injunction against a mile and an outcome the district court held to cater had failed to show that it was likely to succeed on the merits the district cannot i'm sorry mr funny sorry to interrupt this is the appeal my understanding is that both mylan and outcome relaunched their products their generic and da products that compete with the cold chris brand product so in the leavings in delaware your honor basically we had the preliminary injunction hearing and following that ruling that case has been it hasn't been officially stated but there's been no activity subject yes our position here on appeal is that the district court erred in concluding that section one point two d of the license agreement had been triggered by a earlier case in which is called the  westward case i'd like to go specifically to section one point two d it has specific language the language is virtually identical for both milan and outcome there are a few little differences but for purposes of the appeal i think we could conclude that the language is the same and the determination with respect to one dollar b would apply equally to milan and outcome westward litigation which involved a product called medicare there were claims eight patents that were asserted of those eight patents five of those patents were voluntarily court level i would direct the court to the opening brief in the mylan appeal page eighteen where we stated voluntary dismissal with prejudice constitutes an adjudication i would direct the court to the opening brief and outcome page twenty two where we again state a voluntary dismissal with prejudice constitutes dollar d requires a whole day where there is either a finding of not infringement or a combination of not infringement and invalidity in the westward case there was a summary judgment decision where three patents were adjudicated to be found not in french the problem which we say is how the court where is the court focused on only those three patents that were the subject of the summary judgment decision though i have one of the things that i'm sorry this is just pressed again sorry keep interrupting but one of the things that i recall judge andrews pointed to is the ramifications of the construction and you're asserting in other words i think he gave a hypothetical that well that means that you could search whatever or anything could be asserted and then if just one claim or one patent is withdrawn for any reason not just sara lee suggesting a nefarious purpose but for any reason then that would mean that the section would not be operative and he construed that is being really something that's up for gamesmanship and doesn't seem to be what is intended by the probation so what is your response to that my st response is your honor is that if you look at the license agreements what we're looking at one point today is an exception something has changed it's a limited exception it's a specific exception and so yes with respect to this exception which would mean a change in the status quo that requires that there would have to be a holding of all patents or claims of patents that were asserted and adjudicated so yes we're saying that there would have to be a finding of not infringement or a combination of can effectively really easily and readily make sure that this exception never comes into play and that doesn't seem the norm in terms of negotiating whether it's an exception or not that defendant which is not uncommon and that's why we gave the example of the thirty month stay a defendant can request that the dismissal have language which would say there is no not infringement and actually we have attached a patent that was at issue and that the remaining patents then continued to further adjudication so no it is not a situation where there can be gamesmanship there is a situation where the defendant this actually i don't think it was referred to in judge andrew's opinion but i think in the transcript he raised this hypothetical which is under your construction if they were a d j if a party filed a dk that resulted in  a judgement of insulated is it possible that the claim has not been asserted against a rd party with respect to this provision yes that question did come up on oral argument and hypothetically i guess you could have a situation where there would be no adjudication but i think the reality your honor is that in almost every case where there is a d j complaint there would be some form of either a counter claim back saying there was infringement or there would be an affirmative defense saying that there was infringement or that the patent is valid so in those types of cases even though a d j action was brought there would be the pat would be asserted by the virtue of a counter claim or an affirmative defense let me also i'm sorry i'm not polite your time but i just have one other question about you mentioned and i appreciate that i think at the outset that the two claiming the two cases before us involve the same provision and so that would i want to be clear with that necessarily dictate the outcome the same outcome in both cases or in other words if we can start construction of the license agreement dispositive and does it resolve both appeal your honor i think the language  language is the same and would apply equally to both milan and i would point out that with respect to the five patents that were the subject of the dismissal that adjudication was i know it's not in dispute or it's not an issue in this case i'm not bringing the matter but i'm just interested in what you keep referring to it's approved the last portion of the disputed prevention says any combination i'm happy to address your honor i think the st of all