case number one seven dash two three zero five old no corporation beside you north american corporation at all and case number one seven dash two three seven nine corp v c and your north american know how for free panasonic cannot use our trans technological know how for free in order to affirm the district court's decision you must conclude that under both law and equity that this can occur the district court found that san you know under the party's contract and panasonic essentially under by disallowing an equitable claim could do just that they does not allow this the court must reverse i'd like to first take a deeper dive into trance contract claims against the district court's interpretation of the development and supply agreement  legal or for a number of reasons first it ignored portions of the d s a that expressly protected are trying to know how and made absolutely no reference to a product agreement we see these provisions in one point one one the existing property rights of not and also in provision eight point one nine point one and nine point three the district court's interpretation of the d also ignored critical portions of the g s a that expressly contemplated this exact scenario where worked together to create components of general motors q system but where the parties did not execute any product agreements these critical provisions are paragraph four of the d s a and importantly paragraph five point to rights are covered by five point two but i think you're arguing there may be other ip rights that are covered by the nine point three that are under five is that what you are going that's certainly one of our arguments that there being some requirement of a separate agreement or certain rights that i don't read if i point to that way around and i don't think you can and still give meaning to the two not the language that you pointed to products mean products individually identified in product agreements yes there is a definition there but there's also a language that i just read and four point zero which talks about parties preserving ownership rights and licensing rights to products that importantly that were developed or produced under this agreement but that are not incorporated into or made the subject of a product agreement so that makes clear so the one point definition defines products if a protestant remit is executed but there is no we can't read we know from basic michigan and most other states black letter contract law we can't read the contract so as to render that language of knowledge so the district courts conclusion fact product could only mean products that were the subject of a product agreement would do just that it would render that language which talks about products developed or produced under this agreement but not being made the subject of a product and i think that also answers your question as a five point two judge bush so it's important to understand if you look at the beginning language where the where has causes in the beginning of the d s a there's no doubt when the parties executed and supported to understand that these agreements the confidential disclosure agreement which was executed in early march there is a letter of understanding and then about a month later early april was the d s a so these were all executed in a very short timeframe when the parties were responding to interest from general motors that could benefit both of the parties we see from the whereas causes in the g s a that at the time the d s a was executed the parties anticipated a number of possible ways that their club ration could proceed one of them would be that nor tron could manufacture components or subsystems that would feed into the g m queue system and saniel would sell those to g m another would be that stand you might manufacture you see this in a where a saniel saniel wishes to manufacture products components and subsystems on a contract basis for not trying and that was really the scenario in which the parties would have executed product agreements where they understood that one of those parties  the contract uses the word supplier but we would be the party that sold the components that were a result of the collaboration to g m and the other provided them what happens here is that fan you decided that they would manufacture the components themselves so it's going to third of the way down the part is also agreed to license to the other party all industrial and intellectual property owned by the party it is necessary for the private party to make or have made such products and that's what happened here stan your decided after head  the interactive center stack system work in automotives which had some unique requirements such as a figure class when none of the competitors could do so that's that's why your honour's what you what the panel should do as a five point two excuse me  s the contract is reviewed to know as you as you should and conclude that in this scenario where there was collaboration that resulted in a number of parts being sold to g m that the ten percent license must govern and we see parties any technology or any parts that came out of the party's collaboration under the d s a i also want to make it clear it's important i think for the the court to have this context it's not that nurturing was just working behind the scenes and without general motors knowledge not trying to actually participated with danielle in the pitch to general motors and after that pitch and before general motors decided to give the business to stan you know stan you told general motors that it would with a touchscreen an automobile that no other provider could do so is there some place in the record that you would point we're saying you know actually told g m it was it was going to use the nurture and technology ye record its record entry to seven for dash to page eighteen and it's it's a deposition and it's one eighty eight lines eleven to only just places claims based soley on trade secret and here we know that our claim is broader and the reason we know that because again the technology that the know how that we're using or that we are suing over i secret that's part of the prejudice and frankly the waiver if the court reaches the merits of months for the reasons i've explained it shouldn't displace our claim but here it was really an eleventh hour defense that was at it right before trial and which we didn't have an opportunity to respond to so it's not that it would gobble up and make it impossible for us to recover from the breach of the possible use of trade secrets but it said if we'd known this and it had been raised in a timely fashion the case could have proceeded differently with some differentiation between those two but but really in this in this case it's completely appropriate for the court to conclude that this was waived because it was raised very late in the litigation right before what the party trial so then let's say is no barrier to the this was a automotive competitive bidding process try was attempting to convince that it was the supplier that should supply the technology that was going to be first to general motors there were other suppliers involved that mill was and was one of the it also might leave the issue in this case is not some abstract question about whether or not there's been some wrongdoing done to nurture and question that the district court answered the question that you must review is whether or not neutron was entitle to royalties based on its unsuccessful bid to become a supplier on this automotive country but aren't there more questions than that for instance even if you can say that the contract d s a doesn't apply because there are no signed product agreements would stand you be intitled to to show now that prototype fluids included discreet circuitry about the size of this impossible to use in an automotive environment the imo technology that we ultimately decided on the sides of a postage stamp perfectly appropriate for integration into the into an automotive environment my point is only this these parties knew