each way requires reversal st it aired interpret in section one three under the heading that definition and specifically with regard to licensed products quote unquote capital l capital p incorrectly in a way that for clarity clauses is that the definition does not prevent oyster from exercising certain patent rights and so it should be read together as a self referential clause and regardless your hon dollar it should be applied under normal contract principles whether it's part of the definition or whether it's simply referring back to it you would say it is the well grafted which is frankly a mess admittedly your honor it could have been drafted more clearly however that question should not control here because other issues require reversal and if the question about it how it could be drafted more clearly was really relevant the parties could have put the for clarity only in section four point one the contracting parties did not it was in section one three but the district court's misinterpretation applied that for further clarity clause only to the reference back to licensed products in four point one and not in three point one  at one point three and why can't one three just be communicating here's a definition for the category of something called licensed products and there's nothing in this definition that which regulating restrict how and when the patent and when are owner oyster can exercise patent rights what is wrong with looking at the overall structure of the release agreement for a we don't disagree that you have to look at the overall structure of the entire lease agreement but what we what the quarter is when you look at the overall structure of it applied the four for the clarity clause only to four point one when the capital l capital p term was used and not to three point one where the same term is used and so that violates contract law contract law which requires applying it the same throughout the contract secondly your own it also its basis for doing so was that the parties the contracting parties merely were restating known law of ignosticism and that with this basis for applying it only to the reference back to life as product of four point one and not for the reference in three point one but undercut the texas contract law and frankly the law of most states the parties are presumed to know the law and therefore the contract doesn't have to restate it so the courts logic and applying that that interpretation that the parties merely with the four dollar doesn't even lend itself to that type of misinterpretation it's not about exhaust so what you have here is a situation where the court created tension both b not applying it at three point one where it shows up at only playing a four point one and again all sides on this appeal agree that the four further clarity clause at least refers back to the st let  in the cases on appeal but if you include the claims in the analysis of the claims of the ninety five to patent your honor you reach the same conclusion across the board this you say though it says page thirty nine of the brief that's being appealed so you are correct and furthermore the even if you ignore the disharmony intention created by the court's interpretation between the broad release to fujitsu which doesn't use the capital l capital p reference and the narrower release to customers which begins with the but only to the extent clause and it also uses the capital l capital p not just lower case p is that the but only to the extent clause was completely ignored or misapplied by the court and this is at appendix forty three and because it was that it was not only ignored and does not show up there but in so it misapplying it the court changed effectively changed the mentioned the narrowly mentioned claims for rd party rights from but only to the extent such customers and i'll skip over a little bit here made offer to sell sold or otherwise dispose of license products or components of licensed products if you look at those individual components did infringe those kinds there was no formal allegation your honor there were statements that were in the preamble that admittedly in a sloppy fashion carried through to the to the actual other parts of the f concerning the patents for not capital l capital p but in contrast to the rd party rights is just any product right so the projects you release is for any and all of the areas of infringement receiver yes for fujitsu so any theory of infringement and then moves on and says oyster release one hundred section three dollars also shall extend to all customers but only to the extent that customers may to use or otherwise dispose of the licensed products or components of the license and if we conclude that the best understanding of licensed product account of a new product through due to makes and sells that means an infringement theory as a result of and he projects your product and so therefore wouldn't you also be blocked the customer released in stark contrast says but only to the extent that customers have made an offer to sell or sold or otherwise disposed of the modulator or the receiver in this case they did not purchase the transceiver cards for among many other components as we spell out that the attlee's obtained from other rd parties build in the specific infringing manner into a much larger transceiver card our claims at issue here  the customer release provisions that fujitsu had paid for and received as a part of the oyster future tsu agreement and judge construct correctly graded summary judgment as a result before i get into the why i didn't want to address one question that you had relatively straightforward well for our point of view what we need to do st is ask the question is it a licensed product so is it a component is it a device what's the purpose of the other less clause and one point the for furth is doing there is it saying just because we've anointed these products with the moniker of licensed products just because these things might fall within the ambit of this broad definition and we used the phrase license problem don't take away from that that these products will be licensed in the future for any particular purpose we need to look at other points in the green to figure that out and so the for further clarity clause is saying that because of that don't look at that but the unless clauses of course consistent with cases and and exhaustion that's completely different than the scope of the three dot one release provision which has much more explicit language so you think him less quality just so i understand it's only  whole scope of the end that of licensed product so that so that i'm clear here under ford out of one the forward looking release provision fujitsu would have received explicitly a license to the licensed products but it's silent as to what rights customers will get unlike the three dot one release provision the four dot one license is silent as to customers so what this unless is doing is saying just because we've annoyed it as a licensed product doesn't mean a customer in the future will receive any particular right unless what they purchase meets the substantial embodying test makes the quanta test so if they purchase entire transponders from fujitsu then they have a forward looking license if it's something less than it relates to the real world looking in the past looking released under three doubt one no because we have an explicit it doesn't in your view it doesn't have any bearing on the retrospective released a three point one please it doesn't have a practical ramification on the three dot one it is simply saying ok we've decided that this modulator is a licensed product don't take from that definition there's any license rights come in with it for customers but then we read the agreement to see  get we read three don't want and we see very clearly that fujitsu and its customers have been for used for anything on account of those products we received a complete release for anything that we did with those modulator receivers was faxed entirely within the knowledge of oyster they knew exactly how we disposed and so the modulators and shippers they knew what we did with them and yet they still signed this right we disagree with in that paragraph was that the practical ramifications of what the four further clarity clause is attempting to to clarify has more practical applications to for about one the future looking license as opposed to three doubt one the past looking release way necessarily