make if there was no  judgment as i understand the district court position to doctors and i could use the continuing conspiracy exception maybe on the statute of limitations but it was your burden to come forward with at least some amount of evidence an argument per see the tax to meet the two elements of the continuing conspiracy exception and the court below determined that you didn't really identify or explain in any kind of sufficient way what the what robert how you would fulfill the second element of that two element test that is to say the new and accumulating injury and so there it's almost like a failure to plead something and to meet your burden and so therefore he felt like on that technical ground he was going to grant summary judgment given that that was your burden for that would have been your burden at trial what can you explain where the error is in your view of particular the long term customer contract that for the refusal to deal cases seem to suggest that there's no new injury if the refusal to deal was fine and i guess the theory is here that the two thousand and seven refusal to deal was final the problem with that is that the jury found that the two thousand and seven refusal to deal was a breach of the contract so if they want to continue to refuse to deal with you they have to do that something else other than who the two thousand and seven terminations you know other words that wasn't the final hacking card because it was ineffective and completely and permanently excluded trans of in two thousand and seven terminations letter didn't accomplish any of those things in fact one of the allegations is that the parties continue to negotiate circuit case law really matters here and so when you mention champagne medals champagne medals there was this cork horizontal boycott decision by all these distributors to try to knock did but all those additional actions took place inside the statute of limitations period whereas the original horizontal boycott agreement occurred outside and so for that reason because of the way the anti competitive conduct was structured there needed necessarily to be those additional actions in order to carry out the alleged unlawful action here we have just a single party x y who has refused to permit you to use their panda technology arguably  when it when it terminated the license but then it didn't need to do anything else beyond that act with anybody else like  the defendants didn't champion medals or the defendants didn't hennigan the ninth circuit opinion where the souvenir shops were paying off the tour operators or in a more recent ten circuit opinion call you familiar with that one yes right ok where the university of colorado denver was continuing to enforce an agreement with campus village to keep out regency from being able to house freshman and you know every new class of freshman where we're basically blocked from living and regency so those cases all seem to show there's this extra overt act usually with somebody patented technology with the termination letter but their refusal to permit you to use x y z patented technology arguably unlawfully when they breached right through the termination letter i mean the terminations letter you know we can regard it as a breach of contract fine but it's also a decisive shot to block you from using their pan detector and therefore technology it wasn't it was in effect and a jury found it was  done and here but did you did you then identify in the opposition the summary judgment of what the injury was give you certainly identified a series of acts but what was the new injury that you needed to identify  champagne medals you know there's a footnote there that explains what champagne medals new injury was one store the other distributors pressured the mills it was the fact that champagne bottles now at a higher price than it  when you know that champagne medals apparently doing twenty min or opposition summary judgment to identify a new and accumulating injury from all of the evidence of new  that the injury had occurred i guess your theory is that because the terminations was ineffective you would have been in a position to offer an alternative for those customers that were subject essentially x y continue to deal well but the point is that in terms of these new contracts these long term contracts with these other people and remember that if the terminations infective you would have been in a position to offer them the technology evidence and the district well well it's when you say they didn't identify any evidence i guess their evidence would be the facts right right and so the so like bad faith negotiations threats to file  lawsuits refusal to you know carry out terms of license and then finally these locking in customers with these exceedingly long contract yes your honor they lead all of those acts that's true so that would be more i'm just i'm wondering why isn't that the evidence that they pointed to in their opposition or summary judgment well the reason is because all of those acts could equally have caused no new injury that is the two thousand and seven terminations which of course they alleged was ineffective entered into afterwards yes yeah so and they're saying that caused injury and the argument is well now it couldn't have because they terminated the license agreement earlier and they were you would have bet they would have been in a position to offer of this technology in competition with these long term contracts but the fact is that they couldn't because the license agreement wasn't terminated so they would have been a licensee and able to do that why doesn't that show continuing injury from new acts that occurred after the brits were your period when a couple responses there whether at the time they alleged this nobody knew whether the two thousand seven terminations valid or not so but they had to make allegations where even without the two thousand and seven at terminations letter that they would have been able to say for example supply these customers and do that