should be hurt by the appleby's unilateral decision not to come we didn't ask that they not come it's not part of the agreement they have every right to be here i think the reason why their act here i can't talk for them but you have to look at the district court's decision below the district court came up with new law that nobody argued before it and has no basis in this court precedent missoni let me ask you a question about th discuss some fundamental issues and the question i have is does the do the agreement has a royalty obligation and the question is does that royalty obligat you look at this feud resolution procedures and section eight you'll see that the parties contemplate there is going to be continuing disputes between the parties it in those continuing disputes between the parties the lydy can be an of life and say that there's two things first of all these few resolution procedures themselves show that that threat is imminent that the parties contemplate that there will be continuing to do so they would not have devoted fourth pages t what their plans are either i would submit that if they were here today they could answer questions like what are your plans because they've come out with a new product every year for the past without any answers the question is if they're not here and if you don't know of any  then how can we assume this is present concludes i would say again that i think the agreement itself shows that there's the parties contemplate that there will be a controversy that they've come out with new products in the last two years that they have create a present controversy i would submit that they have the continuing interest in validity so they can know what to do we clearly have an interest in the validity of the patent which are not an advisory i would submit that it's not an advisory opinion because of the fact that they routinely offer new printers and they have an interest and knowing what to do with their printers and infringement or sue there may be some risks perceived that that obviously we didn't get resolved but if you talk about well you know at some future time they may design some future printer we that might be the subject of some future debate that's that's that would be an advisory opinion i agree but i'm not that speculative the parties have been in that a cage for the past ten years and they come out with a new printer every year addition we have a situation where there is an agreement between the parties where they contemplate future disagreement and they have a procedure for setting it up and so i would say that that helps you with the immediacy and the again i only get back to to the question i asked originally with respect to existing products for which there is an ongoing royalty obligation that realize that i'm trying to be careful as well with the because you're asking us to rule on the validity so mike what i'm what i'm getting at is is that really the case or controversy given this the fact that this is seven years and it seems to me that what you're saying is that under this agreement whether we rule one way or the other doesn't make a difference with respect to royalties they will continue with respect to exist reason why is because it is a reasonable proxy for the value of the reason why is this it in relation to that total amount the reason why it's a reasonable not all of the disputes globally and or in the us and so in relation to all of that it's a much more reasonable proxy compared the whole as instead of what you had an offer like you let me read from judge rice's opinion i said at the not having them here if they were here you wouldn't feel the way you do now that's true if you were here if they were here they could answer the question so their product so we have a market so we have the hidden in the market as ha has given the same indication that they don't think that it's important enough to be here you've said it low enough well i'm i'm concerned they are benefiting from their failure to att should dismiss cases that are imposed but in those circumstances there are exceptional circumstances where the court could vacate the decision below and that would be in a situation where the unilateral action of the it of teles for example where they would be right i it was not or ten for them not to be here we don't have any provision in agreement that they shouldn't be here and again we think they have a continued interest i can tell you function format they use functional language and he became very confused about this court case law and said that in that situation when you're functional language you must disclose the corresponding algorithm in the claim itself where in other words you everybody is the relief and if in fact there is no controversy suitable for the pill what happens to that case is that decision addition in our letter we ask the court i've considered using rule sixty in direct directing the case back to the district court so they could consider artist question vacate that decision  i i notice that the agreement was executed prior to the time you filed your blue brief in this case that's correct why wasn't there why dozens of more involved in this issue and realized the issue when i read the all flex case when getting ready for argument because it seems that they did that at least there should have been some recognition of an obligation to notify the court that there's an issue here we could have just if it had there been no decision in all quacks and had you not flagged this discord have just slipped right under the radar nobody would would have been the wiser i apologize lateness in notifying you i'm glad that we notified you know and that's why we're glad we did it which would have done it earlier we we we really were of the belief that we had jurisdiction and that both parties had an interest and we thought our adversaries going to participate in the here we want the opportunity to challenge it and we were of the view and maintains the belief that they have an interest in having this patent declared invalid the other side does they maintain that interest so that they can have fewer it is with respect to just eat that are expected between the parties