caricature pharmaceuticals iraq are the specifics of what was markup financial we can address and if you are instructing us to go back and and revisit that we will what we were trying to do actually and suggesting that we are considering issues show cause order as to why you should be sanctioned or marking things as confidential which can properly be mark it's difficult to address the specifics without the specific points but we were trying to do was to keep take a confidential the business issues that would have to do with case citations well only to the extent that they were i suppose in support of the particular business point that we were making your arm but i work out of the rules allow you to mark that for example on page twenty five of the blue we were we were trying to protect from open disclosure but judge i'd be more than happy to go back and and revisit the confidentiality does well i think the first thing i want to do is within relates to other markings that have and this applies to both parties you can remark all parts of this agreement it's confidential i don't see how it can possibly have an argument or write an opinion about this case if these  they're propriety is this the fact of this agreement in the language of the agreements that proprietary well the issue is how the various generic manufacturers are relating to each other in a in a very competitive market among them and so i think for example the settlement agreements that may have been reached between other generic manufacturers other than my client's son we've never seen and so closing any portion of the settlement agreement according to our our opponent here and we don't disagree would be confidential just why we haven't seen in fact we've asked for them and they haven't been given to a woman talking about the other agreements we're talking  about whether there's a court decision here where there's an injunction and apparently there was an injunction yes or no questions whether was a fourth decision and you know that's that's the heart of this case how can we how can we have an organ knock me right decision without talking about the language of the of the agreements that the two of you entered into the best i can do here your honor is to tell you that we go back and revise what we've submitted to take all that into account and i understand the instruction that your you are telling us to respond which shows shall cause over which of course we will do well that doesn't show course or is not going to cover the parts of the agreement that were more confidential to show of that's not a violation of the rules but it also but it makes it impossible for us to consider this case if you the two of you insist on marking those parts of the agreement as confidential  can i ask the court for  we'll just remove the confidentiality designations with respect to the summit agreement license agreement all of it and request that the court consider confidentiality issues as we move forward but we're not going to doesn't have any of are one or two documents that we want to bring court's attention to which we think focus these issues first an injunction was issued by the district court yes this case come to whether scuse me again my matter of my voice is kind of shaky but does this case come down to whether a consent judgment is a decision no i think in part the case can be decided on whether a consent judgment is a decision and that would dispose of the case on its own but it doesn't come down to that because there are profits or your shoes having to do with due process before you get to those contract construction issues that is but if i were to could say a consent judgment is not a decision  improper it would make the injunction improper because it would have been issued a an understanding of a consent order that was incorrect and so there would be no basis for the injunction to issue that's the way we understand why did we even reach that issue why do we have to reach an issue i thought your first argument would be there was no consent here so the court couldn't have acted on something that wasn't consensual exactly call that a consent would that is that your first start i mean that's why i was a little confused by the emphasis on due process due process just means you go back and have a hearing the judge john some sort of evidentiary issue on and on an agreement that both sides are saying is on ambiguous so i guess the subject of dispute so that's not a due process issue that's just legal issues great and why is that different from the contract issue because i thought that under our decision in corporate if you to agreed to an go back and had material terms to a contract with that have not been consented to that's why i'm asking whether it's the same issue as to what the agreement for ought i mean if you consented to the agreement then korvin says the wind up collapsing into the same issue when read that way i agree that you also agree if your license agreement didn't turn on whether the decision was issued in joining the other generics if it didn't turn  as a matter of contract law that may have been as a matter of adequate hearing perhaps not with that's not what happened here but i would still say that if there was a contest about what was and wasn't in the license agreement and what van was in the consent order that was entered although it was not consented to there should have been a hearing to find out and i think judge moore is asked you if there wasn't any dispute about it if is if it's that consent injunction a consent judgment and and that was it and you'd lose right because that would have been what you agreed to if if yes if the court had entered what we agreed to in the license agreement then there wouldn't have been a need for there wouldn't been a contest there would have been a need for a hearing here there was a contest there was a dispute as to what the consent order that was agreed upon said well why