problem related to a conflict of a single law frome now is turned into an agreement that provides for an essentially royalty free license for the entire portfolio consisting of thousands of pounds that is the position they're  taking here is the position that ericsson is taking and just records and putting in a new action they filed in florida as well the narrow agreement designed to solving their problems simply doesn't support that reasoning or that result with the court in the agreement itself and the patents that were at issue in the texas case were addressed in the agreement in article four of the structure you say they were in drafting the agreement through the damages provision ye agreement provides that if there's lawsuits based on them which there was and texas based on those four patents the damages do not accrue until the time the lawsuit is filed which is obviously contrary to well liability is not a term i believe that is defined in the agreement first and second liabilities are terms doesn't require an adjudication of infringement so for example a company does often approve or take a reserve off of potential liabilities where it is based on a loss of this will be filed or a claim that has been made so as a company they take a reserve of several hundred million dollars in many instances based on that potential liabilit through article four or interview the language or before is that the damages do not accrue independent of whether there's a finding of flight ability of not a formal finding of liability in a cour curse that eriksson has that right it knows it has that right without there being a finding of liability that is something they can that is a right that they have by virtue of this agreement not by the virtue of anything else and that is a valuable right even if there is not a formal finding of liability they know they don't have to prove damages they can pick out every kind they're planning and that is the language of article four section one the liability view clearly applies to patents that only existed at the time the p c r it was entered into and that's made clear in article saddam where it said where the use of the language in the event that while an owns or controls present tense  even the debate we have is a grammatical debate on the word meaning of the words in the event and erickson's argument as i understand it is that in the event makes this something that anything can happen at any time in the sex which as i understand the question arises from the first is a situation where erickson currently makes no product that would be subject to the patent but say while and assuming someone else or making an allegation against someone else about certain patterns where erickson has no the pool of liabilities or damages because it's not making a product it would be subject to that pat article seven the most favored nation squads gives erickson the right to ask for a license for those patents so that it may make a product in the future so that's a situation which is not covered by article four but an independent right given by given by the agreement under article seven to erick's that's the first situation and that is it have to be an allegation of infringement against a third against on the third party where eriksson sees that and says i would like a license to that patent so that i can enter this field and that's an independent and i'm very valuable right the second situation in which our interpretation of article does not render article seven of the most favored nation was meaningless is the delta of the difference between the language about which patents are covered article for the damages clause is only patents that we own or control judge in texas i think also the language of the n f l because that covers only patents that were existing at the time is squarely clearly the intent of the parties at the time the parent declaration makes that very very clear and the structure of the agreement makes my view unambiguous there is not something on the other side from ericsson the contradicts the perelman declaration that declaration is clear from personal knowledge and square on the issues and that declaration establishes exactly the point that your honor is raising which is if it if you decide that it is ambiguous at the end and i agree it's horribly written i think individual clauses when there are supplies out of out of context i think those are  think it is possible to determine the meaning of those within the four corners by taking the agreement as a whole and that is the position we take and i believe that to be true i concede of course that it's a pretty written agreement one which you could find to be ambiguous i don't deny that at all but if that path is taken the parole evidence is here it is undisputed and i believe it to be proper for the court not to send it back to consider additional parole evidence because the parties have the opportunity to do that on a test co evidence is in there and it's in the record on appeal it was before him and i'm struck and so certainly in that with all the same for all evidence in both because i remember the isn't it right the florida case that the only thing really based primarily on the fact that part of the four contains language about on or after the effective date for article seven does not have put it putting aside the extrinsic evidence there are two places in you tell me now why i shouldn't construe article three as being a product life as opposed to a pattern that the language of it certainly in the abstract which if it three which is the portion of course there isn't lies upon but new york laws which govern just agreement makes clear you may not do that so that reading is inconsistent with the second half of the same section so i didn't want products are not licensed under the section one of article three and that while in reserves and retains all rights to sue or assert against ellen the suppliers or its affiliate suppliers and then there's a parent article that i think isn't relevant  product license to the person with whom it signed the license but it wants to make clear that person that i'm not giving because it's my place patent gosh why else would it point to that writing in the sentence itself screams you know you have a license but that license is extend to other people to whom you may have acquired the product for i agree in part of this but i believe that the focus on the while and meaning of the part that i agree with you the distinction between the  three is written telling me products section four is written to us ts watch h s p a product why isn't that an important difference that would allow for those control the licensing or