on protective order before the district court we assume that much of that material is now says it needed no one has asked for clearing the courtroom or any other degree of privacy we assume that the arguments are unrestrained by our designations as to what is or isn't confidential that seems to be not irregular and what we also ask is that both sides go through your briefs with a very sharp look at the rules of the court and re designate what is or is not confidential that which is re confidential will not be included in any published opinion other than that the information which is there is before the court and it's at present any insurmountable problem to an which might also include questions of validity as defense and from what i've seen at least just the courts quite often proceed with the infringement case while reexamined spend court precedents such as for zathras is clear that the parties contract for arbitration is what governs the referral to the arbitrator in this case and if there is a risk that it is proper for the arbitrator to have jurisdiction over the issue then the stay is mandatory the district where does not have discretion is quite different from the reexamined i think to answer your question we really have to look at the contract and it's very straightforward the contract here has an arbitration provision that's in paragraph section twenty two those arbitration rules in article fifteen one fifteen point one clearly provided that the arbitrator is to be the judge of his own jurisdiction specifically article fifteen point one provides and this is a true and appendix can seventy one was the tribunals will have the power to rule out of own jurisdiction including any objections with respect to the existence scope or validity of the orbiter ition agreement so you have your view of that on that issue and i think i understand from the breach is that the case law clearly make the case law makes clear that that sort of shifts a satisfied requirement under the statute and means that there's a clear unmistakable and couple requirement that the parties then proceed their agreements do you want the district court to be deciding what issues are right but just here we got to my question just accepting that yesterday and as i said from the briefs i think your views about that a quite clear your br also at least as i read them so you could suggest that that is the end of the inquiry for the district court that's where the whole enchilada and i'm a little confused about that because i find at least some case law which suggests including dream theater dream theater sight another california supreme supreme court case we found a fourth circuit case and a first circuit case that suggests that there are two tests there's a clear and unmistakable past and then there's this other test called holy ground last i mean suggesting that there is an inquiry as you suggest clear and unmistakable but then there are some further inquiry by the district court that he or she can may do also preclude our  referred to arbitration imagine for example that the negotiators have a car accident a fender bender on the way out of the negotiations and then they try to bring the toward action and say well that's that's that's part of the contract too that's related to the convicted that that  ruled that the issue of a stop is arbiter of all because related to the past in this case as you know from the motion for judicial notice that is before you this case has been proceeding in arbitration a substantial record has already begun to be developed and the arbitrator has yet but we're not going to i mean that's but we don't expect a district court to the district court typically when they're making the cold the ground look analysis would you just agreed they make somewhat of analytical  case or something else they do make a determination they don't have the benefit of hindsight knowing what the are so when any of those cases it could hypothetically be that if it ever went to an arbitrator god knows what an arbitrary other but let let's let's focus on why we win even if the is an arbitration agreement does the parties agree to have the arbitrator decide the question of arbiter really we think he should stop there but if you were to go and we think the district court heard it in that or law below by confusing the or her ability which you just look to what as related we so easily satisfied even without the benefit of your you have a judge you have a problem that may or may not be true but the district court didn't do that so aren't you if if we accept if you accept and we agree that there is some threshold groundless patently wrong some sort of analysis is an incumbent upon us to send it back to the district court so that he or she in the first instance can make that determination and the second part of that question is and if that terminations ma isn't it really just an abuse of discretion review by our court on that determination absolutely not you run as a review here is the nova and this court is it just as good a position of the district court to make the decision on both the question of or for abilit did the parties agree to have the arbitrator to decide decided to depart that ability and is also dunno on the question of relatedness that is you should be deciding this in interpreting the contract is this a case arising from for related to the age through misleading conduct their own mission represented to us they would not us run against us that's an establishment that's clearly related to the contract your honor in two senses number one it arises from the negotiations leading up to the contract and the bridge to the equitable  stubble arises from the time the act of the negotiation and the fact that the contract is the basis for detrimental reliance easily satisfy the related to standard well let me follow up on that then i mean maybe it's because i