deference to the district court in fact because this was the grant of summary judgment this court is that it gives no deference to the district court and reapply for the same standard as a district court on summary judgment one of the most important patent same companies well the company of not to sue is rather limited it relates to one patent the settlement agreement is exclusive license which is quite different it is limited in other respects they seem to me to be like different in the standard is not whether the two agreements are different because that's an  impossible standard to reach if you have an integration caused by but it's very nature it says all covenants that pertain to the same subject matter so that's the question what is the subject matter and the subject matter is the rights under milan agreed to settle the entire case the whole umbrella and within that was subsumed the two thousand and six agreement that said it's all all cut that's what that's your argument but the settlement agreement doesn't explicitly say that the two thousand and six covenant was revoked that's true it does not say that and that's the real problem for you and for us isn't it to determine whether the intent of that later settlement agreement which i think the district court correctly notice both bro at the integration clause alone i think there were parts preached generic integration clause it doesn't answer the fundamental question which is does that later settlement clause intend to revoke the prior covenant and i have a hard time i think how they're corrected at the same subject matter because again they cover that address to specific patent it was a lot agreement not to sue but it didn't give a ability  license where the later settlement agreement was for ready the whole portfolio patents including the two that were it should have the a a but gave a further ability to license but in a much narrower market why are those just two different distinct subject matters and i think the court is drawing the fine and subject matter to merrily and and on summary judgment especially witness what is your view of what the subject matter of these two patents are these two clauses are the two clauses related to the exact same power and aren't you drawing right to marilyn when you talk that way because they don't relate just patent the settlement agreement relates to how many like six or eight patents so aren't you drawing it too narrowly when you want to focus only on what it said about the ninety one dollars pipe patent and each agreement here again so i think we still have to look at whether the settlement agreement in two thousand and seven is talking about the same subject matter or different subject matter right and we're looking at what the parties and pounded on that and i think t e look at what the parties intended the other side agrees that for example drafts of the son of man are subsumed with an immigration policy even though they're not reference specifically for many patents who are included in the settlement agreement i think it's that doesn't  neither of you explicitly said what was going to happen with that covenant not to sue you could have easily written that into the settlement agree that and said either it's riposte where d it stays i tried to revoke it why didn't you put that in the settlement agreement i mean in my experience when you have a broad clause if you start adding limitations or specifics to it it's interpreted sometimes more narrowly if we say all companies isn't that broader than just referencing a single company yes but again it doesn't say all covenants with regard to anything it says with regard to the subject matter of the settlement agreement which was a dozen patents as you say and a limited li have any l s i the united states market well it's also just with respect to products that the previous quote previously or presently made used or sold so it's a limitation in the sense of the products as well but that's a limit that we shouldn't they there are in the subtle men agreement the monetary payment the amount is confidential although i think that shows that  certainly an incentive to decide on a case i mean back was against the wall so to speak so they definitely paid significant consideration both monetary only and are motivated then to modify the terms of the apparently he didn't have enough belief in its ability to not give up the right to sue on it earlier and all that occasion if they already have their reading about the record too i don't think so i mean i don't think any of this is useful in trying to hypothesize about what the parties d intentions were because that's all isn't that st of all it's not in the record and it would be all evidence anyway what we're d looking at is these two different clauses and determining under what i think is  well because the later settled that gives them the d additional rights not only got a pseudo of it but to license it in an exclusive market so d it is giving them an additional right that they didn't help from the two thousand and seven isn't that exactly why they might have wanted question isn't that where you have to draw inferences when you're looking at what the parties intended from the agreement i think you have to draw the inference of what they intended in our favor contract interpretation contract interpretation is that is a matter of law in did they still in agreement modify the the two thousand and six agreement in any way no it doesn't and the two thousand and six activity wasn't an agreement was a unilateral covenant not the s filed by milan in which that right the right to sue changed in any way by the solon agreement the terms were certainly changed in the two thousand and six covenant not to sue it covered  which only comes to reinforce the fact that there are different terms it it yes but did it affect the right to sue well and certainly in the settlement agreement in the event that mohan did not sue  ride but it does address the right to sue that's a subject matter that the two thousand and seven the two thousand and seven agreement gives the subservient right to sue but under the a on decision which is a two thousand and six appellate decision from illinois which we all agree is the law that controls here it has to be same subject matter and same terms and the district court in this case went through the agreements and compared as i heard your honour's i can tell that you've looked at these there are some rights that are the same there are some rights that are different but on balance they're not the same subject matter and same terms and if you look at the four controlling cases here on this record we have a on we have midwest builder we have illinois concrete and i guess the other case that three to four months of negotiation and we want to put an integration clause in so later we're not arguing about parole evidence in this case we're not dealing with that st scenario in their opening brief that was the case law they cited what we're dealing with is extinguishing a separate under illinois law that's a big deal because we have distinct agreements and we're going to have a subsequent agreement with the wheeler plate integration clause and want to wipe out something different under illinois law that's a heavy burden under the i mean yes i get your point but clearly both know about the two thousand and six and it would sure made it a lot easier for everybody if you would explicitly d address whether it was going to stay active or not given that you were altering certain terms about what you could do with and imo i agree that if the parties so we're trying to get to the intent of the parties i heard my friend across the aisle say that i agree with that it's the intent of the parties if the parties intended to extinguish a covenant not to sue that was entered into in the same litigation a year earlier it is impossible to believe that the negotiations lasted for five months it's impossible to believe the two sets of skill lawyers who