glandular for the record the university of california irvine is on its way to the college baseball world series we're very pleased about that we didn't have a football team so we had to do our best i would wish them well but they're playing my alma mater in the first ahead also have a little hockey came in orange county going there satisfied here so i'm happy to meet that standard if you look at the actual factual allegations at paragraphs and these are all at  answer that are set forth that three one seven six three three one eight two it clarifies precisely how it did that and what it states is that clear logics business model response to constitute a  an accurate statement not only because well it was that it did have a faster and more accurate statement which is the false statement because it was legally not empowered to make that statement according to out here because it's a billet he to sell those products to market them was premised on its violation of the license agreement so it isn't for you don't have the right to tell the truth property where's the falsity you don't think differently empowered to offer in other words you could have a false statement of law as well as fact and that's a distinction if you look at all the j letters and they're very important they have no letters offering any stayed in connection with that that they had a faster and cheaper good was false and that's what caused them injury and there are half a dozen cases where in other words what the carriers want to say is unless it's a technically false statement about good doing certain things that's all you get that's all that is possible but you can also have a statement that you're not in a legal position to make a statement and there's half a dozen cases which have dealt with just purely  misstatements of legal rights one of them is the land decision and the land decision basically talked about the fact that the patent owner goes to a customer of the alleged infringer instead if you sell if you buy from the infringer i going to sue you too and so what the implicit inferred statement was is that the in french or did not have a right to sell and why because he was a thief he was a patent in french or so the same functions and that that statement was a misappropriation because they didn't have the right to sell that product so there was both the technical statement understood in an inferred way to be a misstatement of legal right in the western syndication case also before this court where judge hawkins sat on the panel opposed to all seven the statement that the apollo show would not be distributed for the oath for broadcast season was understood the cows doubt upon the existence of the polish property in intangible things it called into question the trademark rights the legal rights that they have for it is there is an created coverage for disparagement in the that they were false statements that a company had f d a approval that's a legal right a legal position that they have now the words there's nothing about the false statement that requires that only it be about a technical capacity if that technical capacity is one the party doesn't legal leave his desk there can be a false statement that's disparaging and if you look carefully at paragraph seventy one of the affirmative defense again you get clarity about what it is that we were allegedly telling customers that out here was upset of out and we told and we are basic obligation was that we had an alternative method for creating these programmable logic created an l s i see which is actually a faster and quicker way to create a semiconductor chip because we had patents we had technology that we procured spent millions and millions of dollars on the procure the ability to do this thing also if you look at three eight three one eight one in the affirmative defenses i'll tourist software click graph license does not restrict use of programming files embodying custom recreated designs that's what our statements were to the public they don't have that right if you tell somebody that they're overreaching that they're misstating their legal rights in appropriately enforcing their legal rights and making false statements about what those legal rights are  the restaurant in an accurate and in supportable construction of that license high you're making telling the public things that are an accurate insupportable was accused of misstating its legal rights so we expressly told sr there misstating your legal rights come by with us we have an ability through our patents to do this particular conversion consistently with that and if you look at eight ten paragraph six that's one of the you'll see that in the excerpts of record so that's the conduct that we have and the cases if you look at those j cases and you look at their response to each of those cheik cases they basically pub back and say ah but it was technically true that these were faster and quicker and they'd be more the legal situation the legal implication and that's the through defamation and if you read the job here and you'll have a higher bar than has already been found by the court of appeal is sufficient and that the vehicle all the cases that i cited there's a plethora of state can occur in the context of a legal purported barred by the first publication because it's distinct in character so with those cases it's clear that doesn't apply the intellectual property exclusions for st paul does not charge the fence because these claims that i'm talking about are the basis for the interference claim and deed interference with prospective economic advantage and contract is not technically a tort it's a remedy for underlying torch its conduct as the supreme court of california has stated and here that underlying tortious conduct i normal course but we don't have that evidence all we have is really oral testimony which does not contradict that but we have no written evidence so where are we well we have a sensible