the last case on our argument counter is new york university versus laboratories your honour's and they please the court charles michael for the primary issue for this appeal is whether the trial court was correct to grant summary judgment before any discovery on the question of whether gale dermis pharmaceutical product called or ratio falls within a license agreement between  product in the license refers to only products that are quote covered by a claim close quote of the license patents one do any examination of whether ration is covered none entitled to recover that that that wasn't determined but seems odd to the judge hellerstein would decide that a new jury wouldn't without any proof or discovery seems odd to me that's precisely and that's precisely what's  to be clear about what we're contending here the delaware case did involve a bio quid went and did find that the generic version of all racial was not covered by the mean patents we're not here before this court to say find as a matter precisely it so judge hellerstein issued a summary order so we don't have written reasons but at the argument the transcript is in the record page nine fifty two it's quite clear that that's what drove his decision and you can look at this court's case  parole evidence that's really at twenty six new york second to fifty five to fifty eight so so the whereas cause in your view recites an assumption of a fact upon which the licensing agreement is premised you say that fact license product in the brain itself definitions was it wasn't we would have a very different case if instead of it saying whereas aeration is a licensed product it said the parties here by amend the license agreements  product means oratio it didn't say that they didn't believe that met the definition of the time turns out they were mistaken but they did not agree to change the contract that's the key point and y delaware and bring in witnesses and so on isn't that a separate claim of bad behavior which would survive even apart from the call it wouldn't your honor and that's because in what you specifically pleaded what all called bad lawyering in the delaware case is an explicit breach of expose the contract provisions that's a paragraph sixty five in their complaint appendix page thirty they said in what breach of contract quote because of your misconduct regarding the suits close quote and that's following a long discussion of how we did a lousy job at trial is it possible that a lousy job t rial could not constitute a breach of a contract i mean you know we don't usually read a contract is being breached because of lousy behavior try and get that constitute bad behavior independent of it under views respect i understand their very pleading tried to make it part of a contract but the fact that it doesn't make it part of the country doesn't necessarily mean it doesn't have some  sure i understand the question your honor i think when they explicitly plead it that makes a duplicate of but in addition i would point out that as judge hellerstein said again this was an interest written decision by believe in the transcript he says how can it be bad fa y u was a party to the case could have hired its own lawyers there's no requirement in the contract i think you would respectfully rewrite the contract to impose some standard of good lawyer and where you could have directed the litigation to because it is as you know how could they have made this claim when they could have done something ok right i would just phrase it slightly differently that it's the type of claim that would effectively amend the contract and so doesn't fit  talk about andrew's appiah for mclaren and please the court you're honest it's important to look at the amendment to license agreement in total under contract interpretation principles which also look at the agreement total and  companies and then the man was entered into into in june of two thousand and nine and in the amendment there is the where has called us ari discussed stating that gelder make knowledge is that the product marketed and sold and the trademark aeration is licensed product as that term is divine that where is cause informs our understanding of operative provisions in the amendment that address the status of a ration as an agreed license product in the amendment  paragraph four and of the amendment that says is which is an argument that can be made your way how does it get to a contract that is so clear that we can that you can get a summary judgment immediately without any discovery without anything else in the light of  delaware said about this right i mean i understand that this is relevant but how is it determined so your honor a number of cases including the self court decision and metro logic decision talk about paragraph four which deals specifically with royalty payment talks about four with quote for world is respected net sales were race after june thirtieth two thousand and nine the parties are discussing an operative provision the payment of royalties with respect  doesn't that still doesn't get you out of i think of the problem you've got with the where is cause because the where is clause states an assumed fact it states and assume fact that that a ratio is a license product that doesn't set that doesn't pop new york law is clear that you can explore whether that was true or not with through parole evidence this is not the stuff of summary judgment you might win later on that the that parties had long discussions and they'd had plenty of opportunity to look at this and indeed orisha does practice the the patents but the fact that the parties assumed it and but the whereas clause i believe is helpful in understanding the import of section four if the parties let me ask you this if the proof showed that the parties operated under a mutual mistake a fact they both operated on a mutual exactly what you have here but your honor if we go to paragraph six of the amendment paragraph six expressly referenced a race reference is a ratio in the context of being a licensed product it says a respect to any licensed product at any time upon six days prior written notice to and why you provided however that such right to terminate can revert shall not apply with respect to a ration the partisan operative provisions are referring to a ration as a license product or your view is  that this they didn't make a mutual mistake of fact this is an agreement to pay for racial regardless of whether practice is the pathans your honor that that's the that's the in import that's the effect of the amendment possible to read it that way crystal clear mistake of new york law and given my background i have trouble and i and i understand that perspective my point is that if you go to the operative provisions and read them in cont use because i'm having a little trouble from both sides and so you're on if you look at the attorney's fees provisions section thirteen b it discusses that if a party asked the other party less crime to join a litigation that any in awe expenses would be covered by the party initiating the suit entirely by that party asking to initiate the suit and that the other party joining will be held free claire and her must against any of a cost of such litigation know there's no dispute elected to start the suit there's no doubt no dispute that they ask and why you to join the suit but position is in essence that they have the right at any time to elect not to pursue phases of the case and if they make it you have to take that to every possible appeal and then ask for here to the supreme court and then you know how much what what is your responsibility when you  you can't do so without your permission as correct your own news and expense of a lawsuit of successful people defending the patent which you own and they license so your view is that any expense includes and which the terms might be viewed as and be used in that knowing something about the understanding of the parties would be helpful or is visit question if we can decide suit means what meaning of suit so the court then went afford and construed the contract based on plain meaning and determined that it was proper to grants and where you summary judgment and come to you put your guy who wrote the agreement who also has worked in this field for a long period time explaining why experts should be but you know put forward your iand should there's not some redress for material now there's a lot of focus here on the word suits but i think suits has to read in context it suits the party elects to bring in their mirroring but the issue is not what to suit me it's about who likes to bring and my adversary said you know one are reading we could just drop the suit at any time just decide that's not true because the license agreement says we can't settle or compromise a suit without their consent we didn't do that it's a very different thing to to let a suit run all the way to a final and enforceable judgment and then make a separate and new election which is the way we view it to go to a different court pay a courthouse really because it's going to if we just agree if if if if if if you when it's going back to the same place where you started it sounds to me like you're back in the same place with the same judge with the same dispute that you're arguing it sounds to me like you're back  you was very appealed and you say sorry can't i we're not paying for anything anymore oh i pulled as i misunderstood your question you mean basically laying down on appeal and letting it be reversed well we're not going to play if you don't want it to be reversed you go ahead impact ok i understand your question it might be different this is where that you could say compromise is the judgment is that there's something  about say that would you call what you would grieve allows you to stop if you lost but must continue if you will it's just it to speak on an appeal absolutely but that provision isn't implicated when you've lost the district court level ok thank you you both will reserve decision the last case on our calendar is our arguments again and so i w