read the way I think Your Honors were indicating.

[00:13:26] Speaker 01:
And we just think that the appellant's interpretation is untamable.

[00:13:29] Speaker 03:
We haven't indicated yet how we read them.

[00:13:31] Speaker 03:
We're just asking questions.

[00:13:32] Speaker 01:
Fair enough, Your Honor.

[00:13:33] Speaker 01:
I don't mean to presume anything, Judge Laurie.

[00:13:34] Speaker 01:
Let me say that I, reading the agreement, don't see how the other side can simultaneously give meaning to the 2006 agreement, yet deny that there was a present assignment of the patent.

[00:13:48] Speaker 03:
Let me ask you, 2006, the agreement is sold.

[00:13:53] Speaker 03:
It doesn't say the patents are sold.

[00:13:55] Speaker 01:
It says, hereby sold, Your Honor, in the context of trying to dispose with clarity of everything that was subject to the 2002 agreement.

[00:14:04] Speaker 01:
And there's no dispute that the patents in suit are specifically referenced as part of the 2002 agreement as among the assets.

[00:14:11] Speaker 01:
But then, Your Honors, it doesn't end with the first sentence.

[00:14:14] Speaker 01:
There is, of course, the second sentence, too.

[00:14:16] Speaker 01:
And let's just read it together.

[00:14:18] Speaker 01:
The beginning of it, Your Honors,

[00:14:19] Speaker 01:
is that the waiver of reservation of any provision shall be irrevocable, complete, and total.

[00:14:26] Speaker 01:
Then there's a semicolon, Your Honors.

[00:14:28] Speaker 01:
That surely is a present specification of shall.

[00:14:32] Speaker 01:
That is a present command.

[00:14:34] Speaker 01:
I do not think it would be available to a party to this to say, well, that's a future contingent shall, and we still retain a waiver of reservation of any provision.

[00:14:45] Speaker 01:
It's speaking with total clarity that pursuant to the hereby sold, you have no waiver or reservation.

[00:14:51] Speaker 01:
That is gone.

[00:14:51] Speaker 03:
So what about the last sentence?

[00:14:53] Speaker 03:
Shall have the sole and exclusive right to modify, terminate?

[00:14:57] Speaker 03:
Those sound like not ownership of patents that one's just claiming or assigning, but talks about provisions of an agreement rather than ownership of the assets.

[00:15:11] Speaker 01:
Well, Judge Laurie, even assuming that that is true, we're not ruling out that it was open to Ms.

[00:15:19] Speaker 01:
Nelson, as the receiver of the transfer, to take what was specified in A, B, and C, and as she could dispose of it, as she could claim it, she could also send it back.

[00:15:31] Speaker 01:
She could have a waiver or modification.

[00:15:33] Speaker 01:
Paragraph 3 of the agreement specifies how you could have any such amendment or waiver.

[00:15:39] Speaker 01:
It must be in writing.

[00:15:40] Speaker 01:
So for the avoidance of any doubt, paragraph one is saying, it is available to Ms.

[00:15:46] Speaker 01:
Nelson as to what is the subject of sections A, B, and C to have such a waiver or amendment.

[00:15:53] Speaker 04:
What's the subject of sections A, B, and C?

[00:15:55] Speaker 01:
Your honor, it's a number of different things, including, I believe, the patents in suit that were the subject of the 2002 agreement.

[00:16:05] Speaker 01:
But I think it suffices to note, Judge Chen, there was never the waiver or modification by Ms.

[00:16:09] Speaker 01:
Nelson, which would have needed to be in writing.

[00:16:12] Speaker 04:
All I submit to your honors is... It's just a follow-up on Judge Laurie's point.

[00:16:16] Speaker 04:
If, in fact, the first two sentences were a clear assignment

[00:16:21] Speaker 04:
of title to these patents, then this third sentence looks a little peculiar why it's even there.

[00:16:28] Speaker 04:
Of course, she has the right to do whatever she wants with that now received right to the patents.

[00:16:36] Speaker 04:
But this third sentence is clearly contemplating something beyond that.

[00:16:41] Speaker 01:
Well, Judge Chen, there are other things that also flow here.

[00:16:44] Speaker 01:
It's not just the assets.

[00:16:46] Speaker 01:
And I could get through A, B, and C, and what is the subject of them.

