exclusive consulting agreement with abbott's predecessor and agreement the paid him over four hundred thousand dollars paid him consistent with the practices of i stay at senior management gave him access to information that could arguably render him an insider for purposes of the us securities laws and continued what the agreement called an existing confidentiality agreement and provided that it continued against us is that that's not correct in the first place so that we didn't aggregate well the language is the existing agreement between laos and the company regarding confidentiality no solicitation and not competition paren quote the existing confidentiality agreement and quote shall remain in place so it's referring now to the existing confidentiality agreement that shall remain in place some remained employed by the company and then it goes on to say except that certain covenants mentioning certain covenants here regarding non competition shall run for eighteen months after the execution of the consultant agreement in the first place as a matter of parsing the english language here the existing agreement is the agreement in effect that it is regarding confidentiality and on solicitation of non competition is a label for that singular nine hundred eighty four group why wouldn't  on this record is whether there were other nine hundred eighty four agreements and consistent with the nine hundred ninety two agreement which was the one that account put primary reliance upon in the district court and now by the way has told this court mean something different than what  didn't even rely on that that to me is an error that at least gets us back into the district court for consideration of extrinsic evidence and discovery as well there are besides the language of section eleven george and there are other provisions of this agreement that confirm that the language supports the continuation of the entire ninety four decide not the ninety two agreement terminates and ninety five and then we have a ninety nine agreement that gives him vast flexibility and and does not extend a new products and does not say assignment i think you have to deal with some of those areas and you get i'm going to chief judge rater let me let me first start with the way that you paraphrase the nineteen ninety nine consulting agreement because i think it's it really is the paraphrase that would like to use and it's basically the way the district court read it if you look at that first set it's that terms of section two remember that section two is in title consulting services so here we're in a section of the agreement that is defining the scope of the consulting services that dr lapse is going to give to i stepped the first sentence says  shell render exclusive were mentioned earlier exclusive consulting services to the company in connection with the manufacture and marketing of medical diagnostic products it's not extend to work on new products need for me as a flexibility and that's and that's the important part of that is work on new products what the district court said in this case is that the use of the term consulting agreement in the second sentence when compared to the use of consulting services in the first sentence confirms that everything within this quote new products whether or not based on the company's core technology whether or not the point of care blood analysis right all of that says it all that says chief judge rater is  not obligated to consult on new products again remember the title which khalil's very interested in using with regard to section eleven but runs away from a section two it consulting services that doesn't talk about what agreement  set to thirty two i think of the appendix and it says this arbitration provision shall not affect the company's rights under the existing confidentiality agreement to seek specific in force mint of the provisions thereof as provided there it first point there is no limitation it's of the provisions they are up as provided there secondly the provision of the one nine hundred eighty four agreement that deals with specific performance can be found at page eight to thirty two it's the last paragraph and under the judge larry that reading that eva callan the district court have adopted here that it's only those specific provisions that in force but provision would not have carried forward because it's not the language of that now that provision section eleven consistent with section thirteen consistent also with the understanding that section two is limited to talking about what work with regard to new products labs was obligated to do no where does this nine hundred ninety nine agreement discuss assignments make assignments he certainly does and every one of those assignments he has co inventors and it seems to make sense that he is joining the co inventors this time is a lon i think there are a couple of things to to think about here with regard to the chief judge rater first is that with regard to those assignments they took place in a matter of weeks after that two thousand letter that we would like to have declared non privileged and it made it to the court and in fact i think i can't disclose that obviously because the issue privilege hasn't been resolved but suffice it to say that we'll support our claim there's a excuse me a partner with regard to those assignments also that's under new jersey law under general contract law that's extrinsic evidence of course of performance that finder of fact could as he did here with regard to what he could do during the term of the consultancy agreement is an issue i think that's still open for litigation remember that the agreement refers to it as an exclusive consulting agreement and it for purposes of this agreement confidential and proprietary information shall be deemed to include all records data and information coming into my possession or which i have heard or to which i have access or to which i may discover or develop well i would say just pricing that that says this is what he's obligated to work on that's what he's not obligated to work on so it says the consulting agreement does not extend to work on new products so he doesn't have to work on new products what this doesn't say in this section t which defines consulting services what it doesn't say is what he can do what he can do is to is limited by the interpretation of the ninety four agreement and bill for example the garden shovels one that he used that