well we're ready whenever you are thank you good morning and may it please the court the district court made two fundamental errors that require reversal number one the court determining the open terms here there was not only an agreed upon method for determining the open terms that method was in fact followed by w s u to develop a uniform set of licensing terms for all industry participants there was nothing left for negotiation no further meeting in the minds was required by television says option entitlement to those uniform licensing t number two the nd fundamental or the court ruled that there were no triable issues for the jury because it refused to consider any of the strange accounts of this judge raina i'd like to are one of the terms of that separate contract the terms of that separate contract are the uniform license terms washington state developed and approved and connection with making the apple available for like something that's exactly what the washington state officials told by television during the negotiations of the contract that's exactly what wash state's existing custom and practice was at the time the contract was executed and that's exactly what washington state did in the course of performing the contract it's also per washington state washington state university thirty six witnesses it was you seem to want to be describing perhaps aspirations of the party at some point in the future but i  are promised under washington state law and under the restatement of contract commercialization so they send out an announcement of opportunity and fight teligent gets it and everybody else can there's nothing wrong with what they did and others responded and five  as it seems to me they had every right to do to proceed and get this contract and get everything going and then years later by teligent comes in and says no no no they want them to do what they in the world of contracts that they for years passed w s u was proceeding as i think you would agree it has the right to do and it has to do everything it's done factual details are critical when ws issues its announcement of opportunity the announcement of opportunity is seeking a manager of the commercialisation u that our technology growing trees in tissue culture is unproven and will have to go through four to five years of field trials not now that's at odds with the contract which hired us to propagate trees in tissue culture it's also at risk with ws use contractual arrangement with the people it favors and then both of those entities at all times have been permitted to grow trees in tissue culture so it's a fight teligent only position that's obviously inappropriate and they maintain that position from about two thousand and fourteen until two thousand and seventeen where their position changes slightly but if i may might return to your st question the announcement of opportunity expressly contemplates that whoever responds and when that is going to have to offer  that language means is that if ws you made this apple available and at the time if it made any cult of are available in a process and which is developed uniform license terms it would make available to all the participants and its licensing program it does not negotiate individual licenses on a bespoke or individual basis with licensing develop a uniform standard license and that license is what's made available to participants what this language does is in order to act or size the option not to have the option to exercise  circumstances a fully integrated agreement the deem done in big us even there under washington state law extrinsic evidence is always admissible to determine what the parties meant by the term they used that's the berg's case it was affirmed in the st case and many other cases in washington state this circumstance that evidence makes clear that the part understood that separate contract would be the standard in uniform life and developed by w s u and made available to all of the industry participants and what's critical to remember is that's not simply what washington state told by television starring the negotiation although it very clearly is that statement has also been confirmed it's consistent with washington state's existing custom and practice what mr fat g told mr larry was the truth is in fact how washington state did business with respect to its likely program secondly it is also precisely what washington state did going forward after the execution hare and this point in the factual record reference of the prior question after the announcement of opportunity after the responses to the opportunity came in there's a washington state university respectfully your honor what the birdcage hold which is confirmed over and over again including in the st case is that in washington state extrinsic evidence is admissible even if the language of the written contract is deemed unambiguous it's always admissible it must be considered once it must be considered and that if it relates at all to what the parties understood the terms to mean that it creates she ation custom and practice proceeding execution the course of performance after execution and the admission of w s u after execution all of those must finish answering the question thank you when that statement was made by teligent responded by saying we won't sign the agreement under the circumstances that that statement is inconsistent with and contrary to the tack to the agreement we won't uniform term made available to all participants and at that point psychologists would be entitled to a license based on those terms and everything ws you did sense that point including the announcement of opportunity was consistent with those statements phycologist is entitle to that license per the contract and it was legal error reversible error to refuse to consider the evidence and define the contract and on a forceful agreement to agree that process goes to marketing development effort on a business level efforts to maximize profits with respect to the least a license the terms by which licensees sell the apple are uniform and they are developed and approved by w s u in advance and made available to all participants on a standard basis and so w s u form options the use of those languages the option to participate here by granted those are all consistent with that existing customer practice and we're all confirmed by the subsequent course of conduct as there are thirty six witness admitted repeatedly and drafted a letter instructing their agents to comply  honor i don't have a it's i don't have an explanation for that the it is quite true that washington state university did make clear to fight televisions lawyerly asked what does this agreement do it gives back again it sent back the e mail that judge raina read from saying there can be no guarantees we don't know how this will know yes that's correct and it also goes on to say that they have to sign a separate contract and so it basically is an agreement to agree it's a statement that they that a made it's proved and that is correct that it's something that the parties would need to negotiate on and reach agreement on and it's not something that can can be enforced and that it didn't spoke