this appeal is perplexing as it strikes me that it should be or rather straightforward your service simmons asks this court to vacate the judgment of the district court below to reverse the district court's decision that it was on able to enforce the that we are asking of boils down to one very simple fact which i believe to be undisputed that on june th two thousand and eighteen the parties entered into a binding of so many with the result all the issues in the underlying case that  question and as to the st portion the court was notified on the very same day that the settlement agreement was executed that being june th two thousand and eighteen the court was notified by the filing of the joint paper that was a notice of settlement agreement and a request to stay the case request a stay of course is not uncommon in the post code in a world in which the supreme court had explained that district courts did not have power to enforce settlement agreements after dismissal was entered and as a result it became quite common for parties to ask to delay your entry of pending payment of a settlement payment so that if there were concerns over that payment there was no need to fi settlement and its judgment two days later in the judgment that issued on june twenty the district court dismissed as moot or denied as moot the parties request for a stay the court did not in any way express i believe that the district court was perhaps not aware of the terms of the settlement those are not at that point been provided to the court but there is no reason to believe the court was unaware that a settlement agreement had been entered and in fact in the airports subsequent order denying the motion to enforce the court acknowledged that the parties had filed a notice of settlement agreement but that the court was unaware of its terms at that time regardless what the court was aware of once article three standing is removed any court action thereafter is in fact void regardless whether the court had notice of the settlement that does not mean that in some way the court should be reprimanded for having entered an order not fully appreciating the party settlement rather the is that the agreement wasn't formed executed and because payment had not yet been made is that correct that's their argument and what is your response to that that is correct and that is in fact their argument i don't think it's an argument with merit and in fact on remand we intend to seek attorney's fees for what we've yet to be frivolous behavior here we have a scenario and i don't use the word frivolously this case concerns me we have a certain area where we have a undisputedly fully executed settlement agreement the majority of the primary key pieces that we do here are cases in which party to reach settlement terms or exchange to draft settlement agreements this case is actually rather unique in that we in fact had a fully executed settlement agreement that on its face was effective as of the time when it was finally signed for instance i refer determination don't get me wrong i mean i i i understand your argument to be that performance was that their settlement agreement was already form formed and that the performan limitation was just something that had to be it was like an obligation to the contract not something that prevented it from being executed might be with respect to your comment about attorney fees i just wonder arguing that it's frivolous when the comment about that i don't think unfairly comment on the demeanor of the district court at the time but i do believe it's fair to say that the district court in fact entered an order of summary judgment of not infringement but as a matter of law that order was a void at the time it was entered into view of the settlement agreement had caspar in fact believed to strongly in its positions then as it does now casper likely would not have entered into such a settlement in fact the reason courts recognize and respect settlements to the extent they do is that settlements themselves recognize the uncertainties of litigation and litigants interests in avoiding the uncertainties of those litigation is to resolve their disputes it may be notable that the actual payment term is not a significant sum at least in the world of private corporations that of course is not the most significant term in the settlement agreement as the product of not been on the market for an extended period of time and had not shown significant profit from which any damage would be derived the significant term of the settlement was in fact the cease and desist term whereby casper agreed to redesign its product and in fact that was the nd time or i do you run around this is of course the subject of their cross appeal and we have addressed this in our response to cross appeal at some length referring point to point to the issues being raised the primary issue they seem to that claim construction the district court then in fact did it reconsider its claim construction order entered a claim construction that highly favored service sentence and on the plain language of the district courts claimed destruction there could be no dispute the claim was infringed ultimately and then at the time of summary judgment the district court did not further expressly modify its claim construction but now the district court seems to have implicitly backed off of its cl construction in view of what it identified as a prosecution history disclaimer what that course of dealing suggests is in fact a highly contested litigation largely focused on an issue of claim construction that was itself hotly contested and that at different stages the district court tipped in one party's favor or the other as it was swaying from side to side for your