even in that case own homes and all of the it might not even be in a let me product of that line element what i heard from might not be in the market at all it just sees that patent being asserted against a product which it would like to make of it so i would three pertains to alamy products which infringe only these four patent right are pertains to you and t at last a she has p a products and therefore covers anything that would fall into a series twenty one to thirty five whereas h s p a is only series twenty five that's true but it doesn't affect the question of the the issue that we were discussing the question of whether the problem is limited to those four paths and my point is of the coverage we look into those four patterns because that's the structure of language of the agreement the fact that article four is gives a broader right to a broader set of patterns which it clearly doesn't even covers after acquired patents which article three does not know but why wouldn't we read that and article three giving a free applying to products other than those ones that would have infringed those four fattened patents and therefore fallen under article for some reason and it creates a limited damages provision as to those other products it does do that but it don't why doesn't that give the presently life to both claim terms as exactly written so i don't have to change their words to find meaning in the overall document i don't think the fact that it's not always  orthotics that we could affirm the texas court one these are a construction basis or a specific case related basis here which is this breach of contract counter claim you have the burden of the that what falls under the company and you didn't argue and you refused to even stipulate that the accused product would is framed for passage but we did not we argue that we actually a two part in missions so that's the firm tibet's now if they had come out to you in a way from that evidence you refused to agree and make an allegation that that was correct and you didn't you have the burden of coming forward in you refuse to allow as part of your burden to that those products did fall within those four patent but the reason that we didn't do with them although we have talked we have acknowledged that in our groups i'm prepared to do that for purposes to raise it raises a concern to the extent this court has a similar concerns were prepared to stipulate for purposes of the appeal that the texas products infringe at least one of the p c r events but we don't believe even even though the jury found that they didn't understand it in order to be able to reach it has to be obvious or bad faith breakage right in order for you to get anything out of the breach the way the contract terms what damages we may get yes record as to what the images may be available to the parties but it's to me that i'm right that that in order to get any damages and has to be an obtuse or bad faith for each given the debate over the analysis and the fact that at least the trial court felt covenant so i don't know how you would say it we could he don't look at it in a vacuum you've got to read it in light of the entire document there is nothing clear eyed oh about this document please don't say it it's well it was respectful i think what i would say in response to that is that when you have t s h s p a the m s l provision is the same thing it provides a license for in that case all products including but not limited to h s u n t s h s p a product so in that respect there is a consistency as to the expen their standpoint we have to remember that while land was a fledgling m p at the time that had a strong demonstrably need to resolve this nicole smith lawsuit because they had just filed a new litigation they hacked it was it is truly important piece of considerations so that's that's their side hold their value birthright for a mess of lawyers they didn't sell their birthright when they signed this agreement didn't sell their birthright at all they so certain rights all of which they were under control they had the to be their counsel this was a very big deal for them but but to the other point which is exactly it's important to the extent that we have this license opportunity it happened because of two things they decided to proposing how there's anything left for section four what what what is what is your argument again on this well next section for at a minimum covers every other series other at the time the agreement was signed what the scope of the what not to finding it was so that the first problem we have but even if we get past that observation there is nothing wrong in the law from a contract need to look at the first but what's not to find you're going too fast for meaning to apply to other patents and article three reasons meaning to apply to those for patent articles that intro introduction article or is entirely consistent with our interpretation of article three because the concept of this focus is on the products the protection is on the products so they could sue on you know hypothetical one one one patent and if it's not a product covered by this that something is not to sue for good if it is covered by meaning and second for our construction clearly has meaning because there are fourteen other series would have meaning only if i cut a portion of what is expressway covered by section four out of section four you want me to cut a donut hole into sections four in order to give it meaning i don't believe you need to your honor i know when they say defeat when you interpret statutes the specific governs over the general section three the way you would have me interpret it is family generalized in section four is the language that would be a different situation but we have a very we have very clear terms then the question comes when we look at where that's like just so i'm referring to that very specific language from that product but for the florida if it's got some down on this point we would we would need to address it there but yes we would need to resolve this issue be those it's an important issue to find are allowed to look at trying to govern the only thing it would have before it unless it chose to florida where there was no summary judgment record on that so one way or the other it would get fully litigated if that's working them if i may on the on the on the most sort of licensee provision there are a couple things i'd like to time i have left i just want to be clear that we believe very strongly that you have clear language in the context of the grammatical rule so when you have the conditions different frames and you say readings in the present tense that means you're