the first two the iranians finding a fact was that we hear and work we both understood at the time that none of the faxes offers acceptance of any of that witness for we did testify that he never seeing or thought of horror considered what section five point two meant until he was shown it by litigation counsel in this case you know knowledge of it at the time there's no indication he thought he knew there was a seedy place but he didn't know what's going on here what we fundamentally have here is what do you record with a cd a provision that no one at the time seemed to think matter of course affected what was going on what do you do with that now that it's been dug up and location and the question is you know what's effective we say essentially two things if that wasn't enough to comply with what was later for the country to be in this section this is a case where basically designed for the contract law  vision covered the joint venture the joint venture was and that this offer to buy things in the offer to sell it wasn't made and further at the joint venture it was seen as a as a different title a different why would the person read five point two of the ca is and is having anything to do with a single sales transaction refused it refers to such a transaction and that would seem to be i did not have the weight that i would think you would have to say yes so we can't you think we can't decide that five point two just doesn't apply i think you can decide that and by the way the fastest way to get delivery of the promised immediate delivery is if you send it to that is waiver when you manage your manifest intent not to insist on strict compliance with something you can't they come back and say oh yeah you were out of it because you didn't it's not question here of merck saying well we didn't object at the time it shouldn't infer from our silence that that we were affirmatively said here's how you do it some cases less than that suffice there seems to be an argument that well look in this case those were not sufficiently detailed because the distributed it's a potentially dangerous drug and so that just occurred said actually while the law seems settled and predictable that if you got these basic five terms if you're dealing with what i'm calling a potentially dangerous drug by the way we're talking about intentional supplements here that as a matter of fact in the september fourth memo dr martin had said here's how we're going to do it with that order confirmation you're going to send them a notice that they take this two kilograms at their own risk i'm sure you've got some standard language like that lying around from when we sent samples to people legally there's just no precedent for it whatsoever so what was the testimony here industry practice with respect to these other terms one and if you look at seven twenty nine starting line sixteen he's asked if you've got some working knowledge industry standard terms and then he goes on to say you have logical things safety liability there are many things all the sister trying to write is that these were terms that were in contracts as a matter of industry practice right she didn't testify that there was an industry practice that you didn't have a contract unless you had terms that is correct and you can see that illustrated in the very next question on seven thirty the other types of transactions are a focus on supply contracts and so forth  but fundamentally this testimony obviously wasn't aware that she was a part of his testimony didn't go to what is sufficiently detailed enough to be an offer in this industry it went to well course is not the same thing as evidence of industry custom should point out that there's we could not find a case where any court ever said that you need more than those five terms that were there and we're doing looking at the last case which is the one they cite for the proposition that look to the industry we should point out first of all that the last case didn't involve the question of whether you needed more than these five terms lakhs case said are not required in your particular industry it was not please go ahead and take a chance to see if you can say that in some industries more should be required to be an end to your rebuttal actually  please the court i want to start with something that you were addressing at the beginning which is this idea that a is a transaction and just note that once it has waived that argument on appeal well the courts of the save maybe the him but let's talk about the merits of it because on the face of it it seems to be somewhat difficult to read five point two as having anything to do with individual cells transaction it seems on its face to be directed to the kind of joint venture that was contemplated by the  say it's directed quite broadly towards all transactions between the parties which were current all different loves you read it that way well i would say that both dr coochie and dr who called to testify that they believed that this section of the transaction covered the section of the c d s covered all transactions and all the discussion here on its face what do we care what well i would say it's clear on its face it says a transaction and in fact in the district court's opinion at appendix page eleven was this such a a they're providing themselves with cover and section five point two for any and all transactions coming out of this and in fact if you look specifically at five point two it just says a definitive in a dream and regarding a transaction the such a transaction is referring back to that clause for such a five point two specifically says and this is that a thirteen seventy one unless and until such definitive agreement regarding a transaction between wieder and m has been signed by both parties neither party will be under any legal obligation of any kind with respect to such a transaction so the such as referring to the transaction a transaction noted in the beginning and i want to point out that at  eleven where the district court is ruling that this is a transaction he doesn't fact point to the fact that we are communicating about the transaction or about this the discussion called it a transaction why and then in the past that nobody mentioned five point two at the time of this individual transaction occurred pretty powerful evidence that it didn't have anything to do with the transaction well i think that would defeat the purpose of five point two five point two operates in the background for all of these discussions for example when merck and leader were proposing the actual global supply agreement for which there was a draft they were exchanging those drafts and having their meetings and communicating about the terms that they did and didn't agree on they were not constantly invoking five point two that's the purpose of having five point two in the backgrounds to provide exactly that kind of protection and i want to point out this is not a small transaction i disagree with that characterization if you