only applies of one point one correct i'm telling you what if i disagree with them words that you well then i think you look at the whole agreement and it goes back to what what is this cause doing  you could go there too but i would say respectfully before you even arrive at that point what you would do is look at it and analyze it for the two questions that us surely are judging or you ask isn't it simple it says it's clarifying why can't we just take it at face value that it's clear fin chenier question several isn't this just talking about the licensed products and what that means to be within the ambit of that definition and even just look at that putting aside the tense of the verb and jaron or whatever it may  be i still think we come to the same end point it still simply saying just because it's a little let's call it a screw just because a screw might fall into the definition of license problems for that reason alone don't read anything into that that's not the end of the an i don't think it goes it really affects how you would interpret these provisions because what you have in the section one point three is you have a definition and then you have two clauses or two provisions the following three work  clause and the for further clarity clause and i think all those two provisions are doing it in a very straightforward way the st one is just simply reserving the rights to the extent that something is not licensed and the  nd is simply reserving rights to the extent that something is not exhausted and the judge feels trapped was exactly right to think well as a practical matter that's only going to that nd one is only going to matter in the context of the forward looking license because that's where exhaustion principles would potentially come into play and as to one of the questions that i think you asked it also does by being there for clarification make it clear that the definition itself that st sentence of one three is not a license and if you didn't have clarity clauses that followed you might think that it was why because it says that these are quote licensed products it says that they are at quote any time and includes ones that are sold to quote customers and so if you didn't have any clarification you might think that was itself a definite finish in itself was a license but instead the license is of course in four dollars it is only two fujitsu and it is only two licensed products and so one of the upshots of their position is if you read license products the way that they would have you read it then that would mean that f would not have a forward looking license to products that were specifically and repeatedly accused of infringing including just one week before they entered into this agreement and that would not be a reasonable interpretation of the agreement no matter how you come at it and that's exactly what judge concluded which is no matter how you look at this this contract you cannot read this definition of license products in a way that would exclude the modulator and receiver devices that were specifically and repeatedly accused including in the original contentions at eight hundred and eighty eight dollars the proposed amended contentions at twenty appendix tw does will this was just sloppy we didn't really mean it just strains credulity when it's these were two out of a leaven products that were specifically identified in the infringement contention and two of eight that were sold by fujitsu optical addenda fight in that nd complaining so i think no matter how you come at this the definition of licensed products cannot exclude these components and likewise if you turn to their their fallback argument about the to the extent language i know to couple things number one this is not an argument that they made to judge you can look at appendix four thousand and one of four thousand and five it's not in judge chin the way that you were up with your colloquy with with opposing counsel is exactly the right way to read that language and all it means is that the customers are not getting a broad release that is th fujitsu are not getting a broad release to their entire product catalog to extent that that product catalog includes things that do not include fujitsu components so i think that the arguments they did present to the district court this record decided exactly correctly this other argument about to the extent which they didn't present to the district court they're simply wrong about and it just means that a licensed product must be part releasing the customer not from even though what the customers thing is a marginal product it just happens to corporate individual components it's sort of like broadly worded license scuse me a broad it were broadly worded release and you would have done a fight in the colloquy the on the account of language that is very broad language it means you know because of what for do to and it that use and there's no dispute here that there infringement theory depends on their use and this was the point from appendix forty three as judge noted he said quote with respect to those accused products that is the accused products of cisco and al that we surveyed wanted to avoid a situation where cisco and alcatel lucent would have received a release here and that's what we're talking overtime at the backward looking release that's all that's at issue in this appeal they could've easily done that it's they they could have carved cisco and alcatel lucent out of the release and just said this release what you know will not apply to those entities or will not apply to anything at issue litigation they didn't do that they instead entered into a very broadly worded release that specifically included customers and they did so at a time when they were telling  of the language of the release that we're talking about that would prevent them from suing and indeed those those allegations are still pending in the district court the district court has before it claims against cisco and a lucent for products that do not include fujitsu components and for products that post date the site of an agreement that's that's exactly right those are still pending and then that would be subject to exhaustion principles but those are not at issue in this case what is that issue in this case are entirely products that predate the settlement agreement and thus were released under section three point one have a final thought on your final minute unless the court has further questions i'm happy points the customer release in section three point one isn't does not state that it's based on a component or on account of a component unlike the fugitive release it says but only to the extent that such customers have made offer to sell their soul or otherwise disposed of the modulator receiver so that's the key limitation both sides agree now that it's a narrower limitation and you have to apply it go with the air of the district court mate was by changing the words of that to any product that includes the licensed product now under texas law you texas law requires that you must specifically mention the claim to be released for release and also that you get the release has to clearly fall within the discharge section if it does not you can not release the claim and because it so might my my colleagues mentioned that the circumstances of the settlement should be take into account when they  are that's the very reason why the four for the clarity clause and other things are in one three and not only in four point one and this case is similar to the law in this case the texas case is similar to you know  the california law applied and you know but stronger the texas law here is similar in that they both require reading the contract as a whole and looking at the circumstances surrounding the transaction the contract in both cases it was a settlement with other litigation pending texas law however those two steps further it requires that you can't release claims unless it's clearly  within the contract and that's input at victoria bank the case that we cite and also for rd party beneficiary claims it requires that any doubts he was of against that rd party and that's resolution trust that we say here there is our claims are only based on the transceiver claim that you saw depicted in both briefs that's the broadest independent claim and these receiver components and modulator components are just a couple of elements of that the district court itself recognized that on line and on cases thank you