with the idea for these locking wells and the court concluded that the idea had originated with an engineer who used to be an arm brand and eventually went to paramount plastics we contend as error because section two three one t their design and then they said we don't want to use you rembrandt we're going to use twentieth century plastics and they manufactured with twenty cents worth century plastics see these sleeves with walking wells for three years in the interim miller leads re that's all right and so would get me back to section two three one two three and again the focus there under the section is who furnishes the specs not who comes up with the idea and in this case again the idea w it could have said no and that's again where the district court went off on section two six one five and said hermann if you could have said this was commercially impracticable and decided not to manufacture the problem with that is that really isn't commercially impractical if you look at the if yeah i totally agree with you but but that's the wrong approach and here is why pyramid as the manufacturer is entitled to rely upon this section two three one two of the code works and the problem is if the pyramids perspective we didn't believe we were infringing we didn't think the product information but we now have a test to make a choice according to this report either we start manufacturing thereby breaching our contract with roundhouse had been manufacturing for around house for three years before we even got there before we weren't even in existence as far as the locking walls go there was no difference whatsoever it was the same exact same locking walls have been done for three years before so in that regard were round houses specifications i mean we're talking talking tolerances of you know of three hundred seven inches what we're dealing with here so it's these are special occasions from round house to watch and runners are saying you will follow these facts and the twenty three twelve and it's the language that the district court interpreted under these facts we think it is crystal clear that the specifications were furnished by in this case the seller theorem and that's true for two fundamental reasons it's i think it's pertinent in the sense that big the idea for the specifications came from the ultimate founder of pyramid the bottle court which is the fifth circuit case that we've cited recognizes sort of but for test but for corporate and he wasn't so i don't quite see the point and i think that is a fair point what i would suggest is standing alone if that were the only fact this might be a different case that doesn't stand alone in fact as we look at what happened in one thousand nine hundred seventy when mr miller was with pyramid there is a back and forth with the court as to just that there was an exchange a collaboration of what we're going to do with the specifications and in fact there are two memoranda in the supplemental excerpts of record that i would on in fact the period of manufacture of these in stringent sleeves was only march i mean after the teeth and desist letter was march of ninety eight to october of one thousand nine hundred eighty and so there was a little involved there and it was a fairly prompt settlement of and here of course but the problem is only ours if this court were to reverse the district courts finally i point out by the way that the district court's opinion reads more as though it's about to impose liability upon pyramid it was a close call for the district court i would suggest that it struggled with judge miller struggled with whether to impose indemnification liability upon pyramid ultimately chose not to and of course we didn't choose to appeal that decision we think that  right the thing i would say is you need to step back and figure out what the policy is what is this statute about and why was it put into place by the drafters of the uniform uniform commercial code in adopted by california i w this statute is asked the question who is in the better position to judge and evaluate and then avoid the risk of infringement claims if that's the question and some commentators suggest that's exactly what th statute is about there is no question that in this case that pyramid was far better situated to decide is there a risk of infringement or is there not it's plainly the case prior to the cease and desist letters  the record that's true that is the record on this point although i would say if i'm the inventor and i'm asked by a buyer to be used locking welts and i know that i've been party to an application in the past i might want to inquire to find out whether the  miller knew in ways that the round house could never know what his involvement was in actually inventing and getting to the technology one of the arguments that the district court adopted in connection with the underlying infringement lawsuit was asking or sparkle in other words mr miller you invented and so you can come in and challenge the validity of my client roundhouse could not possibly have known the merits of that arsenal are startle argument in the same way that mr miller could have understood because he knew was wro it's also true that after the cease and desist letters came he that even then did not step forward and disclose oh by the way i was involved in the application i was involved in i'm the inventor and so i would suggest that even after the cease and desist letters  the provisions of section twenty six fifteen of the california commercial code and simplest task of supplying the sleeves to roundhouse it didn't do that instead what the records left is that if you roundhouses an important customer even went so far as to suggest that it did not believe there was infringement and ultimately it made the decision to go forward i also point out that it was pyramid that litigated this matter to the hilt it was roundhouse to settle the early on and now pyramid as long as we got that walking well design that's right that's absolutely right i guess the fundamental point here is though is it fair then to shift the risk of if you're a man as unilateral decision to pursue this litigation over to roundhouse under these circumstances we think that the limited case law that there is clearly supports the district court's decision the jack frost heaves is very analogous it is and we really can see both unpublished and not binding on this court it was however rely upon heavily by the district court and so we commend it only insofar as it has value to this court we think fundamentally this court should affirm the district court's ruling in judge wright and not require roundhouse