products until mariel's patent expired in august two thousand and sixteen starting in two thousand and fourteen surgeons breach that promise to the tune of many billions of dollars we haven't had our day in court on that claim the district court in this case denied us that day in court because a georgia court ruling on mariel's motion for summary judgment in a case against four different companies not just sergeants but four different companies ruled that period one of those four companies a company that acquired sar reached the sergeant's contract this court exercising its did novo review on the question of issue preclusion should reverse the michigan court's judgment it should do this for two reasons each one of which is an independent ground for  reversal st the issue of sergeant's liability for breach of the sergeant's contract was not the issue that was litigated in the ga court the issue that was litigated there was whether all four of the companies suing marial were barred from recovering damages under a different contract the bell sarah agreement because all of them had breached the sergeant's agreement the georgia caught court thought we were wrong it denied a motion for summary judgment and will be appealing that ruling as part of our th circuit appeal later on but we accept that for now explain later on what the what the georgia court got wrong to help the court understand the issues in this case the georgia court in this case held very specifically and no more broadly than was necessary it ago only one of the four parties had not breached the sergeant's agreement and thrust could recover the michigan court in this case however recognizing that specificity and detail in ga opinion nonetheless said that the overall import of that opinion was that all of the plaintiffs actually defendants on a counter claim in that case but all four of the parties had not breached the contract but under this court's decision a law overall important enough ambiguity in the decision means under the case united states versus united technologies which we cited in our briefs and again in our letter to the court yesterday j ambiguity means we win second place and for similar reasons the issue of sargent's breach or not of the sergeant's agreement was not in any way necessary to the judgment in the georgia case the verdict that was issued which was explicitly in favor of peridot in the verdict form itself says the damages awarded to parrot did not in any way depend on the conclusion that sergeant said not breached the sergeant's agreement in fact you can scour the george opinion up and down and you will not find a reference to sergeants not breaching the agreement and that if you say that it was not actually live it being the star disagreement is not actually litigated or necessary to the outcome of the ga court summary judgment order if that's the case what impact if any did it have on that your theory or the impact that it has as a let it case the claim of breach of the bell sarah agreement to go forward to trial and that claim went forward to trial on instructions and author of verdict which awarded damages to perigal and if you look at the george opinion one of the things judge one of the things judge donald that you'll notice is that the court goes into great detail into what we would say is an irrelevancy again i'm not going to challenge that decision here but it goes into great detail about that's appropriate for determining which one of the two contracts should apply and ultimately the more important point for this court is that that emphasis in the trial court in georgia on and parados intent in perry goes acquisition shows that that decision was focused on perigal not on sarge's no my friends have come in with their own twenty gauge a letter bringing in the district courts following way we couldn't appeal until two days ago when the post trial ruling was issued a matter of timing it's strictly a matter of timing thirty we have thirty days and i can promise you there will be noticing in our peal i can confidently tell you there will be no cigar appeal from that one earlier now i want to go back to what i hinted at earlier and explain to you what went wrong in georgia and what will tell the th circuit again i'm not arguing to you yes to just hold on help me as to whether this is really where you're a dick the rubber meets the road just before the pair subheading to the georgia courts says a finding  would therefore undermine your claim in a sense doesn't the whole thing almost turn as to what they did on that it is the it just para go or does it also in com sargent's separately because maybe what you're going to tell us is that the factual outcome is para go can sell under the vel sarah agreement but peridot also wants to sell under the sergeant's name and label and you say that they can't do that because of the sergeant's agreement so when the georgia court says it was contractually prohibited does  cover everything or do we read para go as all it says is that kind of a you're talking at the bottom of page nine of the georgia you know i have it pretty no everything we no longer have everything for roman to govern right before right the right before roman to so might my question to you is not who's right who's wrong but is that really the guts of what we should look at did it george is what it said it necessarily means sargent's as an independent entity they're going to say that it's para go and all of its manifestations only recently that and even those sergeants is an independent company and my and that's right to my answer to you judge boggs to that is that again the tie goes to the right right now i'm not actually one that's even clearer and that's page twenty of the summary judgment order and if you're not if you don't have a paginated portion of the try can help you too much because the the the stamp on the top of the opinion it's ok  you'll also see that page