authority why because on the policy it nowhere mentions coverage that suffices and a decision of this court the killer music decision from the night circuit finds an even weaker facts than we have that were an agent who is held out under the policies terms as the person to give notice to receive notice that is sufficient to charge the principal and if you look at the basis for that decision in killer music which is that nine ninety eight f second six seven four eight six seven nine  it doesn't matter if you are a broker you can still put yourself in a position of having to spend civil authority where under particular policy that is issued it says that notice to the authorized representative is as to what that for ten minutes i'm going to give part of that over to them so that they can have your opportunity but i'd like to start off the discussion this morning about the fact that the underlying case was a case about poaching  terrorists you poached through your conduct clear logic you poached our technology that we spent a lot of time effort money to develop and so you were able to develop your own product which would then take our product and used it and then in addition to poaching our technology because you have to have our bitstream output he then poached further by attempting to poach i customers who had our product by saying you may take are the our product and you may then add to it but only because you have the bitstream out what the quote logic product which would then make the closed logic product and only the cheaper and faster which of course are the magic words in the chip world but for that conduct i don't think we would have had a case by al terran vs clear logic that was the essence of the case and so what you determine what the thrust of the actions are all about but we know that there are times when there are allegations in the complaints that are more than just a fair reading you might run across a squiggle here or there that might trigger something such as a duty to defend but th complaint simply doesn't go there when we take a look at the allegations in this complaint paragraph twenty six of the altera complaint says that the product is cheaper and easier to use because all of the real engineering work has already been done by the customer and altera and this is not referring to a publication of a fault statement by clear logic this that referring to the faster cheaper that sort of thing they read it and they said it essentially what you've done you really hurt is because what you've said is correct it's accurate that it's fully accurate in the sense that it will make their products faster and cheaper therefore we're going to lose customers which is the whole reason why they sued i believe in the first place but you can see that what they're alleging is a piggyback by the conduct of clear logic on the altera work effort and then paragraph thirty six of the altera complaint states that those products are substantially similar and in fact according from one of the clear logic press releases conduct what's the status of the underlying actual life has been fully resolved in the sense that it was tried clear logic was found to have infringed and the verdict held on appeal so that forge insurance company a decision we cited to page sixteen of our brief talking about the fact that when you emulate your competitor's product and maybe discuss that product you certainly are not disparaging  product defending the company that prepared and gave birth to that product what you're doing is you're flattering them because of the fact that you've decided to copy what they what they do so with respect to federal it's not enough to say that there was trade libel disparagement that is not the issue as to federal the issue as to federalism is is there defamation and that's the sole issue on appeal here with respect to federal whether or not clear logic was going to go so lester's other questions i'd like to differ i don't see any think you will hear from st paul at this time as to make  you asked him where in the complaint are the allegations mr goldman spent minutes explaining to you where in his affirmative defense that's in the answer to the complaint there were these allegations that he would like to have inferred from the altera complaint to that in a minute was the complaint and the complaint alone as the record to set demonstrates federal asked for additional information and received nothing the only basis for making a coverage determination in this case in distemper of that's what the complaint alleged the very fact that mr gone has to resort to the answer an affirmative defenses is probably a better position than he had before which was that somehow the use allegations of a defamation of disparagement  faster for customers and produce them cheaper as they alleged because all the engineering work that already been done by altera there's nothing left to do all they had to do was make the copies there was no allegation of any war of words any there were specific allegations of false statement of infringement in this case they never alleged anything false was said by clear logic as a matter of fact disparagement you need an injury is false put you need a false tract and in response to your question your honor there would be no false facts in this case because essentially the only quote false assertion or misleading assertion even if you will is the legal interpretation of all tears licensing agreement under the rodriguez case and interpretation is not a false statement that will support the defamation disparag logic gone out and said oh no it's ok you can you can give us the bitstream that might have been a false statement of fact but until that issue with resolve this was a legal interpretation it was a legal opinion generally legal opinions are not the basis for disparagement or defamation in california there is an exception for opinions where they imply a false fact or they imply undisclosed