were ready to hear from you there i think there's a problem with that assumption and that is right subway since doesn't come from section two point one section two point one is the grand total license of the license to practice in casting section two point one mentions that there is also a right to print some licenses and the right to grant some licenses found in section two point six and i said then correct and section two point six says something different you know they have the right direction it doesn't say can if you thought blatant is its affiliate it just says sub licenses period section two point one isn't the subway syncing it's the grant of the initial license so what's the problem i mean you know of all sorts of references to sub licenses and this agreement i think to review that is being confined to a pillion says is a pretty weak argument i mean why don't you assume for the moment that the have the right to generally sublicense and if i understand it correctly you're saying but it didn't have a right to do so once the suit was commands b sense or cross license of any m f coakley or technology that results from a settlement or judgement is subject to section two point six so i think licensing and subway syncing are different depending on whether they're in the context of litigation that is an infringement or whether they're in the context of just some of the licensing to an affiliate look at it it sounds to me there's no all the intention of the party and it would seem to me that what that contract manages something to be resolved between a m f and a d d is a change dispute has there been contract there is the grinder declaration in the record and  are confronted with today writer apparently the five thirty thirty three to be an excerpt from deposition the elephant anything about how he understood the agreement i think other than in the declaration there's no real explanation of what he thought that the agreement was but it was but as i said maybe he had knowledge that a missile you need therapy in the declaration about the did each of them understand the agreement did well there's there's no record of that your honor that that's what i'm trying to get are my understanding is we have no evidence of testimony declaration this deposition or anything else of what any negotiator of the agreement but he was signing on right like that i think that's correct and there may be testimony in the record of mr hanken as to his belief because he was involved in  the license agreement that's not cited in the brief by either side but the agreement we we should be able to look at the agreement and divine the intent of the parties and here you  outside for interpretation that it will be declined to sue for whatever reason i assume because of its current affiliation or ownership and that the pens but probably knowledge because there are others who could also sue the same defendant they send their own divided interest in the property so it seems to me is it whether it's a simpler more difficult question i that didn't join in all the case law that i've seen other than perhaps the aspects case it was always the licensee suing and then the question is were all substantial rights and i would agree with your honor that if a b had brought this lawsuit then the question of whether m f should have been joint would be raised but i don't think that the question has been raised does a b royalty man that novel substantial rights and transfer i think of the big difference between abbott in this case is the amount of control they pass to be the first less than one percent of the total of the infringing sales and that's considerably different than the provision in this agreement which says that it is explicitly authorised to settle for no money so i think they grant for no license they can't print for no money but for example what could happen would be a license for going forward and all the past infringement is essentially settled for no money there only to protect the world to story which i think puts it in the group vs west coast situation where all they're doing is ensuring the compensation for the agreement not into the speedplay situation where  granted that's an absurd argument why i think it has to be looked at in the context of a man owning a significant share of a big one the rarities in this license and we're going to have to do because because what is in advance by the next interest is in an absent maybe and maybe not we would we can't make assumptions of based on ownership there's nothing in the record about the extent of control back and forth between you two hundred because of cross ownership we've got an agreement and the predecessor agreement and that's essentially all we have in front of that's all the judge king relying on that's correct and so if we interpret it your way that yes a that we did you seek discovery from the third party any of the documents relating to the negotiation and the agreement yes we did all those documents interpretation the agreement when you didn't put any such evidence before the court and i'm not complaining about lack of parole didn't you just noting that i don't know what that evidence is if indeed the case that judge king i think that that is part of what he said yes if he's wrong on that we have to reverse no i don't believe so how could we are firm if he's wrong on that there there are two reasons first of all i believe said they can settle for a judgement without any money so they at least give them the control to wipe out like a bill that you for past years in some circumstances but maybe not in all  i can't think of any circumstances with where the imprints clear a problem it's still the agreement specifically authorizes them to set up without any damages so i think that even where the infringement is clear they are authorized to didn't that cause be read as the word where appropriate appear sheriff you know money where appropriate but not necessarily where it's totally inappropriate like in the case of absolute specifically to them what they want the government mean if it doesn't put some common sense limits on what a b can do then how does that have any effect here at all well i think it is it puts commonsense limits in that if it's if it's not something that has been explicitly agreed to then there is this obligation of good faith to live up to the deal that you negotiated but here the deal that they negotiated gives them the power to settle any litigation for them but we're talking about how we inter read of power and we're think hefting at least i'm suggesting that those words those grand have to be interpreted in light of the covenant and you seem to be thing no forget the cup it ha ten gaps and in agreement you had to be fair to your partner whether there was a specific provision or not you know that the kid said i'm sorry i don't have the name of here the case is that you have to be fair to the what you in the event that a p elected not to sue itself there's a big difference between something reverting on some condition and something being retained by the patent owner in the first place it may have been a semant on our part but it is retained only under certain circumstances that give a b control over when the circumstances in order to complete control the symptoms but here there is no doubt that a b elected isn't a right they can't blow it's it's a question of when they transferred all substantial rights and i'm hearing it even i think it minutely at this point they transferred the first rate to sue secondary right to sue the right after an election to sue for patent infringement so that's that's my first point is my judge came didn't have the benefit of that case right because he did a mouth where it came out after we had file and then eleven point two point two conditions their right to settle the case and there it is after consultation with a b a n n a b is authorized to enter into the sentence so not only do we to totally ignore the council the fact that they have to be compared with the kind of hollow well it's not it's i think it's more than just consultation your honor because it says they can enter into agreements without the prior written approval of am doesn't say that they can they don't have to have approval at all it says you have to consult with us although we don't have to give you prior written approval so you have to consult with us and consider our views it's much like the clause in the metrics case in which the views of harvard had to be considered  and then i think the third thing with the control there there's a lot of confusion here between the right of control the first right of control of litigation the right to sub license and they occur at different times and so if you look at section two point six which grants the right to sub license that right is only if there's no lawsuit if there's a lawsuit that's been filed