repeatedly about the context rule in the bird chase but he is going far beyond the bird rule the washing supreme court clarified that more recently in hurst versus seattle times  the context rule is a narrow the rule allows extrinsic evidence only to determine the meaning of specific words and terms used in an agreement for example in berg the issue was what did the term gross rentals mean in the lease agreement and verbal bird court allowed extrinsic evidence to interpret that term here by contrast fi teligent doesn't offer extrinsic evidence for that limited purpose it doesn't offer that explains the evidence sheds light on the meaning of some specific word or term in the propagation agreement such that it shows that the words separate contract means a license agreement having all these different  so so the contextual doesn't help and now the other way that reason why the court was correct to exclude extrinsic evidence is because it's not it's inconsistent with the written terms the written terms of the propagation agreement impose an overt quire ment's on w s u at all regarding the provisions of this required separate contract but w s u has complete freedom to bargain for any provision it wants in a separate contract and to come up with those provisions in any way it wants to the fight the strings of evidence the fight teligent says offering is inconsistent because it would substantially limit the freedom it would require w s u to follow a specific process to come up with the provisions and then offer the provisions that result from that process to fight televisions and this inconsistency and conflict is clearly stated in law release propagation agreement fi teligent would have the option to acquire a license and so the conclusion was that lawyerly said with the assurance that fi teligent would have the right to a license to commercialize was thirty eight if one became even though kelly told lyerly the draft written agreement would allow it so what the situation here is just like the one in m rich versus connell that's the washington supreme court case involving a lease court found was partially integrated the written terms of that lease allowed cancellation on one hundred and twenty dollars days notice the trial court found the reason oral agreement that the lesser could not cancel until the property was ready to be developed analysis applies here the other point i wanted to make is that even if the extrinsic evidence is admitted it wouldn't save the propagation agreement from being an unenforceable agreement to agree because it wouldn't when he says that kelly says what anson fat ones told him that's not true that he doesn't actually quote any statements by by fat when he just says that he got an understanding and he said he received assurances but there would be an internal process w s u to decide how to commercialise and to develop the set standard terms but lyerly didn't explain didn't describe any statements or conduct by kelley fat linder others that gave  that understanding so all he's attesting to is a subjective understanding on his part and that understanding doesn't show an agreement by w s u and then another part of the  kelly and fat when assured him that fight ellison's would have an option to acquire a life and some standard terms but again lyerly didn't quote any alleged statements by kelly or fat when provided that assurance so there's no admissions shows that there is no breach of the alleged oral assurances to lawyerly so even if the six friends of evidence were allowed in the judgement below can be affirmed on wouldn't prohibit w s u and p v m for making membership and a requirement for a commercial license and lawyerly didn't say that the alleged oral assurance was that w s u would develop standard license terms flynt st even in the hearst case which washington state university contends limited for the court stated in byrd quote we adopted the context rule and recognized that intent of the contracting party cannot be interpreted without examining the context surrounding the instruments execution the extrinsic evidence goes to specific provisions of the written agreement  so what it means to grant in the moment to here by grant an option to participate in commercialization if the apple becomes available for licensing is taxed the extrinsic evidence goes to prove the nd attack the propagator will need to sign a separate contract to exercise the option what that separate contract is that tax is subject to prove based on the strength of evidence it was expressly discussed in the negotiation of the agreement the argument that by teligent position is inconsistent with the writing because the writing supposedly gives w s u unfettered discretion or complete freedom to enter like using arrangement simply wrong it doesn't when i make a contractual commitment to give another party an option to participate in my license and program i have restrained my freedom i am not free to disregard that language treated as if it doesn't exist later sure everyone it meant nothing and do something else that argument is what's inconsistent with the writing and to go to the e mail that we've discussed where w s u officials intermediate officials suggest the writing means nothing number one again that position contradicts the writing and number two the evidence is clear and must be accepted as true that psychologists responded by saying if act can't be true we are not entering this agreement based on that understanding and any response at paragraph twelve at appendix six hundred and twelve it is clear  and aston assured me that by entering the propagation agreement would have the option to acquire a license on the standard terms if and when such a license becomes available close quote that's not a subjective undisclosed statement of intent that's what was told by teligent in the negotiations and the critical point here is that that's not the end of the story that representation per their own thirty six dollars witness was true us a license on the same terms the other licensees were operating under now to get to breach very briefly with the limited time breach wasn't a subject of their motion it was not properly in the record they raised it on the last two pages of you an option but on the other hand we complied with if they complied with it it would by definition be certain enough to be enforced particularly given the principles that require the court to search for an forcible agreement when the intent to grant an option is manifest lastly the idea that we the breach will strike that the idea that they've complied because the offer was conditioned on membership in an i be accepted by and i had a time when i simply wouldn't accept them so it was a sham had it been in the record had a motion been made there are myriad tribal issues our option was obliterated by that requirement there was a moratorium in place preventing us from joining the contract we're entitled to is that contract is in the record it could not be clear that one hundred and seventy nine t ninety three dollars we would be happy to be members of an i and then i and fica and w s u would permit it and w if you knew as they admitted in deposition that they were obliged to facilitate