filed below one count of the complaint was dismissed apparently in support of our position but the remaining cows will go forward to trial unless the lower court is reversed this court's review of the matter is and we submit that a fair reading of the application of the decision will all of this district which is fully in line with that of other districts calls clearly for reversal of the trial court's ruling there is a one page order which appears in the record at page one ninety eight by which the lower court disposed of our motion and it doesn't reveal a lot about the lower court's reasoning let me for a moment describe the transaction between these parties which gave rise to the agreement in which the arbitration clause peters the transaction is summarized in the complaint the principal transaction documents appear in the record the relationship between these parties began in one thousand nine hundred seven in an asset purchase and sale agreement purposes it was a family originated business dr wasserman his father in law mr davis had developed this product and had been exploited it and sold it commercially with some success to me let me just forward had the problem is that the license agreement doesn't contain an arbitration term right well and that is not a problem with all because the transaction between these parties are structured the asset purchase and sale agreement called for the entirety of the d w p business including the company name the company goodwill and not surprisingly there were employment agreements and a consulting agreement with the principals of p w industries as well for that business in its entirety dense apply paid at the front and seventeen million dollars and there was an accompanying additional earn out to provision which provided that going forward with this business that is the standard tip system if the sales of sandy tip exceeded a level that the agreement said about nine million dollars in the years four and five after the transaction then the seller would be eligible to receive some additional payment on a  formula they have the right under the agreement to an accounting is that right absolutely the day they received both royalty reports and he was on the periodic basis why isn't there a lawsuit asking for specific performance of the that had been accomplished by dense supply of the product in order to account for whether any additional payment is due to these parties and although this complaint was carefully drawn admittedly to try to walk around the arbitration performance it's all qualified by that and we pointed this out to the lower court as well the specific performance paragraph which appears in count five the one count the got dismissed was styled as a specific accounting let me direct you to the simular case which i think is probably the central authority on which this court could review and decide the matter because claims as well and the court said all of these matters go forward into the arbitration and are not superseded or kept apart and along the way the court dealt with this court dealt with the question it recognized that some of the remedy embedded which have dealt with issues of this story clearly indicates that the plaintiff cannot control by choosing troop meeting format or styling of his cause of the faction to avoid the impact of paragraph number one of the dens i'm agreement which i think clearly recite the party's intention to bland that is the party's recognition that the conveyance of the upon the parsing of that particular term because of the breadth of the holdings of this court in its determination that a broad arbitration paragraph which this undoubtedly is sweeps before it any claim relating to arising out of the parties relationship and let me as i see my time winding down remind the court that the language of this arbitration paragraph picks up any dispute or claim bought the entire cluster of the santa trip see any business to then make decisions about the the way in which it will promote and sell this product nationally and internationally that's the core of the dispute between the parties and and that's arbitration of the license agreement is never specifically set forth in the purchase agreement the arbitration agreement was an existence for six years before the purchase agreement has ever entered into agreement which is also in the record i'll point out to the court specifically status that all they're doing is amending it to add additional products and it's only signed by the davis is indeed w p because they are the parties to the license agreement and it's amended to add additional products and it specifically says all other terms of the existing agreement remain in full force of effect ok i want to clarify one thing the copy that we have in the record  regardless of the title on the front page that's why i asked that question and i may be working up the wrong tree here but that if i could found it me if i could explain there is in order to a there is a separate amendment to the patent rights to the agreement which is in the file called to the court's attention in a moment and that a dent in the or that amendment excuse me i like any amendment it relates back to the date the agreement was entered into it and some additional product and specifically says that every other term remains the same the patent license agreement the site sits at the exits of record of one twenty nine that  against third party infringers and under certain circumstances allows a license or to initiate litigation against third party infringers and in order to a factual a thought right litigation is necessary arbitra we get more money that's what the pentagon argues that doesn't make it correct the complaint only seeks additional wealthy payments under the license agreement the specific purpose performs provision with respect to the purchase agreement that was permitted under the arbitration clause which puts the complaint the complaint says though just to effectuate everything in one piece of litigation because it is conceivable we don't know right now it is conceivable that there was a breach of the always are i guess i'm still not clear why is an arbitration an adequate way to redress that it may have been if that's what the parties agreed to what i'm suggesting is when the parties entered into a license agreement six years prior to the purchase agreement they specifically to go she waited for the right to sue in a court because frequently third party discovery was going to be necessary to prove their damages third party discovery that may not be available at the discretion of an arbitra so these were substantial rights that they had those rights were continued in an amendment said that said the prior existing terms remain in full force of the fact and this court should not assume that those rights are being  at a minimum the parties can't go in and argue to the arbitrator that they never signed up for discovery did they signed up for discovery in connection with the license agreement not the purchase agreement the license agreement specifically had a right to sue in court and let me just beneath this time and time again we have heard that there is a broad arbitration clause and therefore it sweeps everything it all back does this create a presumption every single supreme court case cited stands for the proposition that arbitration is a matter of remit it cannot be imposed the court can change the terms of the agreement and all that happens if there is a broad clause use which this years although there are broader c right in the license agreement and the washerman said nothing doing they wanted to preserve the right to sue in court if there was a breach of the license agreement and that's why a court action was the shit and why there was no arbitration pursuit it was important to the was to be able to fully pursue their rights to third party discovery which was not guaranteed under the arbitration clause and to fully litigate the claims as they bargained for it in the license agreement there is not a single case cited by the defendant that has such disparate contracts i mean if i i think i mentioned earlier that the asset purchase agreement provides and again it's clear that ancillary might include i would suggest it might include the assignment let's say the assignment turned out not to have been performed they have a right to enforce the assignment but that doesn't create innovation as to the contract complaint that stands before you the last point is the argument about the negotiating history between the parties is interesting but it really doesn't change the effect in the language of the agreement with which the parties did sign thrust of the affidavit in the argument that he's made of course that language appears nowhere because it was never inserted and he cannot through oral testimony attempt to defeat the expressed language of the agreement which is fully thank you