twenty four of that same order as well as no six talking about para go did not breach and period go could quote legally circumvent the sergeant's sale ban with regard judge donald to your questions earlier to me about judicial economy i want to take just a moment to explain to you what's going to happen in the th circuit here and why why we think that will prevail now we think we should prevail here regardless of how that case comes out i want to make absolutely clear but there's also a state issue lurking in the back here so i want to explain since the district court thought we had children likelihood of success on the show and really simple reasons why the district court got the interpretation of these two contracts wrong and that is that th district court decided that one had to trump the other and the district court thought there wasn't any authority out there with regard to how to deal with this peridot argued the nd in time controls but that doesn't really work when you have new parties in different parties simply put these contracts could have been read together and harmoniously so the mistake the district court in georgia made was in reading the bill say were agreement as providing v a with an affirmative right to make these products after the certain period of time expired that's now what we gave them we gave a covenant not to sue for infringement of a single particular patent with regard to a single patent law we didn't say you're free from any other contractual obligations we didn't say we won't sue you want a contract if there is a contract that bars you from doing this we didn't say we won't sue you want another patent if we had another p on selling until the expiration of the patent without because the other one doesn't provide a right but the simple fact is here it all i'll say it again the order in georgia will only repair  rubber hitting the road and i think it's a useful exercise before this court before this panel to spend some time specifically looking at the provisions of the summary judgment ruling in which the court addressed the issue of who it was in fact referring to when it used the term power go in the summary judgment ruling based on two pieces of the summary judgment opinion only footnote six and an incomplete snippet from one additional sentence in the in the opinion my learned counsel has said that it prefers to  only pair or go that we respectfully submit is entirely incorrect and is contradicted by a review of the actual summary judgment opinion itself i'm going to act attempt to do that now mariel repeats a snippet of this footnote five times in its brief the st full sentence from which the it takes the snippet is revealing the sentence reads in foal because the court finds that did not breach the sergeant's agreement it need not decide whether mary waived its rights under the contract by accepting royalty payments from para go under the agreement forgive me please if i'm going to be very focused on the choice of language here but as we've just been discussing this really matters specifically with respect to this opinion i'm going to go through a short exercise here to actually walk the court through what the court was referring to in that footnote when the court is discussing the fact that there were royalty payments from paid marielle two million dollars that was a front payment that was due before the party began selling the product the basis in that opinion for this holding by the georgia court was document one  from the summary judgment in georgia this was the opposition that was filed by the entities to marial summary judgment motion actually just document was unsealed yesterday by the georgia district court by judge jones are two million dollars to mariya the drug to court in its ruling identifies this wire as coming from her oh so my point is simple which is the court in georgia knowing and understanding that the actual wire came from sergeants is referring to the party that sent the wire as per go i submit respectfully to this panel that what the court is doing there is evidence seem to the panel how the court is using the para go which it uses throughout the course of the opinion i'm going to continue with two more examples please because i again i do believe judge box this is where the rubber hits the road and it's actually judge bards in the portion of the opinion just leading up to the section that you were talking about you were addressing sarah go reentered the flea and tick medicine marketplace and december th two thousand and fourteen it sued mary out for breach of the bill sarah agreement in the district of nebraska once again and if i may and forgive me if i'm if i'm gilding the lily here but i'm going to do one more example because again i think this is critical i think we're really judge bogs you put your finger on what the issue is here which is when the word per think submit to your honor's once again your scene in understanding to whom judge jones is referring to when he uses the nomination para go he's referring to all four entities marielle did not sue company along marielle sued the entities together so the shorthand that's being used by judge jones throughout this summary judgement opinion is to actually address specifically company sergeants well sarah and fido farm were in breach of i'm going to leave that examination of the actual language that's found in the summary judgment order and i'm going to turn to the nd of two the only two bases upon which my learned counsel has advanced that what should be distilled from the summary judgment order is that the court  referring to para go company when it used the word para go in the actual text of the order we've discussed the the st of those two and that's footnote six which is repeated ad nauseum throughout the br then the only other basis that is set forward is a snippet from the dread order followed by claim that the court ruled with regard to