[00:16:50] Speaker 01:
But I don't think that it is denying meaning to this third sentence to say for the avoidance of any doubt.

[00:16:56] Speaker 01:
It specifies that Ms.

[00:16:57] Speaker 01:
Nelson can do what any owner can do.

[00:17:00] Speaker 01:
She can, if she wants, assign the patents back.

[00:17:04] Speaker 01:
And it's important to note that the subject of the preceding second sentence, we talked about the first part before the semicolon.

[00:17:11] Speaker 00:
That is part of the problem, right?

[00:17:13] Speaker 00:
That third sentence, I understand you to be saying it's allow her to do what anyone who has the patents is allowed to do.

[00:17:22] Speaker 00:
So the question is, why then is it necessary?

[00:17:30] Speaker 00:
In that sense, it might support a different reading of the first two sentences.

[00:17:36] Speaker 01:
When we look at contracts, I do see sentences like that all the time, Judge Dole.

[00:17:40] Speaker 01:
And the reason why I think you would have as a careful draft for that sentence is maybe you have a side agreement.

[00:17:45] Speaker 01:
Maybe it is agreed.

[00:17:47] Speaker 01:
And in parallel with this agreement, that the patents in suit, instead of going where they are going under this all-encompassing language, maybe they would remain with the transferor.

[00:17:57] Speaker 01:
And that was something that Ms.

[00:17:58] Speaker 01:
Nelson could agree to, and she could have a written agreement that so memorializes.

[00:18:02] Speaker 01:
And for the avoidance of any doubt, it's totally compatible with this agreement.

[00:18:06] Speaker 01:
And I think it avoids any confusion.

[00:18:08] Speaker 01:
It avoids any notion that she's getting necessarily and for all time the patent rights.

[00:18:13] Speaker 01:
I don't think that it should transform the clarity that you find in the preceding sentences.

[00:18:19] Speaker 01:
And just one more time, Your Honors, there is that shall in the waiver of reservation of any provision.

[00:18:24] Speaker 01:
That's not a future contingent shall.

[00:18:27] Speaker 01:
And then the second shall, after the semicolon, picks up.

[00:18:30] Speaker 01:
All right, title, interest, and liability

[00:18:35] Speaker 01:
set forth in the April 24, 2002 agreement shall transfer in whole to Ms.

[00:18:39] Speaker 01:
Nelson.

[00:18:40] Speaker 01:
To say that that's future and contingent would say that Ms.

[00:18:43] Speaker 01:
Nelson wouldn't have to take the liability.

[00:18:45] Speaker 01:
She could just as easily say, I'll leave the liability untransferred

[00:18:51] Speaker 01:
things like the 401k, that clarity would be totally defeated and I would submit negated, Your Honor.

[00:18:58] Speaker 01:
If there's a future contingent transfer, at what point in the future and contingent upon what?

[00:19:04] Speaker 01:
This is not the normal sort of inventor assignment provision that this Court has encountered.

[00:19:10] Speaker 01:
the future contingency is there's a subsequent invention by the inventor.

[00:19:15] Speaker 01:
That's an intervening circumstance.

[00:19:17] Speaker 01:
And then at that point, there will be an assignment.

[00:19:19] Speaker 01:
This agreement was giving clarity that at this point in time, everything that was a subject of the 2002 agreement shall transfer.

[00:19:30] Speaker 01:
It's pursuant to hereby sold.

[00:19:32] Speaker 01:
It is irrevocable as of the moment of the sale.

[00:19:35] Speaker 01:
And my submission to your honor is that the patents ensue.

[00:19:39] Speaker 01:
flow with the whole transfer, and that there's no future contingency that would make sense in this context.

[00:19:44] Speaker 03:
You simply react every time you use the word clarity.

[00:19:48] Speaker 01:
Well, Your Honor, I think that if the agreement doesn't mean what we think it means, I do think it renders the agreement a nullity.

[00:19:56] Speaker 01:
Because there's no indication as to at what future point in time

[00:20:01] Speaker 01:
or what agent would actually make sure that the hereby sold and the shall transfer and the shall be irrevocable, how does that ever activate?

[00:20:13] Speaker 01:
And so our submission is it happened by its terms upon the sale of the 2002 agreement pursuant to the 2006 agreement.