do you need a hearing i mean your position is the contest the language is on a big   s the other side's position is the line which is an ambiguous we had a p r contract dispute as a matter of law the district court to decide that without an evidentiary hearing no no i believe that it will be if a consent judgment if a consent order is feet actually takes the position that this language is ambiguous in fact in the second paragraph with that letter counsel for sanofi says plaintiff version of the consent judgment that is nothing  was a part of the some agreement but their new unilaterally proposed were what if what if the judge had put your consent the consent of the original consent judgment the original agreement into this order where would we be that i mean that was what you wanted him to do or if the judge should hit enter the consent judgment that we had agreed upon the met would have meant there was a different set of facts in play that would have meant that there were decisions in joining the other generic manufacturers when we'd still be in the same place no fighting over what decision mean now i think if i understand your honour's question if the court yet entered our order and the facts support it that is if there had been decisions in joining then we wouldn't be here if there the court entered that order but there were not decisions in joining that is be in this would wouldn't we you all still be arguing about what it decision means if the facts were the same and the order had been enter that as if there had never been decisions in joining but there were among the other generics agreements consent agreements and the order that was exhibit a to a some agreement was entered we would still be on appeal because our position would be that was wrongfully entered not for the same reasons although the be the same if there was never a hearing but our position would be that on those facts in the absence of a decision by a court then there the entry of there would be inappropriate and to get to your honor's point mattering in the alternative that yes if it's and i don't hear yes if it's ambiguous them we're entitled to a hearing what happened here was a step further than that sanofi proposed and ambiguity propose resolution of an ambiguity the court agreed with it and there was never a hearing on any of that what what about what seems to me most interesting here is what's it to and not which is the original  and somehow that language got changed from the time the original term sheet into the settlement agreement and license agree i agree entirely i think that is an important point i think that the the what's contemplated in the letter of intent it says quoting however in the event a court enters a final court decision that seems to me to inform since there were decision is used both places that seems to me to inform the use of the word decision in the consent order that was ultimately attached as exhibit a to the settlement agreement unfortunately the court is now raising issues of intent meaning that were never allowed to be fleshed out discover the subject of evidentiary hearing the court simply determined what all of that meant because no fee stepped up and said there's an ambiguity here we need to clarify and there i was the word that it's used so we don't so there's nothing thousand and ten and that request for an evidentiary hearing which sun repeated on april twenty second the day that the order from the district court issued but before some live can i just as well when you say a final court decision which is how you're asking us to construe this agreement you're talking about a final court decision finding valid enforceable and infringed by the launch is that what you're saying no that's from the letter bustling from the letter of intent ok so what is the final court decision doing what a decision actually the language from the consent order that's attached to the contract that's part of the contract says decision in joining and what if what if i mean there are number of generics on the other side here this license agreement ever from you no get off no i think would would your honor what you're asking is did some agree to be subject to whatever business arrangement the other generics and sanofi ultimately agreed to once the other generics were selling at risk if they decided to stop selling at risk at some point down the road because they had made their own business agreement with sanofi would sunbed and have to stop and the answer is no that wasn't the agreement but what i'm asking they'd be stuck with you on the market for the whole duration because they would never it would be an impossibility for there to be a court decision in joining some party who is no longer in business that hypothetical is i think exactly right and should have been contemplated and perhaps was contemplated by sanofi but it wasn't the contract that son entered into with sanofi that's not what the contract said your honor i'm into my rebuttal time if i think we have one more question  and that reference is the license agreement which is also kept for eight hundred sixteen is the agreement that's not the consent order that you proposed in that you would have been happy with does not contain this language about decision it refers to the licensing the green yes and you're saying by its reference to the license agreement it's incorporating the terms of the license agreement but i just want to be  would have enjoying the sun is dealing with whether the condition with respect to the consolidated injunction was satisfied right it's dealing only this is only talking about joining  a core i'd like to start with address where we sort of end up to make sure everyone is clear i believe sun said this morning that the consent order was ambiguous or not in the us it's unclear in their brief i don't think they said anything was not and was was not in the us while there were time of the consent order i think we're