the purpose of the language is that you need a substantive determination of all the issues and so to the extent that there are multiple patents involved some harm case of this because i don't see that you're arguing that irreparable harm under the usual factual standards the fact that the fact that's that doesn't seem to be your argument here your argument seems to rest pretty much exclusively on your the provision of a contract which deals with the stipulation of the repertoire in my reading that correctly i would set a little bit differently d or one dollar were breached we believe about happened and so there is an agreement that there is a reputable harm unlike a lot of cases section one dollar goes even farther and it states again mylan an outcome agreed that we're entitled to immediate injunctive relief so yes that is in the license agreement and to your final let me let me just ask you about what you've just said so i don't lose my chain of thought which is so you're saying from our pharmaceutical who is our partner with respect to the brand generic product and yes there have been lost sales and there have been loss of goodwill and we have been irreparably harmed with respect to the improper launch by mylan an outcome with respect to their infringing admitted infringing and da products but still i come back to on an argument that they fire late at the agreement and the decision of whether or not the agreement has been violated is the essence of the scipio here so the irreparable harm stipulation only comes into play if we agree with your interpretation of the a creep i will agree i will agree your honor that sanctions that the one dollar sections are predicated on a breach of the agreement and to the extent there is a breach which  this and then i'll be quiet i promise but on the stipulation portion of it is there it's an interesting issue but do we have any cases that you're aware of we are in our view the courts decide whether or not there is irreparable injunction is warranted and is there a case where this court has said we are willing to read by and accept a stipulation from the parties and therefore invoke  this point and so yes and that's yes i know your bell has gone off but i've been not to life the whole time so i want to turn to judge newman and judge if they have any questions for you well my question is as i've had all along to make sure that we understand what the contractual is and understanding one of the parties where this agreement was but that's been something that's troubled me from the beginning your honor i was happy to address that thank you i believe that the language of one point two d was intended to be an that didn't happen and to the extent that medicare was known medicare did not change the status quo it was not kind of the type of event where milan or outcome would be unfairly treated by having to wait they agreed as in other provisions if of the agreement that there were st filers there they didn't they weren't going to be in the st wave and so what they're trying to do here is put the square peg through the round hole or the round hole in the round peg through the square hole and try to get out from under an agreed upon date so yes i think that there hasn't been a change of the status quo the status quo should remain the great upon date and one point two way should control and the mitigate a product which as you correctly state judge newman was on the market was known was never intended by the parties to be some type of triggering event for one dollar d and to the extent we have to get into the intent of the parties falling on judge priest judge pro scum and about where the delaware cases there is not been discovery about to that point and to the extent you have to get into either extra extrinsic evidence or parole evidence we haven't gotten there yet and so even though it's our position that one point two d is clear and unambiguous you know i reasonable people can disagree as to what it means i think the case should be remanded for that type from discovery our preference obviously would be for the decision to be make a good and be in the delaware court be instructed to issue an injunction but to the extent there's questions about intent and a proper construction in view of the parties respective content intent i think there needs to be discover he emphasized repeatedly that this is an exception presumably the view is this is a narrow exception so if it is construed as a narrow narrow exception why shouldn't it be fairly sophisticated parties with experienced counsel just as judge newman pointed out a moment ago who negotiated this contract and so delaware law teaches us and of course the law the federal circuit is no different that the starting point action yes there were originally a there's no dispute about that but by the time the case was being adjudicated there were three that is to cable dismissed five of them voluntarily and chose to sets and they're not permitted to do that and that's why i say let the starting point have to be the the words in the contract itself and the meaning of those words and by the way there is an integration course here  a twenty four where they said with respect to those five patents quote there was no adjudication at all in their reply brief c f number fifty six and pay seven they wrote the claims adjudicated that you know i have a well ask your friend about that only because that was i didn't call them on it but that was my recollection too so what do you understand dear contending that his position changed this morning so what's the cha for section one two and so that's ok let me ask you just so i just want to be clear on this let me ask you this is all