[00:20:21] Speaker 01:
Yes, Ms.

[00:20:22] Speaker 01:
Nelson could have changed the result as to the patents in suit, but she never did that pursuant to a writing.

[00:20:29] Speaker 01:
And so I think it's clear enough, Your Honors, and I think the district court was right

[00:20:33] Speaker 01:
to read these provisions as unambiguous, reading the contract as a whole, reading it together.

[00:20:37] Speaker 01:
And I really don't know what my friend's answer is as to what was the practical meaning of the 2006 agreement if it was all future and contingent.

[00:20:49] Speaker 01:
What was sold, just the pages, the pieces of paper,

[00:20:52] Speaker 01:
the 2002 agreement I don't think you can read this paragraph one whether it could have been You know worded somewhat clear or not I don't think you can read it as saying just the paper of the 2002 agreement those pages were being sold when this agreement was executed

[00:21:10] Speaker 01:
And so if we're right, Your Honors, about the contractual assignment, if the district court is right about the contractual assignment, if Mr. Sturgeon was right when he said at deposition what I would say, that everything had transferred, you can find that in appendix

[00:21:25] Speaker 01:
3233, 3234, that really does decide the case, Your Honors.

[00:21:30] Speaker 01:
Because then it follows that AIT was never a proper plaintiff from the inception of the lawsuit.

[00:21:36] Speaker 01:
It never had any persisting claim to the patents.

[00:21:38] Speaker 01:
And that is an Article III jurisdictional defect, just as the district court found it.

[00:21:43] Speaker 00:
Pass between when the case was filed and when this was raised.

[00:21:47] Speaker 00:
I'm sorry.

[00:21:48] Speaker 01:
I'm curious.

[00:21:49] Speaker 00:
What was the time period between when the case was filed and when this defense was raised?

[00:21:53] Speaker 01:
The case was filed, I believe, in 2013, November 2013.

[00:21:57] Speaker 01:
There was initial discovery that was provided by AIT as to any attempted transfers of the patents in suit.

[00:22:07] Speaker 01:
And that discovery was provided, I think, sometime in 2014.

[00:22:13] Speaker 01:
And it omitted the key agreements that we're focusing on.

[00:22:17] Speaker 01:
The 2002 agreement, the 2006 agreement were not produced as part of that discovery.

[00:22:22] Speaker 01:
You can find it in Appendix 207, 210, 5226, and 27.

[00:22:28] Speaker 01:
And so we didn't know about these agreements until third party discovery ensued.

[00:22:33] Speaker 01:
And a third party,

[00:22:35] Speaker 01:
then produced the agreements in question, particularly the 2006 agreement.

[00:22:40] Speaker 01:
And then following that, I believe it was in October 2022,

[00:22:47] Speaker 01:
a few months following that production after we'd gone through the materials that we moved to dismiss.

[00:22:53] Speaker 01:
That's in Appendix 116.

[00:22:55] Speaker 01:
But it's not, Judge Stoll, until after all the motion to dismiss briefing, after the motion to dismiss hearing, where the district court was making clear that she read this agreement the way that she read it as a present transfer of the Pattinson suit.

[00:23:11] Speaker 01:
And you can see, if you want to take a look, Appendix 143, she says that,

[00:23:17] Speaker 01:
Right then, in March 4th, there's no indication by AAIT that they're seeking any alternative relief under Rule 17, based on reformation of the agreement, anything.

[00:23:27] Speaker 01:
And so it's after there is the dismissal order, a dismissal for lack of jurisdiction, that AIT first comes back seeking reconsideration and saying there should be relief under Rule 17 and there should be reformation of the agreement.

[00:23:41] Speaker 01:
Your Honor, that's after the district court had found it lacked subject matter jurisdiction to do anything.

[00:23:47] Speaker 01:
So I don't think it would have been available to the district court in that posture to grant that relief, but certainly it wasn't an abuse of discretion to say why wasn't there some indication that you might seek these alternative forms of relief.

[00:24:01] Speaker 01:
I will speak briefly, Your Honors, to the Rule 17 relief.

[00:24:05] Speaker 01:
The terms of Rule 17 say it needs to be, such a request needs to come within a reasonable time after an objection.