interior revile i do run how how are the course supposed to reconcile this to judge a state court judgment and of course we would think that would be wrong but a state court judgment that did not find frustration of purpose discharging casper's human obligations would have no stood up here and actually conceded that the case was not moved he stood up here and told this camel that if the if there is no article three jurisdiction the court doesn't have power to act at the same time he told the panel that the there's case law holding that a tentative settlement does not exist tentative and the same case holds that in that case two parties had signed an exchange dismissals but simply not submitted them to the court that don't tell us what's in the settlement tell us whether my question is are you saying the court was not notified of a fact of a settlement the court was notified that agreement possible ok then the next sentence the terms of which are intended to resolve the matters income why isn't that a just accurate description of what the settlement agreement was intended to do it is accurate your honor and if you look at the terms of the agreement it says on its face that at the time the parties submit this motion to stay it will be pending final settlement it says that for begum in the agreement the agreement by its terms contemplated that it turn specifically to appendix eight hundred and sixty eight and you look to section two two it says immediately upon full execution of this settlement agreement the parties will cause their respective counsel to file a joint motion to stay the litigation pending final settlement or non you know disputed the agreement resolve the case right and so not at the time it was intended to ultimately resolve the case its summary judgment order and therefore again because the server bargained to keep the case alive it said that in its brief that it was unsure about payment and so it negotiated to keep the case alive it could have done depends on this and what the consent judgment includes your honor i'm under kukkonen in order to have jurisdiction to enforce the court would have had to incorporate the settlement agreement into an order so that under ancillary jurisdiction it was exercising i to enforce its own borders or potentially although county rejects this proposition it would have to be ancillary in the sense that it involved the same case or controversy kukkonen actually said it didn't apply that l of ancillary jurisdiction and i think it equally would not apply here but those are the only two basis for a district court to have jurisdiction to enforce a settlement agreement neither of those are present here so let me be sure i understand your  your your position boils down to one rather specific question and that is was this a settlement agreement a final settlement agreement even though there were things yet to be performed your position is that was not a binding settlement agreement at the time it was entered into the case not quite the agreement was binding there's no  agreement that was binding on the parties to carry out the steps there in and specifically provided that there would be no dismissal and no release and therefore no resolution of the controversy between the parties on the date it was something that was the state of play on june th when the district court entered its summary judgment or and you get there by your beauty in the settlement agreement by the plain words of the settlement agreement that say mercy and then we vacate the summary judgment what do you do you think should happen i mean i'm just wondering procedurally what is going to happen hosing counsel is asking that we remember things struction is to enforce the agreement what is your position on that so if this court were to find that there was no case or controversy that the case was moved on june th such that the district court did not have power to enter the summary judgment order then the case was moot makes clear is that a court a district court does not have inherent power to enforce and a state court contract between two parties even though it settles the case it has to come from ancillary settlement i'm not sure the timing of the settlement but what i know your honor is that when the motion to enforce was brought when the motion to enforce was brought the case was closed and the court had not had not incorporated the terms of the case your honor if i see i'm cutting into my rebuttal time i'm happy to keep going if the court does not have questions on the cross appeal if there are questions on the cross appeal i'd like to reserve my time i have one quick question i believe if a court does not sanction they invite there's the issue of the merits and i think those speak for themselves this is a case in which the merits were so strong the district court saw a motion to stay pending settlement and kukkonen world the parties generally ask the court to stay or pending such things as the element payment rather than immediately dismissing cases i don't think it can and gets us anywhere what does get us some place is this courts and a nd circuits said to a federal circuit google case but this court's decisions in exigent and a cool both advise that whenever there is a fully executed settlement agreement then it is appropriate to vacat but it points out that this circuit and the nd circuit are aligned on how to address the situation like this in a general the nd circuit or the reversed and remanded with instructions to reinforce into that case unlike this the settlement issue had not even been fully executed rather the parties have reached a settlement in principle and the court stated for the six of its decision it binding settlement was reached and it should have been enforced