false facts in this case the only possible argument that could be made is to the altera customers the only ones who would care about this would be all fair customers who have actually had the licensing agreement before them they would have been in a position to see what the licensing agreement said and then make a judgment on their own whether what clear logic was saying was true or not under the decision in franklin versus dynamic development tools the court says that when you have the facts available to you when someone's telling you what they think those facts mean that's an opinion and it's not actionable that's exactly what happened here just as in the franklin case where the defendant alleged told people look at this website we think this shows what we think it means that's exactly what happened in this case even if you accept that somehow these allegations of logics assertions of rights of the licensing agreement could be found on the complaint which they cannot the fact remains that the only people who would have h or could have understood those facts in any way would be people who had the licensing agreement in their hand and could look at it and say well i don't know it's just been clear logic maybe they're right maybe they're wrong but it's clearly an opinion it's not a statement of fact it's their interpretation of a legal right under the licensing agreement with respect to the arguments made about whether or not there was material previously first made known the complaint establishes without a doubt that both of the products that were at issue in this case the three thousand series for clear logic and the seven thousand series the bitstream information and the use of masks had already been initiated prior to st paul's policy going for people to send their bitstreams for the seven thousand series in other words the oh yeah it's ok to send the bitstreams to us argument statement assertion which appears nowhere in the complaint had already been made so under the law of california under the regular decision you don't even really need to worry about whether they were substantially the same as the eight thousand series the fact is the clear logic made those representations it was making that that assertion whatever it is that appears nowhere in the complaint address that right now you're on the answer is no we did not receive noticed that's our position what the court found below is that it was a question of fact we didn't even argue that that could be resolved on summary judgment we don't think that it can the fact remains that there are there's evidence on both sides contrary to mr gauntlets assertion mr jordan did not testify that notice was given what he testified is the soon that his assistant would have done that that he assumed that he doesn't know the both of this record for one thing with respect for deciding st paul's motions it can be assumed that even if we had received notice that would have been no coverage with respect to st paul's opposition to the logic motion we do contest notice we contest tender the facts are in conflict under california law whether what someone as a broker agent when they're operating in a dual capacity is a question of fact and in this case the letter that was sen on their behalf as we also cited in opposition there was a communication between federal and your logic and clearly logic says well i don't know about coverage talk to talk to our agent m b o and  discuss the issue with n b l on behalf of their logic with respect to st paul there is indeed need to see agreement they are allowed to transact business that is sell insurance however they're not allowed to handle claims unless they have some other actual reliance and there is not the evidence in the record was that when clear logic was deposed in this matter the person they put up said that he had never heard of m b m that he didn't have never heard of st paul that he didn't know anything that even if you could get past all the problems that they have with no allegations in the complaint and the fact that even if the allegation they want to make is essential in a legal opinion that's not actionable at the end of the day this was an intellectual property alleging that their chips their masks had been ripped off and they were alleging that their software their intellectual property the output from their software licensing agreements was being highjacked that would make the intellectual property exclusion in both these think paul c g l and these st paul you know policies applicable policies that is that is does not cover was this from an actual or alleged infringement or violation of intellectual property rights it's not just infringement it's not just copying it's not just trademarks it's any intellectual property rights and in this case it was clearly nothing but intellectual property right influence potential purchasers not to buy this notion about opinion that was not raised by st paul federal raised it but if something is capable of being shown to be either true or untrue it's not an opinion i which was filed on two weeks before the denial letter a federal in january it also is the case that we we tendered the entire matter in zero three before the underlying action was resolved  and that included all the motions all the supporting documentation said all the evidence including the evidence of the marketing director of clear logic that said use of the bit string was not restricted and out to his claims to the contrary were false and  gone the other direction forty four forty two forty three forty five and fifty if you carefully review them in concert with the reply brief you'll see why there is clearly a defense due and if you don't find a defense land doesn't make any sense because there was much less influential activity required here than there was a lamp to get the result judge crossed you carefully reach their ok thank you both for the arguments very interesting case will be submitted