allow arbitration to go forward on contract claims that relate to business harms that are alleged were inflicted by a lumina on a right that's mostly it with two qualifiers that i think need to be considered to have a full picture but that's that's the general aegis and that's the high level there are two pieces that are important pieces to that that can't be ignored one is that the claim for breach is not dependent on the infringement claims so there's i p r as right now and for example if unfortunately in so when you look at the relationship between the infringement claim the breach claims when that's related to infringement that goes right there is a relation adolescents or they have a license and the license protects them from any if we if we lost on infringement just on technical grounds or a pact was invalidated we drop the claim there breach of contract claim we go forward and under this agreement that should be civility of any electoral problem right and so the clearly in the license is related to the issue of  you're supposed to favor arbitration when you can you want to say there is a factor that i think will be important to you that i just want to explain about the nature of the good faith and fair of your ok it is about unfairness under the contract it is not by any means all focused on the patent infringement claim ok that is the major one because it's also in breach of contract claim it's also in the license defense so that's clearly i understand why the court thinks that's the gist of this to some where the allegation is that when we gave notice of breach they call it pretextual notice or breach because they were not in their field of use because their past involved gender let's assume hypothetically that they say yeah yeah we're you know we yes we would be infringement but for the life and so they would like to keep the determination of whether there's a license velma plus collateral surrounding that issue and the patent case because they've got a contract that says if you've got if you that's related to him for if you don't arbitrate a case as long as we understand that they are part of their breach claim has nothing to do with infringement and we all agreed that has nothing to do with license and nothing really patent infringement i'm ready to move there may be a piece that i'm not sure of that said paragraph sixty eight and sixty nine about the pretty casual breach notice we gave concerning the customer field  it definitely exists i think the way you write it just the motive of thought you have there is upside and i'm ready to go at that i so i want to make sure we can't leave this hearing not understanding there's a piece there breach which has nothing to do with license or explain why that's what i think is the independent ground to reject this argument because there's aspects of the breach and it's have nothing to do with infringement or license but holding that aside and that's been argued by as allow and here and i can give cites to that i'll do that as needed first thing they would like to do a living nation or taking away from them and putting it over in the purge even though it is their complete defense to charge of  fall within arbitration that interest me coach on that i think that's backwards given all the rules about ports of arbitration and the fact that breach of contract is arbitrary now in the tax i think the fact that the exception this carve out is limited to issues as compared to claims shows how narrow it is claims is a broad concept issues is a very narrow concept when i think it says issues of infringement or carve ok i think that saying we don't want people to do these particular issues it's not at the claimed level which is very unusual in my experience the disputes relating to issues of infringement mean like an infringement claim you can just have the i think relating well my cases on the fact that the guy contract claims that have nothing to do with license or infringement so one would think at that first impression that i would win because their motion of good faith and fair dealing supply agreements all about intellectual property if they wanted license to be carved out of the are brought arbitration agreement they would have sat it would have been that simple in the case of this pretext to a breach of art in the field of use there's no pattern that's been identified by anybody that would be infringed it's a breach claim they said you breach a good faith and covenant of fair dealing because you alleged that we breached the field of use no one said anything about you can look up and down and i don't mr gill is going to say but he's not got an answer for you if you look at the actual counterclaim and what's there and so that's what i'm basing my argument on but moving to the piece where they do say you knew that what our product was you must have licensed us to everything before you i mean that's the gist of it is you knew that you did so whether it's express implied or anything else you couldn't license us to use your great mint and then sue us fort as a business arm or let me they don't they don't and i've been ineffectual in conveying that i politics to that in your ok in their counter claim their third counter claim relating to good faith and fair dealing and there's pages of of  explanation before that at two thirty nine it starts noticing creech they've pages five seven paragraphs on that question and then in the counterclaim itself they refer to this the fact that two forty seven the paragraphs twenty seventy six and seventy eight the customer field of use is defined and then in line thirteen and fourteen reach the government in good faith in fear again or good morning in the district court alumina took a different position and this position is pointed out in the disk records were this is on page j eight months as of the date of that agreement and two years would pass after that agreement was signed before we got sued what changed of course was that alumina instead of being mean our supplier became  to show causation