talking about licensing right well that's exactly right your honor that was my point which is that the consent order does not have the words decision in joining they've never argued that the consent order was ambiguous or not an order refers over to the license exactly right the license agreement is the issue here and in that license agreement not a single term was changed well jr there was a change a final court decision within the minimum term sheet if the term sheet i guess some would be incorrect if it's if the term she was in the license but it's not that's limited language was taken out and the factual license agreement just says decision in joining it doesn't make it so narrowly saying why don't we have a situation of ambiguity where there's been a change from the term sheet language to the to the final agreement language and the question is did they mean  or different whitewash and we here are all evidence as to what the negotiations will they haven't put any evidence in that there was some sort of ambiguity based on the term sheet into the final license agreement so the court was very slow and they weren't granted discovery into what you might that would be they didn't put any evidence in as to their own well all they did i mean they have their own way this is they could have put in a declaration and they didn't ask for discovery don't talk i'm sorry that may be but  why aren't they entitled to find out whether you have a document that says well we discussed this during the negotiations and the parties agreed that final court decision and decision in the final agreement mean the same thing could find something like that that be pretty significant not necessarily decision it has a car very clear meaning and it means a as they say decision in joining means injunction or consent orders are injunction orders so they seem to say that th well i think what that is directed to isn't that the settlement agreement is is ambiguous what it's directed to is what our son's obligations under the settlement under that settlement agreement and what we were meant tending to say is that given the known undisputed facts namely that all the other generics were coming off the market in june thirtieth that's the consent judgment that we prefer purported that we put in which has is different from the consent judgment that they agreed to exactly it's different because it takes into account the facts as they existed in april  thousand and ten and you're on it you're correct you're entirely correct we'd be here today aren't having the same discussion about what does section three point five mean even if someone's consent order was a bantered yeah but the problem for you are is that you resisted the court doing that so we're looking at something different we're looking at the court entering consent judgment for a document that they didn't agree to that was changed based on your representation that it's necessary to clarify right well language of the license agreement talking about the decision an injunction wasn't clear right now your honor we thought it was crystal clear and we set out in chapter and verse exactly why we thought it was clearly what you thought the original judgment was clear and then why didn't you agree with some that that's why out of the district court ought to enter i mean you want you were willing to have the district court enter and the original consent or you your honor the then the court could have entered in the original contingent to do object to that did you fight that to to resist that did you offer up and argue that you want to put this modified consent judgment and and not the originally agreed to consent judgment we said just based on the facts of time we did so there's presumably something different between the original consent judgment and the one that the court ultimately entered if they were identical then obviously you wouldn't have the system at the entry of the original judgment right right and the difference was at the time that the that the original consent order was was was entered are to me that was drafted there were no generics on the market and the difference is that and as of august two thousand and nine generics went on the market and we thought that it was appropriate to have the core exercise its inherent authority to we would have objected to the fall if three months before march of two thousand and six the court entered the can the sun's consent or order we would have on march twenty sixth sent in the same letter the letter would have changed we want to send your honor the earlier consent or order at that time for hypotheticals hypothetically there was the other defendants have not agreed to come up mark and they've now agreed to be enjoined and so now that you have all these injunctions and in front of your honor we think that was written for it to decide that there is no difference between what is what is the extent there and already that the district court judge will in corvet this course specifically said that the district court had inherited thore to fill in details of the no longer a consent judgment well your honor i think what we were doing we were asking the court to interpret the why since based on undisputed facts if they were the case then you should why it baffles me if that if your argument were true why right you are the reason we did that is because of the exception to if they're not authorized if they're authorized by the license agreement it could be practicing because you wanted to take away the question of whether or not this was a was not a decision when there's a convention you want as that's what you wanted to do not what you achieved with the reason we sent the letter in his cosign maybe had we had asked son several times are you going to come off the market on june thirtieth they never said they're going to comply with the lace and they never and they never said they never said what that meant so we had uncertainty so we