but whether it's part of a promise not to use the x circuitry to infringe because if it's part of a promise that a freestanding promise not to infringe the slim easy decision for you because one is that the city the two doesn't go with the other wise practice that goes with the things that you're not supposed to do with the c s surgery number one you're not supposed to use it to practice lead mode you're not supposed to use it to practice reverse current protection but the two has nothing to do with the other was practiced with them is no doubt about this we have met and everybody acknowledges that this agreement is not an example of great gra to match perfectly they they have to put an extra two in and we have to put the will not of the other was practice and that's why  why the expense of governance is incredibly important here wait for the comment means that when we're reading that i mean usually you supposed to use commas and basic grammar right to set off three different things which is what they're doing in the sentence you're saying the would no your honor in fact what happened was during the deposition it was clear that he made no qualification like that whatsoever he went back and through the through the vehicle of the so called karata his real testimony is on the iraq which you can't turn a deposition into a take home exam and then that's what he did he made it say the exact opposite of what said he was asked this question there was no limitation of this on whether it was it sort of to or not the question was did you agree not to do this and he said yeah we paragraph of the of the agreement and it had nothing to do with this particular testimony it was at least as consistent with the testimony of liniers witnesses as it was with the lawyers position is that there was only a promise on the on not to use the as we have circuitry so we did respond to their argument that this is true that evidence was completely confused if not on this issue it was never confusing on this issue me and will not maintain you're saying that we have to take them will not out oh no that's not me will not goes with both will not make and will otherwise practice what i'm saying even though thank you for that will not make do it in the most artful way and there's no question about that but i maintain your honor that the grammar of the sentence is what is is equally weak when you apply it to the otherwise practice but yes in still even even even clearly separable and what he did was say well you prevail on certain things will cut everything in half but that shouldn't even been the base in the first place because they gave up their contractual right to have that in the base they gave up the right to seize and california law or even of the common common issue rule is that you can collect fees that are x that are inseparable when you're in one of these situations if they're inseparable from like take from a plane where they would be proper in the first place these are not proper in the first place in view contract california does have a liberal rule that allows the court to consider extrinsic evidence in order to reveal a latent ambiguity in the written agreement but you're still interpret ing the language of the written agreements you don't get to go to the jury  well we've all taken grammar and some people use zero dollars and some people don't in fact the word otherwise confirms that the otherwise is another way that's related to the previous fords reverse polarity prevention protection excuse me  problems as you pointed out there don't know if he's trying to do radical surgery to get to the construction they want they want to rip it out well not from the phrase has not made and will not make any sales skip forty three words forward ignore everything about that's a problem for both parties interpretations and it's irrelevant to the case because nobody's arguing that m p s was not forbidden from practicing using the x circuitry to practice reverse polarity protection there's really no ambiguity about the and in this case the word sleep mode and the reverse polarity protection were in quotation marks they were the words that were used by many years expert in the i t c for cd m p s of x for didn't use those terms you can actually look at page fifteen of they use different terminology a good lawyer is going to say i don't really want to get into a semantic debate over what sleep mode means or what reverse polarity protection means those are the words in the claim so i'm going to include a catch all that covers other ways of using  because everything every employee to claim would be a claim to enforce the agreement the exception have to have meaning and in fact you can look at the drafting history and show that m p s wanted that exception in there because it wasn't going to give up  products that have the accused the x or country disabled as set forth in the i t c proceeding may be produced that's the flipside of the preceding sentence if you are using the answer to tree and they're connected so as to practice the claims that's a problem if it's disconnected go ahead there flip sides of the same point but look at six point one exactly parallels three point three provides for remedies what is a cover if you used a license licensed product after in fact california law says it would be eric's refuse to consider extrinsic and you agree with that you must consider it as a preliminary matter to see whether or beal's an ambiguity in the contract language and judge please consider to what he said was said i don't think the meaning is reasonably susceptible to that interpretation so i'm not going to consider in deciding whether to grant summary judgment that's exactly what all the cases they cite the one that versus price that's exactly what you're supposed to do you consider to see whether  agreement is reasonably susceptible to that interpretation if not get out what about the fact that you are when he says that that's really not a good fact and i see that you try to argue well i wasn't ready to change but when he  start on eleven seventy five this is the whole colloquy about this issue it begins with the statement this case was about four parts that m p s made the fifteen fifty six which had been sold in the fifteen fifty seven fifty eight fifty nine and the fact that they contained as the excerpt the three as identified by counsel for when you're in the i d c proceed that's the beginning of the colloquy the next page he gets a follow up question in which he's asked well can you testified today that mr england never told you that when you're given in and around well i think he's allowed to make substantive corrections in this case he was clarifying it to be consistent with his previous answer but let me go back to the critical point the question isn't whether the extrinsic evidence is ambiguous the question is does this create some sort of ambiguity it right out and said we're not going to agree to that throughout the expensive evidence throughout from the beginning from mr shane's letter before the negotiations on the contract language to the very end the very last day before the agreement was adopted m p s make clear we're no it would need to be the circuitry in any event we're nowhere close to that here it's conceived of these are totally different designs they were made by different design teams of different times one's got a key components one's got forty  secretary according to limit we disputed infringement of course so there was a settlement in which we did not admit liability but that was their contention that practice the claims  fees are interrelated but i don't want to award you all of it even though you might be able to claim that under california law i'm going to allocate all of the patent fees and take them off i took out he took out fifty percent so that's the way he looked at it the claims i can't segregate what actually there were in the case actually involves an infringement in validity and an equitable conduct certainly of the claim construction of the claim construction issues applied to non infringement and in bolivia even after the claim construction we have the same experts playing and of course even before there a sense and equitable conduct was closely related to validity issues so there wasn't any hermetic ceilings here nor was it the case that was solely about obviousness infringement was dry and equitable conduct was tried we lost them we haven't appealed them because frankly the pap is going to expire in march and it's not worth bringing the appeal so the fact of the matter is the district judge was in the trenches he heard the case he had all the record reform he knew how it was tried and he determined that it wasn't it didn't make sense to try to segregate out why item by line item and figure out which plane it went to instead he said we've got the contract we've got the patent they're intertwined and i'm only going to of i think you heard an argument that this judge decided that he didn't have to take into account the parole evidence in determining whether this language was reasonably susceptible but that's exactly what the california case of say that reasonably susceptible determination must be predicated upon the valuation of the parole sentence and that's exactly there and the judge made he just noted parole evidence notice existence and says i don't need it because this is not if you read his opinion the sole thing he says as linear relies on problems that he moves on and says this is i don't this is not reasonable susceptible of of that he never did an evaluation of the parole evidence to determine whether it's reasonably susceptible an think a fair alternative would have been to carve out the validity stuff which the contract says we've given up our right to argue in the contract and then the evaluation that he made the fifty percent of valuation on what's left is would be perfectly within his discretion a in the first instance if you were legally not empowered to include the ability for these you can only exercise discretion on what is legally empowered to exercise or not we think the contract takes that out and takes it away from him takes away from discretion so two other points one on the the z x circuitry in this twenty versus thirty versus fifty or whatever it is and this argument that that these are totally different  provisions of the agreement and who they supported don't they support it if you look at paragraph six point one and three point three and you look at page thirty six of our bloomberg you will see the difference between those two paragraphs the otherwise practice language stayed in three point three it's not in six point one these are two different things six point one merely was to to make sure that when the forty percent royalty