fourth bench following a jury trial there were two plaintiffs there were two classes of products accused there were three patents there are a lot of issues there in the brief and in the limited time available i'm certainly pleased to address the issues in the order as the court would to more nuanced i think some of the more straightforward issues include the damages issues for example the jury in this case awarded lost profits damages to one of the plaintiffs in the case j d s uniphase finding that it lost profits on sales of infringing legislators a review of the record however reveals that there was absolutely no evidence presented whatsoever concerning j d s uniphase his capacity to produce any so it seems to a straightforward issue there was no evidence of j d s uniphase its capacity to produce modulators they were not entitle to recover lost profits damages in the absence of modulators mcor could not have produced transmitte uniphase because there was no evidence that j d s uniphase could produce those modulator right no more than six weeks to get it in full production and out there it's just that they didn't decide to move forward with it is that that's actually a correct and do i understand that there they didn't offer any contradictory expert or whether akio could have offered the non infringing quantrill better all along and he said yes and i asked him in fact he testified that they could have done so from the start of the damages period isn't that right and he said yes i may  even the plaintiff's expert agrees that the non infringing turn to give quantrell matter which the evidence plainly showed was acceptable to the customers that our witnesses testified was available  the plaintiff expert agreed the defendant could have done that from the start and you don't think that the jury was for eighteen use a substantial evidence or for that it would be substantial evidence just the fact that it didn't you didn't actually do it for seventeen i don't think so your honor no i don't think that that meets the standard under green pretty bright the green processing case it did the testimony i think was they just didn't get around to it there was no willfulness allegation with respect to infringement of that patent so that wasn't an issue  it was just not the highest priority project within the company but the testimony of the only testimony the unrebutted testimony was as soon as the engineers turned to the project they used know how that they always add the used that they always had had in fact reverting to the couplers was exactly what the patent said was in the prior art the patent purported to be an improvement over the use of the tech and i jumped into a different issue no three months i don't want it i run i really want to write motion a motion the soft in the settlement of that case no i did not negotiate in house counsel so i don't know what's in the record i'm trying to distinguish between what i know as a lawyer don't feel anything i know one yes that is in the record but the the it was an abuse of discretion to find the way it was the motion was filed within two weeks of entering into the agreement the court found there were many moving parts to that transaction and it was never clear whether that transaction might ever come to fruition as one part of that transaction j d s uniphase and finishes are entered into a covenant not to sue that is the subject of the license and release defense but it was never clear until the day it was executed that it actually was going to happen and then within two weeks moved sought leave to amend to paly license  press those defenses as long as it's subject to an infringement claim on those atoms it's too it's not reasonable to expect that option would drop those defenses when as it turns out since we're here for the court today talking about these issues there terminate a legal action and not the type of conduct you revoke arbitration in his art under that agreement optimus facing a jury trial in a matter of weeks and promptly no delay promptly brings to the court's attention this license and release defenses in order to fend off the threat of the jury trial and as i said option was free to plead in the alternative all along as long as stands accused of pat infringement the agreement permits it and alternative pleading permits it to continue to press its invalidity a non infringement declaratory judgment consequence was not under an obligation to drop those counter claims and run the risk that the court would not permit the license and release defense to come in and now it would have no declaratory judgment invalid or not infringement consequence so i think that is an abuse of discretion and with respect said it did not intend to release the pennsylvania litigation that was beyond the pleadings in the court the court finds that the right was the right to grant the license by j d s uniphase was lose radio as another grounds for futility and there was no that's never the right answer but under new york law which governs the which governs this contract can't be the right answer that the parties negotiated an agreement that one of the rights that was negotiated for was viewed so that's with respect to the license and released offense with respect to standing the court emco was given the right to sue and court was given the contractual right to sue but it was drawn here that's correct your honor but our position is that mcor lacked the sufficient rights to exclude that are necessary confer constitutional standing it lacked a genuine before it was given that it was an exclusive because it was not genuinely an exclusive right to an exclusive licensee in that field your honor j d s uniphase retained the right to grant to other parties including obvious license rights including in the field that  were other house standing and if he is that had the right to sue on these pads that's right there is no that's correct we