talking about the future everybody understands of that a conditional phrase tossed out the future question is whether there's something different well we didn't necessarily talk about the future i mean in the advance could mean if there are patents that are out there that we're not necessarily focusing on  a court before and it has meaning and if you change it somebody is going to say well you must have wanted to change the media so if that language has been interpreted by a court and for as i said it's been defined numerous legal agreement and in two of them they don't dispute that it conveys a future it's only this one that they say doesn't convey the future mobility still can be the acquisition of future knowledge regarding existing it could be well yes it could be a lot of future things but the point is that it does convey the future and one aspect of that if you look at the rest of the m s l provision it is all geared toward the future it talks one of the other condition is that there be an obligation of infringement or infringement something certainly not occurring that day because it was the within the p c r a package themselves that would trigger the m s l provision that moment so you have you have a situation where the other condition clearly thinking about the future it will be in congress to think that one condition is contemplating the future but the other is not when you look at that section for the limitation of damages provision which they cite too as evidence of being both present and future ownership it's clear that the limitation so right so we have three then the event to they agree the two of them refer to the future of the spear in this last one we have to declare it or services with that are knocking them and they put the additional language in that's entirely consistent with how you true that the florida litigation you know basically we can about avoid looking at the covenant not to sue the language and if i thought it would i'm clear and we're going to do what you suggested which is look at the pro level discovery close there they had an opportunity they didn't submit it and i said mr powers is correct the proper role evidence can afford only one answer and then i say this is the answer isn't that end up being the answer only for the darn texans cade's and in florida they go back down and they introduce new prole evidence and so they're not bound by that i think that option been part up to the judge in florida and i think in part that that will result from the rules are going to fight either one of those important aspect of the n f l quality of the florida court disregard of entirely in a plot and and plainly under any analysis anywhere any time adopted a license agreement that could not be comparable or has a meaning that is well understood is defined in sections three and four explicitly actually two and three and two it says explicit that you don't consider apples and bananas because it has to have a volume of sales and those sorts of factors all those doctors are typically what are taken into account in n f l analysis my point is that it's sort of that the issue that you're on a raised undervalue i think of this is an issue there are two races but i think it's in a sense a meaningless question the term is a relaxation has a meaning it doesn't mean any old agreement that you apply there it doesn't mean they get the benefit of any agreement but it doesn't have a defined meaning in the contract you're seeing it happen to find meaning and in the law generally i'm saying section one does not contain a different definition of it but sections two and three do though should be applied to section one and because that's the part of the definition the parties caved t it would be bizarre to say that you get any old agreement at all as your first agreement but then you have to go through these very rigorous requirements for subsequent agree but section two begins with seventeen and begins with the section the statement if a future agreement is for entered into by the party rather than i don't understand your argument because as i understand this section under wine you get the best rates out there regardless of what what the people might be the same or different as and section two gets more specific because now we're going to change the rates that you've got you already got rated and they were the best rates the time but it turns out now you've been undercut we've given rates to somebody else w ho now if we're going to under do the right forgive me before i do a do over we're only going to do that do whatever which makes sense if it turns out you are really comparable to those other people and so i mean that seems to me to be mr geragos will describe that meeting in detail that means exactly the same as what's contained in paragraphs two and three so the party statement of what m s l means is consistent with the general usage of that term it doesn't mean any license agreement so if your honour's example a rate that's not what they're doing if there were a rate out there that's one thing here they're taking a puny canadian company that got portfolio way right way to write one of rights for virtually nothing and they're saying we want hundred million dollars liability for errors if you do the rates they're not asking for that rate they're asking for the lump sum of a very small canadian company which is not comparable in any respect and i think so the way to think about this is there's two limits on the n f l one is you have to be a comparable entity in a comparable and a comparable deal otherwise it's not a most favored licensee status that's not what it is because that would make sections t i don't think you have to consider them because you have to consider undefined if you don't accept that the definitions in two and three apply to it and the definition is one that doesn't mean just any agreement out there it means most favored licencee which is a when you have that kind of right the licensee gets to choose it doesn't need to be defined it's a subjective determination that the less she gets so you get that first agreement and then there is a second bite at the apple and when you look at the two provisions or the three pro if as if what they say is true that the here's to me the biggest problem with this if you accept their argument is true which is section one is merely a right to a license all terms of which need to be  of according to them and so if in that section one provides and you get that whether or not there's an additional agreement so it's not reading it out of the green it's just making it less favorable to you know it's it's well their construction is that that what that means is