want to begin by addressing the questions that we put in or order absolutely i suspected you might want to start there and we appreciate the opportunity to address those issue that issue waived they'll proceed on the understanding that foreign law either doesn't apply or that any differences between foreign law and u s law are not dispositive or relevant for purposes of issues presented on law but no party had raised any sort of issue of south african law either in the district court or on appeal so and if the foreign law doesn't apply what law does well so there's no such thing as u s law well it's interesting you sky right exactly so what you'll see is different approaches and some of the cases so in the rd circuit case that i just mentioned the bell rate case what they said is parties generally carry the burden of raising the issue that foreign apply and the burden of adequately proving foreign law to enable a court to apply where parties fail to satisfy either burden the court will ordinarily apply the forum's law or we narrowly ordinarily  circuit law there's no rule of requirement what you do see is the consistent well it's within our discretion it is within this court's discretion however i will say that consistently in the rd circuit law you terminations of the and you're saying setting aside the issue of waiver in this case so we go to that issue right if we this is the nd question that the court asked really which is if we do apply german law in this case is it possible that sirius x m somehow maintains or holds on to its up license rights to those survive under german law again the answer is no and what i'd like to do is of least some high level principles as well as go to the two cases that this court mentioned in the nd question so the st key principle of german law that i think it's important to understand here is the german law known as the shoot statute or the statute of protection and what the statute of protection does under german law is that distinguishes between two types or two categories of legal issues that may come up when you're considering a contract the st set of issues relates to issues relating to the contract itself formation of the contract terminations things like interpretation of a term in the contract for those sorts of issues are deemed to fall outside of the statute of protection and so what you do is you look to the german civil code for answers to how to to address those kinds of issues germany of course is a civil law system not a common law system and  addressed a few of these civil law principles of german law in the district court below in a few places we felt that in a few instances those principles provided some additional support for a positions is that the reference to one hundred and thirty three and one shifty seven it's a yes there's a reference there and maybe one or two other places it gets mention but by and large what we find is that ap applying either german law or for example new york law or  suggest that even if the master license agreement is coming to that sub wife survive they do not your honor and this is the point i wanted to get to so we talked about that st set of issues where you live civil code under the statute of protection there's a nd set of issues and easy issues have to do with the substantive property right that is addressed in the contract itself in this case an intellectual property right and under the statute protection issues about those substantive issues things like origin of those of those rights or transferability ownership license ability those issues are decided under german law by looking to the law of the country where those rights originated and that is a matter of a pretty clear german law i will cite i thought appears saying that as a matter of choice a war germany would look to statute of protection this choice of life issue for whatever reason germany has decided that we're going to apply german law to these contracts even though so you do look at those decisions st and you see that they do involve very important distinction the decisions actually cite two specific statutory provisions of german copyright law that are not present in the german patent statute and there are numerous salient differences between and germ at mt copyright law under german law which you would read for copyright law terminations the master license would not permit license under german law under german law under copyright law based on these provisions you would find that yes the sublicense would survive under that the narrow circumstances the decision not apply applicable here and moreover we find that in fact those decisions by the way which were issued from the st division of the germany highest court which deals with copyright that sort of not that th division which deals with patent related issues to our knowledge there to tell us what german law would be in the circumstances here i want to understand the question are you saying how would the district court go about determining what you know and is there is there a provision you know as is exists within the united states the federal court can ask a state court to pine on state law if the district orders and doubt about it didn't is there a provision that would allow such a reference to  german court and would the german court answer the question if i don't believe so or at least i'm not aware of any my understanding under federal rule of civil procedure forty four point one that district courts are allowed to essentially with the assistance of the parties arrive at these issues for example by reference to certify translations of foreign law and in particular expert analysis so you get someone who is usually a member of the bar of that foreign court who can come in and provide assistance to the court in deciding that they should think unless one ha have other questions about this aspect of it that i have a couple of questions about determination under the supreme court's decision and mission case it's now clear that the rejection of a contract doesn't terminate the contract in bankruptcy so if i understand your position is that your client had a right to terminate the master license agreement or a couple reasons one because there was a failure to make this payment of these p fees and and nd that had the right to terminate the because of the bankruptcy and that's correct there are a few different ways to get there  those are those are two of the theories that were presented yes there was also a theory that under the contract itself likely of seven two a party if a material provision hasn't been complied with there's been a breach a party may provide notice to terminate the master license so it happened there are a few different theories it happened at the very latest in two thousand and fifteen when front of him or in november exactly the letter that was provided to the district court didn't consider as part of the senate so but wasn't that the st time that it was german and i would say no your honor so the earliest would have been in two thousand and ten when worldspace and fran hoffer joint you have a license or who has declared bankruptcy and a licensee says no no no i want to i want to keep that that contract i want to maintain my rights and that contract even though the license or is trying  the unpaid fees you clarify my understanding is that those were not these related to the license in this case but they were the is or with respect to foreign i believe that at least some of the fees related to the patents at issue in this case if not the patent families at the at the u s p t o that doesn't seem to make a part of the patent families so the foreign counterparts not the actual maintenance b s work pay well that we put in our claim has there ever been a claim that maintenance fees would do and not your honor i would