but they have license under the patent which the jury found that they did it right your honor but you have to look at the allegations out there and i trust theory and absolute judgment the linchpin was the two thousand and seven tribulation and then they have these additional  additional acts without the two thousand and seven termination then there is no other injury that happens or if they want to claim for example that they would have suffered some additional interest separate and apart from the determination that is look we ha the conduct that's at issue right x y had been with using to deal all along because x y believed the termination was valid they created it is in doubt they didn't take any license payments so none of that change based on the jury's verdict read the jury's verdict was a legal finding about what had happened but the course of conduct is what happened actually from two thousand and four to two thousand and thirteen there was a constant refusal to deal throughout that entire as not a licensee so they're going to have been dominant and so we have a why since well if they would have if they would have pointed to evidence of that in the summary judgment record that that's what they did but that's a counterfactual one that never happened and two of the critical point here given that we're on summary judgment is they had to point to some evidence of that and if they would have pointed to evidence that said look we're going to go ahead and do this anyways we're going to sign up these customers and that we did sign  they cannot point to any evidence like that of actual trial wintery of the new injury and tellingly in their appeal brief they say almost exclusively trial evidence with respect to the acts and the alleged injuries clear in its reconsideration motion which you didn't have to go into this much detail but but it did then i would point you to page fifty one and at the top of it jane fifty one it says in the instant motion trends over and now argues that it suffered two judgment in the guise of a motion for consideration when such arguments should have been included in the prior brief in trends over the all to identify genuine issue material fact as to the new injury prong of the continuing conspiracy exception and it may not have a second bite at the apple and they got on j fifty three trance of his belated assertion that means of admissible evidence support a finding of new injury that's not cure its failure to present such evidence in its summary judgment briefing and then it cites cases that the ready has to point them to your response to those who did have the right to use the technology not only did they have not have the right to but they really couldn't have used it physically because we weren't supplying them with with this the materials and all of that that they needed to do it if they would have said look we were on that cost of of readiness signed up the customers absent affidavit like that point maybe this is a different case again they didn't point to that and they still haven't pointed to that here they say trial evidence summary judgment disposition this is being renewed the other thing i would say which i think maybe make all of this mood is that this is continuing conspiracy exception although it was granted at summary judgment the trial court actually let them raise it evidence that he considered that same way here and he didn't he didn't refuse to reconsider it he even looked at it and said even now you haven't met the new injury they don't appeal the point is a procedural one they don't  royalty rates need to be an economic based analysis and i guess what i'm wondering is you know i'm going royalty rates been characterized as an equitable remedy or is there no room for any kind of equitable consideration in this rule to rate calculation for the ongoing royalty your honor it's there may be in theory there's certainly nine that are presented on the facts of this case that with because what you're trying well that was in front of the jury at georgia pacific in fact is one of the primary factors that the jury considered in setting the fifteen percent rate started with the ten percent rate and because of the greater demand of this technology in all the other ga pacific double counting at the jury rate already depressed and it would have been higher than fifteen percent if you didn't have a ten percent baseline but then to average the jury rate with that ten percent agreement again double counts it and depresses it further patentee because now you have an infringement and on the literally fighting we have that here so you should get a bump up from fifteen percent and then it's your market based factor a j twenty seven the district where the knowledge that cut in our favor as well so we should do well  for the on i'm going right to read the district court that has a hearing and says ok now i have to set the i'm going well to raid is there any evidence of changed circumstances such as the market falling in the parties would have a chance to submit evidence on the briefs and then the eleven fourteen thirty one that the other side cited to as the district court revisiting your continuing conspiracy exception and then concluding again that it didn't work and then i like at the trial that you ask him to reconsider the summary judgment on yes of them have a ongoing will to rate set below the jury rate and the reason for that is because as as a model explains in almost every case the panties bargaining position will have strengthened from that at the time that infringement began because there is now an infringement verdict there is now a non invalidity verdict so the only way the court could go down for that i'm not saying it can't go down but is to take into account precisely the type of circumstance or state that you set forth is although maybe the bottom fell out of the market for this technology it's no longer in demand mason c wouldn't want to pay that same rogering but again the evidence goes exactly the opposite direction here so this is a legal