so there is more that's in there to link the breach to the damage that we're going to show that's how we have to prove damages because we do believe we were heartened and this is a case  not an argument that there never been a license if the entire matter was as illumina has asked sent to arbitration and for example if alumina one that arbitration he would have the reason too because if you sever the entire part well then one of our principal defenses depend litigation has just really been taken into a different form and that's a little gated before an arbitrator instead of before the district court one the essence of pa infringement is taking actions quote without authority which isn't thirty five u s c two seventy one it's our right to be able to show that we in fact acted with authority because we got these rights from illuminati and we agreed to and consumables that we were buying from alumina up we were going to get sued for infringement for using those within our field of use and in fact that's exactly what's happened they've sued us because we became a component of them when they bought their or not or at the end of the day the case doesn't really turn on what you look at relating to any broadway or a in their own way because i don't think there is any way a reading showing that you were deprived of the benefit of the bargain and in fact in a calculated way and so we do have additional facts to show that we were in fact being deprived in a calculated way of the benefit of the bargain but that's still comes right back to the essence of the case that's because you're there as a direct and proximate result that's correct is the essence of the case because we cannot win either claim i'm sorry subject to the exception well sure but there aren't claims aren't subject to the exception in other words he has case law that says if you have what sake free cause of action in a that's what i ask about directly or indirectly you're talking about he believes are so collateral to the infringement defense that they can be curved up and sent over to arbitration and what i'm saying is i think the only things that fall into it makes no sense to separate for the practical reason which is the autocratic can do pretty much anything he or she wants to do and it's basically very difficult as the court would know to get an arbitration award reversed on the oretical risk this is a real possibility i want to just very briefly address well call the the standard here which is there's a lot of disagreement you know parties about what the rule of law is here actually means and one of the plots because there was some confusion in the district court in the among the circuits after the eighteen to case and grant not made very clear to very important princip s the presumption the first is that the presumption applies only when you have an arbitration agreement with his and dig us out whether it covers the  if that is true then the presumption of plots and then it goes on to say that you hear the presumption and or an arbitration only while the presumption is not rebut it there is not some general the first principle arbitration is the following arbitration is strictly a matter of consent and that's a way to resolve the dispose disputes but only those disputes that the parties have agreed to submit to arbitration  and the case goes to arbitration and first it is true that the presumption applies if there is ambiguity but he's skipping the step in step which is you first have to ask yourself ok acknowledge there may be some ambiguity here i cannot resolve it can i answer the question what is the contract provide for and here i think it is clear that even if relating to is a broad term which you can appreciate it two points i'd like to make first on a textual argument regarding the interpretation of the exception to apply it the way we've been discussing about it today is to ignore the distinction between referring to the claim level and the issue of issues to be addressed were laid into means discovery issues or if you have an infringement claim the damages that follow so there isn't any been around these issues which is it carved out but i don't think it leaps over to things like license which seems to me to be a pretty big basket there with respect to disputes involving any ip right and that's what this whole matter to mouth there's clearly a debatable issue there i've got a point i'm making is that if do that using the term issue as compared to claim which would be the normal language your claim would be so much broader in other words if the way that that is already that reading a claim of in for anything relating to a claim of infringement i guarantee you judge clever to rethink that swe in light or anything about licensing so you're basically ignoring that the distinction between claim an issue and it to to my mind and the fact that this is an exception in that so you know and yes i understand that's one way to look at i'm saying the way i'm arguing with you is a legitimate way to look at this it's legitimate to say when we try to draw a circle around infringement we're not going to draw to include all affirmative defenses because that's what this the rationale that i've been hearing today would do we're going to it forced me to question i mean that that we're bringing that here today that that's never been argued that that was an assertion of of the complaint i just think once you take that way if this all becomes so broad and it sweeps in license they would have included license if they wanted to include license that's a legitimate point and i'm just saying it's a debatable issue in which we know what how that ends up that ends up for betray should the only other point i want to make you've been very generous with time today is this suggestion that we didn't make the point that there's this whole other reach theory that and it's being the end it doesn't any point in the process require consideration of patent or license issues that have been presented anyway and that's this we made this protect