court there's the rub there is the room and we have a situation like the cut of the heart because i'm highly sympathetic having settled cases in open court myself and in this case you have the district judge before whom you appeared announced your settlement on the heels of the prior settlement yes so we've settled the case and the judge then terminated proceedings making it clear she thought all things were done so given that there ambiguities in the record as to what you all had agreed to what's our position as a public an appellate court to look over her shoulder and say we can understand better what the parties must have meant and resolve the ambiguities contrary to what she who was very focused on what all had gone on  she had before her including your may tenth settlement paper in the injunction and all of that what are we supposed to do as an appellate court to second guess that i think i would answer it first that your review is under an  and we both take the position that there is a full complete and final settlement and the only issue is does it extend to all claims that could have been filed or could put it under thirteen rule thirteen language does it apply to you referenced coming here that was referenced coming into making a presentation to the district court and i fully recognize that and we have this sort of in congress in the other settlement because you have the language of that dismissing shall be construed to prohibit it from asserting its patent rights and from taking all legally permissible snap steps necessary to protect against alleged infringement of c r c's actual patents so we have in that other settlement  during that period of time when infringement occurred is that is the one that holds the cause of action and c r c is the one that was not a party to the prior release now i know that there is to the c r c is used in two different  but in the release itself the releasing parties in the other settlement were could have been filed and when you get into the niceties of patent law that becomes a pretty significant issue what i'd like you to address is judge bolton statement it is inconceivable pretty strong word under the facts demonstrated throughout the course of this litigation for anyone to reasonably believe that it that in agreeing to the settlement c r c could preserve a right to bring a claim for patent infringement that could have been asserted in this litigation but was not this is particularly true in licensees who subsequently transfer their rights or lose their rights still have a right to enforce their patent obligations and if that's if that's an issue with  ignores what's in the introduction it ignores the fact that the potential counterclaim which is way beyond the release that could have been obtained even if they had gone forward to trial could any patent infringement matter of any kind been preserve it in the litigation that was ongoing now you're telling me without any assets you want to start another case that yes that's exactly the situation that that c r c has a right to do because  had a basis for such a playing and if a lawyer and a rule eleven could in good faith files that you claim that complaint would have been compared to what happened in this case to see if the issues were inextricably design of their product and they have jacked it to and said it's irrelevant i grant you that have had it been known and had it been available it could have been a sort of as an affirmative defense i would suggest to you that it would have been an human nature that they didn't try to establish the fact that in fact there was an infringement on your client just went off for saying need these things were infringed and they didn't have any proof well  position really to come forward with any more than we did come forward with but but i would hope that that's not seen and that the distinction between there being a patent infringement and that if and the party being able to permit the patent infringement would be recognized i'm i hear you saying is you're trying to preserve the option to do something that doesn't make any sense for you to do well if i could if i could recast what you're saying now which is i do because i don't  eleven and evidence we don't have any but so you're trying to preserve something that doesn't exist well and it may not ever materialize i grant you that are you saying it couldn't have been brought could not have yes well this settlement agreement does not bind you through any future infringements so you're concerned about whether you're going to find anything that would give you would have given you a basis to bring up that infringement insisted on this provision as you know i think that's why the judge said since conceivable you're trying to protect something that i don't find anywhere in the case but you know it's the trial court and you are you're not privy to all of the communications that we have with the client about how that particular day which was the second day of trial and and i accurately restarted for the court what we had discussed concerning the payment of money and the dismissal of claims  judge bolton at the commencement of her remarks stated that she wanted to she wanted our settlement on the record because she didn't want us to come back at a later point and resume the any aspect of the litigation mr cleek and in response to what i restated on the record then said well we're talking about all claims so i the best that i can answer is that i accurately describe what we had who are you saying you didn't agree on the element of the settlement that was then added by the judge we did agree to that element of the settlement and i think you have to go a little bit further so look at how the intention of the parties was was determined by the judge how the court arrived at the conclusion that the parties had mutually intended there to be releases and part of that i based on the criers settlement and i think that there is a a significant threshold issue that can't be overlooked here concerning the prior settlement  that's settlement involved optus and who was the patent holder and in that settlement agreement there was a release of any and all claims that could have been asserted so as a threshold issue here i'm that the parties intended to terminate their longstanding controversy concerning this issue of patent infringement will not wait a minute you're saying that the license or patent holder had released its claims to assert any patent infringement against anyone and it still doesn't have any rights to assert any patent infringement right so so therefore from the perspective of my client it was really really a non issue that this was something that dr and you didn't see consider the need for release from stuart see with respect to whatever had been reserved in the stipulated injunction because you didn't think it had any effect that's the if that's the solution is if it and document all should ever files a lawsuit bring out that other release and say you're bardstown you know from doing it but we weren't in that fight we end up in a fight over this re our law clerks what should have been done i don't think we have somebody somebody should have said subject to reviewing this in writing or something like that but you know in looking at these motions and force cases you do see lots of cases that talk about this the subject  final written approval exactly you know and frankly we should have done that and i'm sure we both have talked to our law firms about that in our state house e l e c but that aside my client feels like he's been deprived of something  whether that ever materializes whether it ever really has value is that is another issue for another day for another court and we submit that this this court judge bolton abused her discretion by standing that far i understand why she did it principle of c r c believes there was a patent infringement even though he has no evidence of it well and if that's if that's the case then they should come forward and say it and then dr van dellen shaft can be confronted with it at the time of the settlement and say dr if you want the case title he wants a defamation case settled here's one of the terms and that's why we have these things in writing that's why we announce an open court and what the court should enforce