needed to go to the district court to get certainty well that you know if you have uncertainty that you've answered judge dyke's original question which was there was clearly ambiguity in the absence of any ambiguity then you wouldn't be taking the position that there's uncertainty at the time of sending the letter so i'm never told us what their interpretation of a license was so we wanted all of those issues to be brought forward a little something needs to be interpreted and in the absence of an interpretation it's uncertain is not the pure and it basically would have been his decision that the that the license as he interpreted it was was correct based on our interpretation and that that sign needed to come off the market on june thirtieth two thousand and ten i don't think it needed the word consent  construction of the original consent agreement he could have taken the word consent out and put in the injunction based on the original license terms and we've never argued that they didn't have the right to appeal here we've never made that argument well it doesn't say that they never made it excuse me well it's in the consent agreement it is in the consent agreement but we've never said or a should violate that they should do what they're clearly the clue from doing under the clear language of the consent agreement and try to  ok because you're telling us you wouldn't oppose it when we haven't opposed it so i mean the fact that it's that language remained in the version the judge has honored i don't think is is i think of anything and most it's harmless air justice i know actually wrote a decision in this case and he said i agreed with the language of three point five it's clear that the key language is injunctions entered all the questions whether it was wrong your honor that's correct that's the question is what is wrong and let me ask you questions suppose that the defendants in the consolidated case fact that's part of what the draft in general two thousand and ten was designed to address was a drive to get more flexibility that whatever the court entered may not have an injunction in if you go and you look why would the tories want to distinguish answer my question because my question is the sun why would the parties want to distinguish between a situation in which the consolidated defendants by agreement agreed to stop selling and you agree that under those circumstances one could continue in a situation in which there was such an agreement which then resulted in the consent judgment an injunction in in which event you contend the sun can't continue why would the parties want to distinguish between those two situations so that by putting an injunction into the decision it would be on the public record and son would know that all of the defendants in fact were in joint as of that day as opposed to having to go back and gifts on all the agreements and have them come back and say well we don't agree there's some cause in here that lets them go on in some other hypothetical or some other situation it's much clearer to have all the all the defendants being joined on a particular day in the consent judgment because then that's on the public record everybody knows where they stand we don't get in any arguments about whether this other license agreement is different in that way since agreement so that was the intention of three point five was that it would be a public record that all the defendants were enjoying that and that was the purpose of putting it in that way you could have done it the other way we considered doing it the other way that's what the deck that's what the january two thousand and ten modification did it expanded decision even beyond a joke and it simply says that if the court enters an order of the defendants agree to come up that would be enough pursuant to the order even if it's not in even if the order doesn't have an injunction but but at the end of the day the original version of the license didn't have that language and it had the requirement was that there be an injunction and it makes a cleaner if there was an injunction ultimately all the defendant teresa consent judgment because i understand you know from the original sheet on page eighty nine why they would agree to be enjoying it and pull off the market if there's a final court decision by some someone on the merits but i don't understand what do they get out of  agreement if they're reading to be in joint i just i don't see there's a good bargain for them but maybe i'm wrong i'm missing something and well i think we have to take into account both sides of the bargain here the bargain with all the defendants was essentially the same either everybody was in the market or none of them were in the market not on that's not true because you just agreed that if the consolidated by agreement without an injunction had agreed x of the market sun would still be able to sell out and so well we would that's the way these are designed if it's not just us it's the generics too they all said if if one generics on the market we all have to be on the market otherwise there is no deal counsel i understand you've made your point well why would have only entered into an agreement like the one you're proposing the agreement should be construed as but i likewise understand sun's argument why it would never have entered into an agreement where the other generics voluntarily cut off only if they were forced off by a court decision on the merits and so the problem is why doesn't that exactly equal the kind of the of the beauty because i can see both sides you never did answer my question and give me any reason why son would have been one way or another they could not read and they're not on the market that the point of the point is in terms of this market it would not have an effect of and the reason is is because they would be in the same they're going to be in the same place on genuine august two thousand my view your