r consistent with your book you don't need sony's technology that's current now that's why i'm trying to understand it i found really quite confusing in complaining about the all the patterns or some subset of the tire we entered into the agreement it was an all or nothing proposition it was a pool set of patents so we have the option without for so the notion of whether or not phillips pay the prove is that we existed in a dark competitive market the proof is there we were able to possibly reap the benefits of competitive pressure applied by turning the standard to the orange book those are the that an alternative technology was feasible and would be so good it could be who really competitive we want to put technology i don't believe there is evidence in the record to satisfy that standard my concern is it's inappropriate standard in this circumstance because we are forced to status the platform market what would have happened but for the collusion between philips and sony what we were able to establish and i could not be used within the context of the orange book license or outside of your book license which in effect meant that technology could be used for build purpose whatsoever it is you have to see points out in their brief a clear what they mean by that but what is clear for other measuring is the use of the patent in question which is arguably beneath you i understand it in that sense there is a direct relationship between philips use of its  provided us a standard we all know that standards are a benefit to the market and that's the number of ways isn't this elemental to the standard setting process that you're going to  one and reject the other and then in force that as they did contractually wouldn't your position and dangers now entered setting world wide and disrupt the market right now i'd be watching this saying we can't make any agreements to have a single course of conduct and shut off any others because we'll all be in her mis use if not an article  not and i trust you can certainly set a standard there's nothing wrong with that you could choose between technologies to go into that scare what you can't do what they do here is to say we're going to put this technology standard and you can't use that alternative for any purpose at all that is the repetitive fact that some of this year's worth of play if you're not did good work of course according to the record that we have here but even that aside why wouldn't  manufacturer likely wanted it in the pool we are submitted data that shows there are clearly limitations that would not permit that interpretation we certainly appreciate understand why you want to use a inclusion in the pool of a patent that isn't relevant to the technology that's ultimately adopted is the standard is the problem is that right that's what i understand your argument it's it's part of the problem for the so so my question is which patent ones that are added in appropriately so then it seems to me that your argument its natural conclusion is that everything in the pool is being misused but that's a fair bit i might like to diverge a little bit from your premise not everything  to select individual patents we did not have the opportunity it was all or nothing you got to take all the phillips and somebody who passed or not at all so there was no option for that question to be asked after the pool a licensing would walk those patterns i do not consider that to be collaterally all it is central to the misuse here it's central to the expansion of the philips patent such that they go back to the control the digital where there was standard set and there was no joint development of technology that went into the standard setting but you had two participants in the market who got together and agreed to pool their patents from a set of standard would the commission view it they're trying to find a place to the question in terms of a hypothetical relating to pat misuse could you answer that question technology isn't surprised what's the position of the i t c with respect to whether commercial viability is the test whether the f t c is correct that some lower test or to be a  the deposition testimony proffered agreement and there was actually stuff potentially agreement not to be good looking we didn't see that as evidence that they were better and under the standard on you remember that we have a situation in which there's no joint development of technology to companies get together to rip patents to set a standard and they agreed to suppress an alternative technology represented by other under an inherently suspect standard doesn't your client under that approach have the obligation to come in and addressed just for patients well a lot of the action here justification to philips in this situation that you posit i think the answer is no because i think it's desire to be similar to this one in the far back we had two parties that agreed to suppose hypothetically that we conclude that they didn't want you what should we do should we send it back for the development of a for a record or should we try to decide on this record should i send it back because the answer is both on the agreement point on the on the competitiveness point on the justification point why why should those issues be decided on what you seem to agree also is a skimpy record or if in fact we have a situation where the agreement to do a joint venture for development gives rise to different types of package and then the package from the use for  circumstance that could be misused to to try to protect the orange book patents and the technology that they represent from competition from other people could that be patent misuse of the orange book patents scope of the patent suppose i am to patents one analog one digital and i tell you only one out license the digital you can only do it if you also license the analog bundling together you got a license both through you can't license either would that possibly be patent