they've used in their brief as the fairly easy one but i think that designing products directly on our dime that directly compete but he conceived of at least we allege during the period of time of the consulting agreement it is not within what he's allowed to do this  that's that's a fair characterization isn't a stretch to say that the communication and assignment requirement of the nine regard to suggesting that ok let's assume that it's really meant to be limited is the disclosure an assignment provision part and parcel that absolutely it is and not only is it part and parcel of non competition it's also part and parcel of the definition that i've not every piece of language is necessary but the critical ones are and if i can say it's almost by definition a contract comes to court it wasn't careful well let me let me let me walk through it if i would for a moment your honor and specially because there were some arguments made in the reply brief which i haven't had an opportunity to address which actually contradict a little bit of what he was saying my brother was saying today first there's no dispute that dr lux was an important person of the company for and he was the chief technology officer vice president head  d he ceased to be an employee it was a fundamental change in his position with the company and he he was being asked in this consulting agreement and agreed to provide consulting services only two days a week if you look at the timing provisions in paragraph two it's clear that they were asking only for eighty four working days or in the first twelve months and forty four during the last six months it's undisputed that he was free to work to pursue his own and that was a fundamental part of the deal he's getting paid at the time for his consulting services but he is free to work on his own interests and the agreement is clear as a district court said and i think as we started out the discussion in saying that the consulting agreement not the services the consult t agreement does not extend to work on new products whether or not based on the company's core technology and whether or not for point of care blood analysis application it was the existing agreement that was extended then in one nine hundred ninety nine so with respect to the continuation of certain covenants in this if you look at a two for two which is section eleven of the consulting agreement the title is clear that it's a continuation of employee confidentiality nonce alysa taishan and non competition covenants that is explicitly specific covenants that dated back to the original nine hundred eighty four agreement that are continued not the others you drill you are correct to say that that employment agreement terminated it was over with the end of the end of his employment this is a new agreement and it's explicit here that the only thing that's continued from his old employe confidentiality non solution non competition cover why not the this is from the eighty four letter i also agree to assign all my rights in any inventions improvements  discoveries which i may make or conceived during my employment so forth right so the why doesn't that go on to reasons why that was not extended clearly as i said there was a fundamental change he was no longer full time employed by the company he had three out of five days a week that he was able to devote to his own interests the agreement says it does not cover new products and not limit him on new products even in this area and so what they bought with the extension of the employee confidentiality was continuing to work on so during his own during the consulting period when he was working for him so he had the ability to continue to generate ideas but he couldn't by late the not compete provisions the reason there's no reference to assignment in the  hundred ninety agreement is because it was a separate company and the covenant to assign the inventions and if you look at the even their own brief talks about the one nine hundred eighty four dream being broken up into specific paragraphs with different covenants and there's the covenant of confidentiality and then non disclosure and assignment then competition and on solicitation there's distinct separate paragraphs that are different covenants and so the greenman makes sense because he was free and everyone acknowledged he was free to do work on his own behalf that least three out of five days a week and there is no continuation of the assignment and that gave him the freedom to do it subject to the nonobservance by dr locks of any of the covenants contained herein or and here's the critical part in that certain letter agreement entered into on january tenth one thousand nine hundred four between the company and dr l concerning employee confidentiality and non competition the confidentiality and non competition agreement that language concerning employee confidentiality and non competition and that in that setting you read that i language what role does the language concerning employee confidentiality and non competition play i needed is it limit is it limiting language or is it shorthand identifying language of the sort that you are opposing counsel is suggesting that ninety nine agreement contains because it looks whatever one may say of the ninety nine agreement i would submit to you that this looks more like shorthand type would be over he did it does the question what is the ninety two green lights and the use of this if it is shorthand to tell us about the way the parties referred to the one nine hundred eighty four agreement when they refer to it in agreement and that doesn't have that language referring to any of the covenants contained in the general ten thousand maybe for the if they had meant to do that they could like you say your honor they could have easily done it they didn't and said they were specific they were continuing only specific  you know i don't think  it's i think it's markedly different also in that it specifically says it's continuing on the three companies and it and that's in the in the title header of sectional level and there's also a reason for that even if he was free to continue to do his own business on his own behalf five days or three out of five during the consulting period now in their reply brief i think it's worth remember it's a little different from what he cited with respect to the language that's that the consulting so they agree that that's an exemption from the assignment obligation