apparently allegedly according to their theory talked about extinguishing a covenant not to sue in never mention it would not happen and that's what the district court judge said it page eleven appendix eleven of his decision he notes as kind of his final just kind of analyzing what happened here he said it's ways in our favor the fact that if two sets of skill lawyers in a litigation intended to wipe out a company not to sue even assuming legally you can do that because it will forever yeah i mean you started off with that didn't seem to suggest that you couldn't but of course you could can you do it during the course of the litigation they are free to do you know a significant consideration and said ok wait earlier the litigation we gave you this not to sue but things have changed we want to give you all these other things if you get this i mean that's the agreement you can make can't you d be half your client under supreme court law in this court's precedent to defeat declaratory judgment jurisdiction case doesn't turn out because the court the district court found that the subject matter was not sufficiently aligned and the agreement agreements are different but i think it is interesting from a matter of declaratory judgment jurisdiction if you have to have an unconditional covenant not sue whether you can revoke it later but i'm not addressing that what i would say what the district court said is it would have been mentioned so that that is a factor that weighs in favor could not practice outside of that area the two thousand and seven agreement only allows under the dozens of patents that were part of the global settlement to practice with in the can attack market that's correct your honor well how does that not affect the information that we broke the two thousand and six agreement comin in not to suit because it under under that that agreement will had the ability to practice the panic work under the two thousand  covenant not assume that only applied to need x existing products all products for the one hundred and fifteen and seventy two dollars sacks are so many work we could practice them anywhere that's correct and under the under the under the settlement agreement that was limited to the to the king the take market well the covenant not to sue was never mentioned so i would respectfully disagree that that covenant not suit was limited it was never mentioned under the two thousand and seven agreement the changes to the ability to practice the pan and none will fly and was limited to the kinetic market under the two thousand and seven agreement need i got the additional opportunity to sell future products into the limited kind of tech market that you didn't have the opportunity shell anywhere i mean to practice append if we were not with future products we didn't under the covenant not to sue for existing products we did and which is why we're here our client thought and still think mean it comes down to whether we see th agreement doesn't revoke that but gives you additional whites to practice with regards to new products and also to license with regard to new products in a limited market and your view is those are the new terms those don't displace the or is it just it is fair as the district court found the agreements are broader and narrower in various respects under the controlling law of illinois which the district court judge carefully studied and applied a and says it has to be the same subject matter seven agreement even in your scenario though need at got the additional rights to sell future products in a limited market so you'd still have an interesting question in your hand i don't think it's nearly as interesting on this record because it was dozens of patents is part the global settlement and i would ask the court to look carefully at the the midwest builder case because of them and that case there was a subsequent contract and they found part of the terms merged and another and the part that was not merge were the rights that were listed in the other contract i don't and that case there was a a credit application and the credit application had to two types of phrases one was penalty provisions if you breach the other was payment provisions and ultimately the coo were found merged the payment provisions because the payment provisions identically were in both the st contract and the nd in the  contract there were penalty provisions if you breach you get terry's fees and costs the only way a court found that the penalty provisions were not merged because they weren't mentioned in the nd contract as to the yes your honor the covenant and the settlement agreement both relate to the same nucleus of operative facts that they not came out of the same transaction litigation they came out of saying litigation for sure your honor so i the same subject matter i would disagree because litigate this litigation involves three patents and then the ultimate settlement agreement involved a lot of patents when even in litigation but most of the foreign patents right well  in the settlement agreement then somehow the lot changes with respect to them i went to one of the plans for the nine hundred and fifteen i would i would not have said it i mean i think there's a lot more to the argument than that as the district court found there are there have your honor that talks about the subject matter of this agreement the parts about it says there are no representations promises or agreements pertaining to the terms or d subject matter so they do address that the the terms of the agreement they're saying terms or subject matter this agreement whether expressed replied that or not set forth in this agreement but i think that's the the issue is the subject matter and that's what the disorder but you're arguing that  could make existing products across all products under those two patents without being sued if we get to the covenant not to the excuse me the settlement agreement that had to do with a number of patents the ability to sell into a specific client basis can detect market as it was defined in the exchange of some money so that the terms were were substantially different it just points is that to determine the subject matter of this agreement you look at the agreement which covers more than the nine hundred and fifteen that correct you have to compare the agreements and the eleven dollars thing i would like to add is i do disagree that there would be any inferences in the context of this of this case it was a  address the exact term of it has to address the more general broad subject matter in a on under illinois law says same subject matter and terms here i don't think the terms are really that close at all there  or i think it's a philosophical question i understand your honour's point i think it's a philosophical question in that the same subject matter when you're talking about agreements are the terms but i don't know that this case would turn on that distinction the subject matter is the terms and there has to be a substantially done a calorie of the terms would be my position that's you what we're trying to figure out is did the parties are these agreements sufficiently close that we're going to assume because of a boilerplate integration clause that they intended to  i realize i only have a couple of minutes but opposing counsel said that there are no inferences here but then he talked about common sense being that two sets of lawyers would not have come up with an integration clause without specifically contract away those rights in the same thing with with the terms or subject matter parties contract that that so if the agreement had to be the same terms or be no reason for an fat i think that's one complement of an integration clause and another is set forth here there's a nd clause to that which talks about covenants if they wanted to if these if they wanted these rights to continue in the covenant the respectfully for both counsel neither of us were involved in this thank you thank you we will