look at dr blue cheese email is a five thousand what they might possibly do if in fact this indication of interest ever actually carried forward and was culminated in a definitive agreement signed by both parties watson's trying to do here your honor ultimately they're trying to get you to retry the case on the facts however they might dress it up as a legal error what they're doing is asking you to substitute your judgment on the facts and it's a noble fashion for that of the district court but it's not it's a no vote of appeal it is clear error is the standard and as you said in king instrumentals corporation if the district courts account of the evidence is plausible that's not clear error and i would say that in this case when the district court found that the c d a and five point two were in effect in september of ninety eight covering this transaction in question the protections were not intentionally relinquished the requirements of five point two were not met by the september ninth facts and that that same facts lacked important material terms and far the offering approve somebody responded with a signed purchase order no your honor i don't believe it would in this case we're talking about a definitive agreement signed by both parties are talking about a formal contract that both parties have signed and if we're would be an agreement signed by both parties i don't believe so restatement second contract section twenty six it's not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until  a further manifestation of assent dr martin made clear in a september ninth fax that this purchase order if it were to be sent would be subject to confirmation so there is a further manifestation of assent required so at best if there were conclusive evidence that a signed purchase order had been sent what we would have there is that that's maybe an offer to buy requiring a further manifestation of the sat on the part of merck but one thing is clear is that given the facts as they are now we do not have a definitive agreement signed by both parties or capable of being made such a definitive agreement signed about what our mean when they said that the order has been placed which what are you referring to there i did understood that in fact there was the intent to send a purchase order but if are there statements by the merck people of the suggest that there is there was an order there are some statements that they're relating what that watson i'm sorry what the reader had told them that they believed we had said there was an order to find it but again i want to point out that  have the burden of persuasion here to show that no purchase order was sent we have simply a burden of production which we have done watson has the burden of persuasion to show by clear and convincing evidence that in fact such a person purchase order would agreement is in the terms of the offer that's up for the product the quantity the delivery and the like and offer personnel under the on sale bar i would say not your honor in the district court concluded that there were missing material industry standard terms not just that there were industry standards there that this would be a contract without those kind of terms it may be that it industry custom to put those terms in to protect both parties but is there any support that there is no contract other terms like this it talks about you know price delivery quantity quality as the essential terms of the contract as a matter of general u c c law the fact that there may be other terms that could be put in doesn't make it not a contract wrong i would argue your honor that the u c c in the cases that watson's relying upon these are cases where you have so a so called battle of the forms where the parties of engaged in repeated conduct of sale and the question is now with no doubt that there is a contract in place in those instances because both parties have executed how do we now then fill in the missing terms that were overlooked in the course of that commercial that's exactly seems to cut against your argument that under the u c c you can fill in the missing terms by industry custom but in order to have a binding contract you don't have to have the missing terms including well i think there's no instance your honor in any of the cases that material terms when you have an unambiguous contract and you need to fill in what's missing you don't have an instance where you have promotional activity of the sort you might have seen in linear tax that would if it were actually executed result in the sale but up to that point it is not itself and binding commercial offer or a binding sale under one or two big let me see if i can clarify this let's put aside five point two and let's put aside these missing terms about liability intellectual property rights is there any question that there's an offer for sale here if we put those aside no your honor because dr martin very clearly can do the purchase order on subsequent independent of five point two or any other terms says that any purchase order in response to that fax would be subject to confirmation they would get really confirmation and put the contract that doesn't mean you need confirmation to make it at all no i would say under linear took a hypothetical supposed market i know this doesn't happen but it has a big schedule and it just sends it out as a bailer and says here's what price for all these different trucks you know this drug will offer at fifty thousand dollars per  this drug will offer a ten thousand dollars per kilogram and they publish that they send it out at the last e mail is that not an offer for sale of all those drugs i don't not necessarily are on right see now we're talking about a world like linear tech where this court said the jurisprudence is that if there is a requirement of a further manifestation of assent it's not an offer dr martin clearly said there it will be confirmation that further manifestation of assent makes the september ninth fax not an offer even if you throw out the missing material terms that even if you throw out the fact that section five point two came first and unambiguous lee frame these discussions the signatory to the c d s section five point two dr who called said that it required a formal after receiving your order you will get official confirmation of the order yes and dr martin testified that that was not something that it was that would happen automatically that it would require that they check and his testimony is irrelevant we're talking about the the the face of the document the face of the document doesn't say there's no offer until you get a confirmation it says here's our offer if you order something we'll send you a confirmation in dr martin make clear and again we were not promising that the purchase order would automatically be filled it's a requirement of a further manifestation of the sent the purchase order is it best in that instance an offer to buy then we're now in the world of linear tech i see it going past my time