if there was one and we don't think there was so it's a separate ground for saying that if he was working on new products it wasn't subject to any assignment of action and as your honour's noted that this language about the work on new products is very broad in his it says he can work on that whether or not based on the company's core technology or whether or not for point of care but in else itself so he could develop ideas and develop his own ideas during the time period that he was consulting on new products he wasn't limited that there was some emphasis in the argument about the word exclusive saying that he was giving exclusive consulting services the actual title agreement is consulting agreement and the word exclusive only appears in the first sentence under consulting services and it's that he's rendering exclusive consulting services to the company in connection with three specific things all of the rich relate to kind of past projects that he was already working and one of them consultancy period started it was work that he was working on and they are coagulation products both of these both of these patents so they they are part of the work that he did while he was still an employee so the fact that he did some assignments on those two key issues in the language you don't have to find that this agreement is completely unambiguous and free of all ambiguity but respect to the two key issues one is that the consulting agreement doesn't extend to the work on new products and the second is the law on the extremes of evidence is not that it just district judge can never rule that a contract you know doesn't give ownership without going to discovery without going to extremes of evidence but if  clear the judge can decide no you don't own these patents and you haven't presented evidence because ultimately the only way abbot can show that it owns it becomes past these rabbit because bands they're assigned to us their own by us is by by an assignment agreement this which was of the simon agreement in this document and it's not there in the district judge correctly found that if if you we should find that in fact it's something said that the last ambiguous with respect to both the exemption of new products and the whether or not there is a continuation of the signed code because if there is no it's in no continuation of the assignment covenant then raised i think there was there was a lot of emphasis in in in their briefs about how it wouldn't make any sense for i stand to have agreed to pay dr lots all this money and let him continue to get the fruits of his ideas and conception during the  during the consulting period but i think that's the wrong way of looking at there are two parties to this contract and obviously dr loucks wanted to continue to work on his own behalf and everyone recognized he could do it and it makes perfect sense for them to say that alright you can continue to work on your own behalf but we don't want you to compete we don't want you to violate those specific non competition cuts and we'll extend those during the consulting period and that was the deal there was no evidence that there was any deal here that that the full scope hundred eighty four assignment provision which would assign any idea on any subject you ever had including shovels would say just gave up that as long as he was an employee there's no evidence of that full scope of the agreement was incorporated into the consulting period and in fact the evidence is all to the contrary he had the freedom to work on his own that he could that only certain covenants were continued and that new products and new product ideas even in this space competitive space were exempt from the consulting thank you in three minutes i'll thank you very much your honor what i have not heard an answer to this morning is why the parties the usage is the sort of extrinsic evidence which is always admissible to understand what a contract means and that's exactly the sort of evidence that was never even considered by this district court in making its so called facial ruling in this regard if we were making fundamental changes in one nine hundred ninety nine then how come the one nine hundred ninety nine egremont says the existing agreement should remain in place not certain agreement or these paragraphs of the existing agreement or simply rewrote the agreement to say these are the only things that are being continued instead continues the existing agreement and just bressant to a further point with regard to our earlier during my opening presentation about how you might read the term confidentiality or not competition i think that the stanford decision from the supreme court this week which a permanent case that they relied on in the district court against us dealt us that was for a visitor why wouldn't it be for a consultant makes perfect sense that a consultant much like a visitor would have an obligation my friends argument with regard to section eleven he's very fond of looking at the title but  section two he's very fond of looking at the text but not the title of that provision if that doesn't show that there is at least an ambiguity here with regard to these contracts that titles us to remain and then i'm not sure whether we could ever show  ambiguity in a document but i think judge price in your initial comment to my friend is right this is not particularly when you try to put all the pieces together the most carefully written piece documented or documents in the world are not grading papers so we're not grading papers that we are we are following we are certainly trying to understand what the intent of the parties was and we have their mind which and had the district court properly considered it we have the surrounding circumstances which under in jersey what can be understand not very i'm not and to but to understand the agreement finally to your point to your question my opponent john bryson about what what we do from here we think at the very least we  trial court we should get as in the d d p case some discovery aimed at the jurisdictional issues the intent of the parties would be the focus of this this discovery what's what was the what was the usage what with this  history can we have the depositions of the people who were involved and of course we want that two thousand letter whose contents are generally reflected in the thousand and seven memorandum which is not the subject privilege and which is in the record which the co