[00:24:13] Speaker 01:
The Jones case from the Ninth Circuit that my friends rely upon was one where you had the proper plaintiff that was named.

[00:24:20] Speaker 01:
It just was kind of a legal technicality that the father who was properly the plaintiff had not been named in his official capacity as administrator.

[00:24:29] Speaker 01:
So it was just a question of, and there was also a stipulation

[00:24:33] Speaker 01:
that the amended complaint would properly name the father as it did.

[00:24:36] Speaker 01:
So there was surprise when the district court said that there was this technical defect.

[00:24:41] Speaker 01:
It was an issue of anything of prudential standing.

[00:24:43] Speaker 01:
It wasn't a fundamental Article III disconnect where the putative plaintiff had not suffered any injury in fact.

[00:24:50] Speaker 01:
So it's quite different.

[00:24:51] Speaker 01:
And I also don't know that Ninth Circuit law governs this, given that we're talking about questions of patent law and patent assignment.

[00:24:57] Speaker 01:
And certainly, there wasn't an indication from the Ninth Circuit that every time you have a dismissal for lack of standing, because the punitive plaintiff has not been injured, every time you can say, well, maybe somebody else,

[00:25:08] Speaker 01:
is the plaintiff who's been injured, that means a district court has to go through a Rule 17 analysis before it dismisses without prejudice.

[00:25:14] Speaker 01:
And I would emphasize that too, Your Honors.

[00:25:16] Speaker 01:
This is a dismissal without prejudice.

[00:25:18] Speaker 01:
It's not a dismissal on the merits.

[00:25:20] Speaker 01:
It's just a dismissal for lack of subject matter jurisdiction.

[00:25:22] Speaker 04:
The action's been refiled, is that right?

[00:25:25] Speaker 01:
That's correct, Judge Shen.

[00:25:25] Speaker 01:
I don't know that it's been served, but it has been refiled.

[00:25:31] Speaker 03:
In whose name?

[00:25:33] Speaker 01:
I defer to my friends to the other side.

[00:25:35] Speaker 01:
I think Ms.

[00:25:35] Speaker 01:
Nelson may be part of it or has joined as a plaintiff or else she is purported to make the assignment that would enable AIT to be proceeding as a plaintiff.

[00:25:44] Speaker 01:
But I defer to my friends for that.

[00:25:47] Speaker 01:
Then there's the question of contractual reformation.

[00:25:49] Speaker 01:
Your Honor, I don't think that that contractual reformation under state law could ever be granted by a federal Article III court that lacks jurisdiction to do anything.

[00:25:58] Speaker 01:
And certainly, if the district court were ever going to be asked to do that, it should be happening before the district court is dismissed for lack of jurisdiction.

[00:26:06] Speaker 01:
I don't think that the district court that said, I lack jurisdiction to do anything here, can rewind and say, I'm exercising my powers to change an instrument under state law.

[00:26:16] Speaker 01:
And last, Your Honors, I submit what I did to Judge Laurie.

[00:26:19] Speaker 01:
I think that there is clarity in this agreement.

[00:26:21] Speaker 01:
that would be undone through the reformation.

[00:26:23] Speaker 01:
I don't think that's a proper use of contractual reformation.

[00:26:26] Speaker 01:
I think it would be more in the nature of rescinding the agreement to say it does not mean what it says and effectively all of its provisions, the shell transfer, are negated.

[00:26:35] Speaker 03:
Why are we struggling with this if another suit is pending that resolves the question?

[00:26:43] Speaker 01:
Well, you have to ask the plaintiff that.

[00:26:45] Speaker 01:
I think that they want to have it treated as a lawsuit that has been on file since November 2013, would be my speculation.

[00:26:53] Speaker 01:
But I would submit that if they wanted it treated that way, they needed to have the right plaintiff.

[00:26:57] Speaker 01:
And to have done all this diligence at that point in time, or at least somewhere along the way, to have realized there was this issue, and have a joint or do something while a district court was considering the jurisdictional question.

[00:27:09] Speaker 03:
We're going to get an answer in 37 seconds.

[00:27:12] Speaker 01:
OK, Your Honors.

[00:27:13] Speaker 01:
I may allow them to answer sooner than that unless Your Honors have further questions for me.

[00:27:16] Speaker 03:
All right.