was a labor lawyer much by prior life i having a hard time getting my arms around an arbitration of the stock whole question so maybe you can help me out on it by looking at what is hypothetically what is the arbitrator to do let's assume he's dealing with nokia was entitled to rely on the implicit or explicit promise that it wouldn't assert those pens so it would be you would have the authority to both declare and in effect enjoin the a urge as a matter of law and saying this was not related now the license issue is concede it by qualcomm to be related to the conflict we have another complete affirmative defense of stop would be a complete affirmative defense and that infringement litigation license would also be a complete defense point that is not challenged the arbiter ability of the license obviously that's related to the contract if it were licensed were not by a licensed under the contract with canada and french so they simply argue that that issue is moot because to proceed with the infringement question we think that's exactly the right question the asking the district court expressly were fused to state of infringement questions and that was subject to an abuse of discretion  quite broadly if once you get to the satisfied issue the language of the statute under section three seems to talk about shall stay the action so if an issue involved in a suit is wrong why you disagree that if it's just one issue it consumes the whole action whether we think that's fair or propose a policy matter good or bad i'm reading that's requiring that why am i wrong  other contacts in which the the question presented in the statute is not a question of our but ability here section three the text of section three could not be clear that this court is required to  the issue is referral to tradition the number of cases of hell consistently required that this is not a who decides issue this is a question of under section three to the court properly satisf arbitration some of the cases that have have reached this conclusion the britain court case from the ninth circuit i believe footnote eight states that the district court is directed to grant a stay only when it has determined that the issues to be arbitrated the ball the case which is cited in our groups also holds that the court is required to determine the scope of the arbitration agreement and the boston telecommunications case also cited  court and ask some judge to construe the agreement under some contract agreement right if it's out of the case it would place the arbitration agreement in the incorporation of the aaa rules in direct conflict with section three arbitrator does that and the district court doesn't do that and that was in the section that's in several cases none of which are section three cases none of the cases in which the court has reached a conclusion or ones in which there was a statutory obligation  inquiry there so the principle that we're advocating here is that with respect to the statutory in four years provided under section three are searching for records always routine that responsibility to  waiver test which is that it's a groundless claim or perhaps all claim which some other cases refer to so is that what you're talking about or is that in your view do you agree with that view that there's there are really into tests to look at  particular any kind of takes doesn't the court when there's an arbitration agreement that's been raised doesn't the court have to satisfy itself at the party it doesn't the court satisfying itself require that he determine whether or not the parties have clearly unmistakably determined that these kinds of disputes should be before an arbitrator i mean that doesn't seem to me to be an extraordinary proposition that that's what the court would do and if the court so is it your view that we at motion send it back to the district court to determine whether if we were to conclude that the test is sort of a groundless test in addition to the clear and unmistakable waiver test that we should send it back to the court in the including whether to stay in the remaining ten infringement issues and so forth or abuse of discretion the license defense issues or is a manufactured dispute that fails on a case or controversy that litigation of your stock will be licensed offense issues should be stay pending arbitration the scope of the state is probably limited under the labor and mediterranean enterprises to those issues that are actually refer are there is nothing to send back to the district court the district court heard when he peek behind the parties agreement and look into the question of relatedness or connectedness i can quote from the anderson decision when a court concludes that the parties clearly did power an arbitrator  to the question your honor of whether we should stay the whole proceeding while the arbitrator decides an issue is a license and stop what we respectfully submit that yes that is the correct approach the district court should have stayed the whole proceeding let me see what's a why first the license issue is if you are right that there is a license defense department's current suit that should protect us against the burden of all again it's not a defense to be decided later it's a complete affirmative defense and we should be entitled to  position of these various claims court cases that we've all been reading of this and do not apply here because they are no i'd u s c section three case what is your response to that your honor we respectfully disagree entirely with that position the only difference between section three and section four section four is about compelling arbitration that's not at issue here because qualcomm has submitted to the her betray sion and so we didn't have to go to the district court see compulsion under section four the substantive standard is no different just as prior writings in the