need to look at the appendix to see what specifically the line items were in the unpaid proof of claim that was made it was i think sixteen thousand dollars euros and there were various fees in there some of the u s maintenance fees why would it be in europe that makes no  sense i think that's right your honor that it does not cover the u s maintenance fee but again i go to the language of article four which is very broad it covers all costs and fees related to the the contract question that we need to resolve is a contract question about the subs license but rather about the masters and i took it as a sensually beyond dispute or maybe actually undisputed that excess i'm a unrestricted sublicense from world space by the time things went south for world space and it least by the time of the settlement agreement into the bankruptcy xom had fully paid everything provided for under the seven license that didn't have any more money to pay to use the patents for the next ten years or whatever the life life it was but the question is what happens in that circumstance when the master license  by the district court nor was it razor argued by the partners that that's best correct or i'm sorry i don't i don't think that that issue are you recognise that the court issued an order to bring it's already tension but we don't think that issue makes a difference in this case it's we don't need to rely on questions of german law to wit it would we would it would be a question in this case if that was the governing principle well germany that a sub license does not terminate yeah but but you're posing counsels me to arguments as to why those cases of discrimination one they didn't involve us law actual property rights in germany would look to u case the the federal court the federal court in germany specifically referenced there's a passage in there that they have checked with the civil the ten civil division of the federal court of justice which is competent for patent law and checked with the with the th the vision to determine whether their decision on a copyright case would be different and at this case that they would alert they would alert the bar that that would be the case so to certainly object to that settlement agreement and they said nothing at that point in time and it was approved and ordered by the bank to court and action of the world's face bankruptcy really change the subject a little bit and ask you a hypothetical hypothetical let's suppose in in this the licence agreement that worldspace had made the st installment payment of what two hundred thousand dollars and refused to make any more payments and from every had come in and said you know you were in breach of the agreement and the agreement is terminated what would receive royalties well i think i think they do and in that in this area that you're talking the hype that we're talking about which is not what happened here from offering to go circumstances would have a creature contract ran against real space so serious would be paying to world license grant was put in place well i think that would be a different scenario the scenario you posited was under the terms of the agreements that they had begun to make payments and i think in particular under these agreements iran understands there was a time period under which the license get the sub license with worldspace having been referred to world space by from half or what does the record say about what their worldspace understood and maybe even more importantly by their front half or understood that x m was licensing technology that it was going to build into its system that was going to be hard to remove i think from i think all parties understood that that was and what kind of here under all these agreements that the technology was developed in conjunction with x and from operatives on this is part of the repeater network the retransmission and satellite broadcast system you know here in the united states that i don't think is is in dispute at all and so to your reference to section three point one of national license that is as clear as possible on its face it has one restriction in that the scope of the license grant here agreement that the license had already been granted to sirius under the subway license and pursuant to the master agreement in that the terminations wouldn't affect that correct and the reason the reason for but it's clear for example under section seven dollars if you look at ph two where they require brief they characterize that the way they characterize that provision and i can take the court through it it is the opposite the opposite of what the actual provision section point five says that's number one the nd provision and they point to section seven dollars that they characterize as an ongoing payment obligation and what that agreement actually says is that no termination sure that what the claim they put in was actually sixteen thousand dollars euro which translates to twenty two thousand dollars it was it is an invoice from european council that goes to either prosecution fees or the maintenance fees in europe  nothing to do with the us we're talking about sixteen thousand dollars euros or twenty two thousand dollars that they're using as the foundation to say ok that was non payment on the matter license agreement and that has a cascading effect so now on to the sub license when you preserved products and services sold prior to the date what one would then argue that that doesn't mean that that covers only the actual physical products or the best services but not not use the license technology with respect to any product sold after terminations of the m l a what at appendix four hundred and fifty one section point seventy five actually says there's no terminations or expiration of the m l a shall prevent the continued use by customers or customers of sub licensee of products and services so our date of terminations expiration that's a very straightforward provision says is previously granted you get to continue to use it we didn't go on to say that if you can't get what you don't have we think is very well established under u s law and an agreement between worldspace and sirius x m whatever it looks like cannot be used to undo the rights of the pap holder frond hoffer i'll say to it with respect to german law there are additional distinguishing features with respect to those cases so and if this were reminded we would address those in the district court in the st instance we think they're pretty significant i'd also just mention context of this of course is a motion to dismiss the record as you mentioned it is thin and we don't think that there's sufficient evidence certainly it's not proper for the court to bring in things such as the statement that well there was a substantial investment of capital and it was in reliance on a statement that was made we don't see any of that of course in the simple complaint with the amended complaint that front hoffer has submitted we wouldn't expect it right you wouldn't expect it we didn't even get an answer to our complaint in this case there was as argument that was raised that well there's nothing in the m l a that addresses the rights of the sub licensee or constrains them anyway we i think we've outlined that pretty pretty in a detailed way in the reply brief but seven point four and seven five it's clear well established principle of contract interpretation that the inclusion of the one excludes the other and in this case we have statements that say you can continue your rights after terminations provided that payment has been made in full of according to article four and seven five says this sub licensee customers can continue to use products sold before terminations so we think that both of those provisions give a pretty clear implication of what happens and what