don't contend that there was somebody else that had the right to sue but the fact of the matter is despite what the agreement might have said it doesn't even characterize all the licenses as exclusive with respect to three seventy four patent sort against the quantum it or not even called an exclusive license but even with respect to the license under the bridge called the logan patents it of your cat and patent rights then they could grant you a license in order to settle that suit but that's right no evidence of any ongoing litigation between you all and j d s you such that it would entitle you to claim that you could doesn't get you a license it's still a decision by the license or because j d s you would have to decide it's in their interest to let you a license in order to settle with partly the j d s uniphase may choose not to grant the license doesn't change the fact that they were free to grant the license and that undercuts what he didn't point out to the court is that there is a contract that was in the record in before the jury at page eight twenty two sixty seven there is a contract between g d s you an employee or that says that anticipates that j d s you will provide four hundred schedule c modulator units prior to the end of each prior to the end of each two consecutive fiscal orders there's some dispute whether that's four hundred every poor four hundred every two quarters but the point is this four hundred even if it's every two quarters would be more than enough capacity to make every one of the five hundred some transmitters what about the other lost profits issue on the other lost profits when you hold sundance and sundance as if you don't have a technical background you don't get to offer technical type of testimony that needs to come from one of skill in the are like you know infringement testimony obviousness testimony that sort of  ward here but again with regard to with regard to this evidence the question is whether of that evidence the jury was at liberty to disbelieve and we say yes and we sa nothing do you agree with me not based on nothing right if the only evidence of record say there was no evidence you introduced no evidence whatsoever and they're only evidence of record was incredibly simple to do it at no time flat and you didn't even cross examine the with the jury be free to disregard that evidence and reach a contrary conclusion in light of no cross examination and no country of it it's i think the jury could because the jury could simply say that i don't believe that witness i don't believe that litigation again i would always be substantial evidence if that's the case right and because even in the complete and utter absence of evidence you could say it substantial because the jury could disregard their proof and they have the generation quite answer expert takes the position that the question could have been designed around in a matter of six weeks and twelve thousand dollars you six weeks and twelve thousand dollars is what the position taken is by options expert for the design around so question what do you think about that assertion answer that didn't may and i think you meant to say make a lot of sense to me because of the question could be designed around for as little as six weeks and twelve thousand dollars i don't understand why it took them seventeen months to and he is only saying that it took seventeen months i would say judge more of that expert so it's sufficient doubt in the mind of the jury for the jury to say you know what that didn't ring true to me that evidence that he gave about the technical ability to design around that didn't ring true because if it only cost them twelve thousand dollars to do it why are they not designing around until seventeen months after remember the damages period they've done it by the time of trial but they didn't do it period eight months from the time that he had the aha moment that he could make this change to the time when the change was actually made i think this jury was allowed to discredit that testimony based on our experts testimony let me turn to the motion to amend the judgment the most intimate to admit and i think the court appreciates that this is a discretionary call on the part of the trial judge but the really important point here is that the motion would have been futile because g d s you couldn't give the license but coming up not to sue but they claim was given in this and that's for simple reason of the intellectual property agreement because remember the intellectual property agreement only about the basis that the court d s you can only grant a license in the case of what's called qualifying litigation under that license agreement and this wasn't qualifying litigation so j d s you didn't have anything to get interpretation of this contract well but remember that we were the exclusive licensee so that's what was the that's what the court was looking at and saying there's no point in this because the only rights  you has to give the only possibility the g d s you has to give rights is ins when required to settle intellectual property litigation and that state court case state court case was not intellectual property litigation and so the court i think purchased one of these affiliates and licensed it to sell downstream in the y e v chase that's what we have right now is a case of constitutional standing and injury in fact we have an exclusive license and in fact as our twenty eight jail letter pointed out j d s you could not grant that without violating their cooperation clause of that agreement with us but i think i have answered all the points that my my colleague here on the other side has raised in which the court has uniphase could produce modulators that agreement includes a section i think it's three point six called capacity shortage or capacity shortfall that agreement specifically contemplates that j d s uniphase may not be able to produce