[00:27:17] Speaker 03:
Thank you, counsel.

[00:27:18] Speaker 01:
Thank you, Your Honors.

[00:27:20] Speaker 03:
Mr. DeFranciso.

[00:27:27] Speaker 02:
Your Honor, I'd first like to start by saying we did tell the court in our opposition to their motion.

[00:27:32] Speaker 04:
Did you refile an action?

[00:27:35] Speaker 02:
We refiled an action, yes, Your Honor.

[00:27:37] Speaker 04:
OK.

[00:27:39] Speaker 02:
But we haven't served it, because to the extent this court finds that ASI, AIT, properly has jurisdiction, or that equitable relief requested should be granted, then we don't believe there will be jurisdiction, because it's only contingent.

[00:27:58] Speaker 03:
What good can we do here if the case is brought where this issue won't come up?

[00:28:06] Speaker 02:
What could you do here, Your Honor?

[00:28:08] Speaker 02:
I don't understand the question.

[00:28:11] Speaker 00:
The question that Judge Lurie asked your opposing counsel there was that why is this case being filed if you already have another lawsuit that you've brought?

[00:28:25] Speaker 02:
We felt we had an obligation to preserve potential damages.

[00:28:29] Speaker 02:
And that's the reason.

[00:28:31] Speaker 02:
But I think if we look, two things.

[00:28:34] Speaker 02:
One, they said we didn't raise the issue of potential curing our opposition.

[00:28:38] Speaker 02:
We sure did.

[00:28:39] Speaker 02:
If you look at our opposition at 85196, we told the court that this is an issue of statutory standing, and to the extent it is, we can cure it.

[00:28:49] Speaker 02:
So we told the court in opposition, but we just didn't move at the time because the rights wasn't AITs to move.

[00:28:57] Speaker 02:
It was Ms.

[00:28:58] Speaker 02:
Nelson's.

[00:28:59] Speaker 02:
Miss Nelson was ill at the time and was 84 years old, and she would have to verify and agree to be bound by a litigation where she didn't believe she had any rights to it.

[00:29:09] Speaker 02:
And while they attempted to distinguish Jones, Jones is about the notice.

[00:29:14] Speaker 02:
Jones says the notice under Rule 17 in the Ninth Circuit, and that's a procedural matter on timing.

[00:29:20] Speaker 02:
Jones says notice is when the court orders otherwise a party such as Ms.

[00:29:25] Speaker 02:
Nelson would have to agree to be bound by a litigation, which you don't think you have any rights to it.

[00:29:32] Speaker 02:
It's not AIT that would be prejudiced in that situation.

[00:29:37] Speaker 02:
It's Ms.

[00:29:37] Speaker 02:
Nelson.

[00:29:38] Speaker 02:
And the law in the Ninth Circuit doesn't require timing on that basis.

[00:29:43] Speaker 02:
And on the Constitutional, we're squarely under Schwinneman, because she wanted them to have the rights.

[00:29:50] Speaker 02:
and only because of the mistake in the execution of the assignment.

[00:29:58] Speaker 02:
And also, Salesforce has never disputed that the 2012 assignment should have been presumed ballot.

[00:30:06] Speaker 02:
Mr. Sturgeon in the 2012 assignment states, I have full authority to sign this, and that's on

[00:30:17] Speaker 02:
It's on the second page of the assignment, the second to last paragraph, the last sentence.

[00:30:22] Speaker 02:
He says, I have full authority to sign this.

[00:30:25] Speaker 02:
If they wanted to challenge that as a factual matter, the burden was on them.

[00:30:30] Speaker 02:
These were filed with the patent office.

[00:30:32] Speaker 02:
And they never addressed technology.

[00:30:34] Speaker 02:
They never attempt to overcome their burden that even if the 2006 agreement could be read as an assignment, certainly

[00:30:45] Speaker 02:
Given the third clause in the 2006 agreement, Mr. Surgeon, with Mrs. Nelson's authority, had the right to transfer all right and title and interest in the patent.

[00:30:59] Speaker 03:
Counsel, your red light is on.

[00:31:00] Speaker 03:
You have exceeded your time.

[00:31:02] Speaker 03:
Thank you to both counsels.

[00:31:04] Speaker 03:
Cases submitted.