peridot and not to sergeants marielle repeats this throughout its brief and says quote the ga court quote held but there was a further opening for para go to legally circumvent the sergeant's agreement sales ban this is critical the pill sentence including sergeants the opening for go to legally circumvent the sergeant's sales ban so again what is happening here is that throughout and this is this is the fundamental flaw in the argument that's advance by mary out on this appeal they just want you to simply jump right over and take them at their word that everything in the opinion is only directed to perry go company respectfully that's not the case and in fact when the language is parsed i think it will be abundantly clear to this court that in fact it's not limited to perigal company but it applies to all four entities my learned counsel mentioned the submission that we made two days ago under rule twenty eight dollars j which was the ruling that we've now submitted to the court on the j a n o v by judge jones which issued on tuesday of this week  i think it's i direct the court's attention to the language that's in that j o n a b and i specifically direct the court to two different sections of the j o b the st i submit that the denial order should put an end to the misuse of the quote legally circumvent language meaning that nd set of language that we just talked about addressing the same exact passage from the druid order judge jones two days ago rebut the terms of  sara agreement trump the sergeant's agreement which according to judge jones quote created the opening for para go and its affiliates to legally circumvent the sergeant sergeant agreed sergeant agreements sales pitch please recall that what my learned counsel has been relying upon was to say it only said there that it was para go and because that language only had para go in it it must only relate to para go company judge jones just put an end to that judge jones just told you exactly what that section applies to and applies to both peridot company and its affiliates which includes sargent's sec it the georgia corps provided its own description of the scope of the ga order the court itself identified the georgia order as quote finding that plaintiffs did not breach the sergeant's agreement the plaintiffs that judge jones is referring to there are four different entities perigal company sergeants bill sarah and fido farm there is no such ruling in the judges in the opinion in the summary judgment context we're now on the j n o v denial ruling that limits this only to para go company respectfully once this court looks at this issue of and examine the issue of to whom judge jones was properly referring to when he used the designation para go throughout his opinion throughout his entire the number of the reported opinions in this litigation of which there are many you're going to find that the sergeant's agreement was at issue and was adjudicated in georgia and furthermore that it was necessary to the rule of the reach of the sergeant's reman includes by sark that is  favorable but less favorable opinion on their side would perrigo can sell anything it wants as the owner of bill sarah you just can't do it as the owner of sargent's and i don't know what whether this is a real trademark kind of an issue at bottom i mean i'm not quite sure that if you win the st part what's really at issue is it using sergeant's name and goodwill to sell the same  thing so actually what's at issue what's what's at issue away is a great question of course judge box and this is really what's in front of the th circuit this is not frankly what was in front of the western district of michigan and it's not what's in front of this court today you know which is the issue of you know collateral sample apply you know was the issue of the sergeant the breach of the sergeant's agreement adjudicated was it necessary we submit that was what is happening in georgia and so now we know that they're going to go to the th circuit god  bless the what's happening in georgia is that there's a situation in which there were there were two separate sets of rights there were there plans and so it's a bit late to our view is it possible maybe i'm trying duck it that the th circuit could say you're right that you can sell under sara but they're right that you can't sell and are sergeants and that would solve our problem wouldn't it if they were to go that  something to start very quickly judge barnes with the facts they are selling under the sergeant's label they're selling under sargent's brand they're selling under sargent's e p a registration which is essential to get these parra products on the market that's a sideshow to the issues here but i want to make sure the record is clear on that and you're right if the th circuit were to split the baby as it were in that way then it would solve your problems here now to the case that you have my friend came up here and said well look at these things from the summary judgment or where absolutely they were different parties and if i if i say i'm going to sue boggs donald and batchelder in a complaint and then i say i sue judge boggs that's true that is a true statement is not the complete statement but it's a true statement now that that's consistent with what the judge was doing here which was focusing on pair or go look at all the other references my friend didn't mention to you the very next page after he point after he uses the it language from judge between and among the parties in this opinion it wasn't shorthand at all this was an opinion that was focused on parrot i've already answered the question about the summary judgment sorry of the j m l ruling for a couple of days working order did not put an end to this in fact all it did is create the ambiguity that means that we win this case thank you for your time thank you very much the matter is submitted and we will give you an order and course