a little mumbled in my mind but is that not is that what you argue is a different position right starting point is look at the language of the contract and you know that's why our position has always been that what you kate is trying to do is actually read out the words from the contract that say and adjudicate because out for themselves in the contract but once they dismissed those voluntarily then they are no longer service and the only relevant  you know faced with the plain language what does to take to argue they start making intense arguments is a stretch newman herself noted you know these are really intense arguments that are being advanced to try to persuade the panel that what the was made two years earlier that everyone knew about that no is being called on as negating the face of the terms that were in the contract how c reconcile that it would be different if a westward agreement came later it would be different if mitigator wasn't on the market but only as these conditions were already there and contract and let me just address and then i'll get back to medicare i'm going to address the ball with respect to whether one point two d should be read to cover only generic equivalents the only thing i want to point out is that the parties knew precisely how to do that in other subsections of section one dollar itself they did do just that for example one dollar b is specifically limited to generic equivalents so it's one point two in other words they knew how to do this but in one two d and then one point two g the parties negotiated and did not include a limitation on generic changes were very significant to the status quo i really urge that the st answer is if they want to put that much contract they should have put it in there and it shouldn't be part of an appellate court argument where they're asking it now to give some new gloss to the agreement again there's no such guarantee in the contract that the early filers to launch st it does not exist if the cato wanted that they should have negotiated for that and they did already that a reputable harm was found in that state but it was not on the basis of a stipulation there is not a single decision of this court or any other court that we have identified where stipulation as to a reputable har and that is right because he has not come forth with any evidence that could possibly support a finding of a reputable injury in the absence of that section of the contract and that we didn't breach it's not it's not relevant they do suggest some type of price erosion or loss of market share but there's no evidence in this record to support that zero well let me ask you about your  harm certainly if the parties went further than irreparable harm and contractually agreed that if they are found to breach part a then they agreed  that and effectively enjoying itself that would be appropriate they wouldn't be transcending the role of the judiciary if the parties stipulated to it that right so if that's true then what's the problem with them stipulating irreparable harm well st of all you're not going to persuade me to say anything other than you should be guided by the party agreement as a party but more directly to your answer judge may add just take take just a few seconds to highlight a couple of think that that came out through the discussion that we've had so far this morning if i may please have a minute or two yes and we will also several of course as you know one two a all the way through g e and none of these have any sort of primacy or priority none of them are really exception they're all set forth  seconds remaining in addition to the twenty minutes that i always had miss summers also talk about three minutes ok well i don't give you an additional five minutes mr will give you five minutes of rebuttal time mr fleming just to keep  waived or changed its position that could not be more incorrect and it was the reason why when i initially made my comments with respect to the five patents that were voluntarily dismissed  judgment decision did adjudicate the three remaining patents on the issue of not infringement the language of one two d however requires that you have to look at all the patents that look at all and as mr summers correctly says you have to look at all the words and all is in there and with respect to all the license patents that were asserted and adjudicated that includes eight patents there were holding not in french but i would direct you to page eighteen your honor where i say at the bottom accordingly irrespective of whether the voluntary dismissal is regarded as an quote adjudication close quote  preclusion purposes the voluntary smith and did not trigger section one point today since it was not a quote holding that all the unexpired claims of the license patents are either one and not infringed or a combination not purposes we said and repeatedly cited the levi strauss case an interesting way milan understood that and i would direct your attention to page fifty five of their brief where they actually make the statement to cater that regardless of whether a stipulation of voluntary dismissal has the effect of an adjudication between the parties they knew our position was that the that with respect to the five patents there was an adjudication that r d they want to say that you only look at the patents at the time of the summary judgment they called the five patents on a certain they're reading words into one two d one point two d is very clear that you need a holding that addresses all unexpired claims of the patents there were eight patents that were asserted and adjudicated we've consistently said that those five patents that were voluntarily dismissed