honor the reality here is that what you have is a situation where you have to look at both sides you can't just say well with this be a good deal for some it might be a good deal for some but would never agree to it and would never agree with because we had to have the protection we talked about shows that the parties agreed to have a broader definition of the city and why isn't the right inference from the change of the language that the decision no longer had to be final that is not subject to appeal but it still had the  finding that the patent is valid in forcible inference so it actually says that there had to be of that particular type of finding before that the sun would agree to be enjoined so it's actually fairly narrow in our view and and if anything the term she checked the change in the term sheet of any think shows that what was what the intent of the parties is a broader definition of this is an enjoy not decision on the merits which which in their brief they say a lot about collateral stop about that issue but a should have been entered should we order the lower court today kate the existing injunction while they make that determination absolutely not we would ask that you maintain the status quo given the severity here as your honor knows we back in june of tomorrow if you were to instruct the district court to vacate the judgment we asked if you'd go that path which we don't think you should if you go that path that you specifically instructed that the district court to maintain the injunction and to hold expedited proceedings to resolve longer an injunction in place then all the other defendants are going to say well sun's not enjoying i guess they won't have got to that would be some would still have to watch arguably but they wouldn't be precluded from watching and so the other defense are likely to argue that well we can launch since there's no and jump since son is not enjoying this i thought i saw in one of the agreements somewhere maybe with the other party that if something doesn't happen by march two thousand two thousand and eleven right then everything kind of is blown  wouldn't say mu it would be originally that was partially contemplated because we didn't know we thought it originally was under the original consent order we were going to have to go back to judge because i don't get clarity on under the license we don't know how long that would take and all the party said well if it takes until march two thousand and eleven then all these agreements are no longer in effect and everyone goes back to simply the square one which means we're back at the district court litigating the substantive issues potentially so so  arguably and i haven't gone back and looked at that particular question judge pro process but if this court were to vacate the judgement and there wasn't a new and if there was an undue judgment entered by march two thousand and eleven it arguably could make this case dark and if we did vacate there's no final judgement on this whole thing i mean even if we kept it in place that sent it back to the district court or here and then it comes back to us there's no final decision by twenty  correct there's still be no final decision i'm not sure the language i'm not i'd have to look at that specific line of language but but you're right there if there was a provision because we were concerned we didn't know how long it would take to find out whether a court would enforce the license as we've suspected it should and there is a provision in the license agreement and there are in but in the consent judgements with the other defendants that talk about removing the injunctions against those defendants as a march two thousand and eleven and it which time all parties will be able to unfortunately i'm not able to i just don't have that in mind you know why don't you both give us a letter not to exceed two pages addressing that issue as to what the significance of the march twenty eleven date is and if there's no decision on this by that point you want to give us that in in a week but your honor a couple of quick points other than responding to any additional questions you may have most of what mr condi just sat was essentially a listening testimony with respect to what the meaning of all of this was what the meaning of the agreements is what the meaning of the negotiations had been it was testimony that should have been elicited from real witnesses at the district court level to determine what should have been done with these contract so what happened and i know we're going over some of that but what happens we send this back to the district court houses to process the hearing and he concludes that the other side is right that the term decision doesn't mean what you say so where does that leave you then you run up here an appeal last i don't know it would depend on the record and depend on what we were determine if there were any errors made and what the district court did but what i can tell you straight away is that that absolutely has to happen in our view and that in the interim there is no basis for an injunction to continue to pending mr conti said that yes the injunction should continue to pass and in order to preserve the status quo but this the injunction is in itself a disturbance of the status quo injunction was supposed to preserve the status quo in the first instance that's the purpose of of an injunction and it didn't happen here disturb the status quo a new order was entered by consent you were on the market befor the basis of leaders and begin the settlement agreement first there were many other bases upon which we were asking for sole and secondly i don't know that the presence of ambiguity without evidence our view is that the injunction was not properly issued and so if the lower court opinion is reversed the order has to be vacated now whether the district court very quickly reconvenes and decide for itself whether to reissue an