how to contract to pain arbitrage not try to knew how to protect its rights and the way to do that was to get a product agreement they never got a product agreement so the contract is very clear there's no entitlement to royalties under the contract and that's what the judge helped by how do you deal with nine point three which  allege some wrongful behavior but rather to allege that it provides the right to royalties it provides no right to run to the district court found there are no terms of a contract in nine point three there not saying that i am saying there is no right to royalties under this contract and i'm also saying this that because the d s a sets forth the exclusive video call for not trying to receive happen sation for technology the unjust enrichment claim you can't sue in quasi contract for what you failed to have a remedy for under the contract it's a contract doesn't provide for this type of situation put on track provides for situations where there are  product agreements there's no explicit provision saying and there is still not be any unjust enrichment or that there should be unjust enrichment so why isn't the contract silent on that respectfully judge no patrick says there shall be irie understand but that if something isn't covered by a contract and yet the other side takes the technology hypothetically or should be an unjust enrichment claim it would seem logically let's make that time free if you look at the technology is treated in the very first page of the d s a and the words if you want compensation for your smart touch technology here's how you get you have to negotiate a product  these parties did negotiate agreement under which certain technology was purchased the prototype but beyond the prototype there was no product agreement so the question becomes well if they didn't do what they were supposed to do one of the contract can know you disagree with this hypo but hypothetically if stan you know in fact stole the technology because they could unpack it from the prototype they could use it in anything that they wanted to use it in without ever having to pay in our truck if it's hypothetically well but you're saying it isn't they didn't have a product agreement and therefore the contract precludes unjust enrichment if if they if the technology was taken by but the question of if they brought a common law unjust enrichment claim would affect that and it is a trade secret provision in that question about whether there's something more than trade secrets and all that kind of stuff which nobody really unpacked in this case right i mean that's something that we would send back to the district court well first of all judge let me let me say that what they have described as the nine technology things that they're entitled to customer funded what they described as essentially the assistance that they were providing in an attempt to convince us to use them as supplier in atlanta was providing us with assistance as well and so were a lot of another supplier i mean we we approached over a half a dozen suppliers there were three prototypes that provide this is not just about us naturally this is about us looking for the most appropriate  ultimately at the end of the day this technology was not acceptable that seems like it's a fact question it isn't the facts question though judge because there are the right to royalties is defined in the d s a check that box off they don't have a right to rule to use their the right under a quasi contract claim is barred by the patrick because it covers the technology or these other development costs that they say they provided it's within the subject matter of the cadre so check that box off no no no just to richmond in fact it's also a bar by moods because to the extent that they're making a technology claim and judge i will say this the judge below called their th case is a moving target straightener opinion in this whole idea that this is no longer technology case is ridiculous read the second amid a complaint it's all about technology it's all about smart touch technology that's the basis of their claim the only covers trade secrets is that right it covers any confidential secret information and to the extent that the information they shared with us is not half an actual secret it's not protected sosa justice harlan in the lurch case which we cited it to the extent that it's merely stuff that they gave us an attempt to develop a product and convince us to use them as a as a supplier of paragraph three of the d s a covers that so there's nothing royalty payments or would there be other remedies that wealthy people that's what they've asked for now they made they may stand up and tell you that there are thirty is different on that now two because it's been a moving target i will say this is your question judge bush about the claim  said warhol no there is no contract because there's no product agreement and suddenly they began to make this claim now panasonic is responsible under the anti side theory because because ultimately when we got to the point of trial the court said you know i want briefs i'm construction of this contract and that's what she took so essentially she asked for summary judgment briefing and ultimately resolved on that basis now there's one final issue that i want to be clear about and i don't want this to get lost in the in the process by the way judge moore yes this is a four year contract the district court found that it expired four years afterward states with expired april two evidence and trying to figure out what this contract means you know and the judge did it because the judge read the terms of the d s a and said look at the terms of the contract is crystal clear there's no contract provided does not provide the elements for payment of a royalty and that's the neural holding of the district court i might also point out that there's a subtle agreement out there that came up right before trial in which you are trying released us and  from the from use of the bird technology that they now claim we used right and that's another question that it is another question and i'm telling you the question is why didn't they give it to us before now they'll say well you knew about it in two thousand and nine right right parasites a large corporation i'm not used to representing large corporations mind you but better cites a large corporation and the fact that they did that they didn't remember this agreement in a i want to start by answering the record question that you had judge moore so we cited this document in on page forty four of our opening brief it's it's the so i guess i have two part answer so this is where this is a non depo document it's an email thread that began between it's sealed exhibit twenty five record entry two seven four four dash and that's at page twenty nine of that filed sealed exhibit twenty five ok that was an email thread where in the earliest interaction on that thread it was san you emailing with the g m and articulating that they knew that their third party supplier would would expect a royalty that was not trying more recent in the thread was that was forwarded by stan you know to the key person negotiating on behalf of explaining that they so our argument our strongest argument for a royalty under the d s a is based upon five point two which as i articulated before has to be read alongside paragraph four which expressly contemplates products developed and produced under the agreement that are not part of a product agreement and the default royalty rate is ten percent and that's the basis of the contract claim as to the extrinsic evidence the parties came to  the d s a as a whole what we were not allowed to do however was bring forth extrinsic evidence of the very type that i provided you with the record site which for which refuted their argument about an ambiguity they argued as you claim which is based upon the fact that panasonic benefited greatly from the know how that had provided just under the d s a and yet just like saniel panasonic paid nothing for the case should be