good morning may it please the court in rare cases a federal court can enter an anti suit injunction in order to virus a party from taking some action in a foreign court because of and i see the injunction although nominally directed to a party in fact operates to restrict what of the court of a foreign sovereign can do i think to interrupt you in your line of thinking but i just have some process quite of questions to start off with sean i know both sides respond to time appreciate that to any decision on appeal from the chinese court any other updates there's so much litigation pending in china or whatever any other updates in terms of the timing whether anybody's decided it in the second part of the question as i know you don't know but there is there any sense for how these chinese course operate what might one might get an a decision on appeal let me take those the second or the last question first the honest answer is nobody was the oral hearing in the the appeal or what's called the second instance proceeding and so it can be a matter of some months after that but just as with decisions from this court or any court you can say well the average is three months after argument but if you know the range is quite expansive and i'm told that in rare cases the second instance court can in fact call for a second hearing if i have matching if something comes up in their deliberations so the answer is nobody knows  that the right name for him i think that's correct and then there would be the right to have a stay if it was sought perhaps perhaps but it's certainly not automatic and and that the injunction absen some sort of extraordinary order like that would be enforceable at that point the other as to the other chinese litigation your honor it's the different cases are in different stages there are so many because the rule in china is you can you can only file one one patent per case so if you have twenty patents you have twenty cases and there's also and there are parallel invalidity proceedings invalidity is not decided in the infringement case as in some other countries there is a sort of an administrative sort of seems like a reexamined i p r type process that evaluates validity in china and all of those proceedings are in various stages involving different other patents and the true that were decided here the other update i suppose is that the in the us case the british reported that the trial was to be in december this month it's not going to be in december the earliest possible date is april first and that's contingent on another case set for trial settling before them otherwise the trial they will be september third so let me ask you just going down to them the stones what is the what if left before the district court to issues that remain for trial are both sides have have alleged infringement of certain us patents by the other side suit you basically have a standard french mint type case then there by both sides to have also alleged breach of contract by the other party for failing to comply with their friend obligations and that's that's sort of a yes or no proposition at this point either your conduct vialli if your friend obligation or or your kind of didn't violate your friend obligation why ways original complaint ask for it it actually sort of parallel the microsoft case in the sense that it asked for essentially asked for a friend license it so i declare the terms ok here's my question and i don't necessarily understand is even if the court is not asked to come up with the specific rate in order to do a full some breach of contract analysis which requires determining whether in this case each of each party had submitted fair and reasonable offers there has to be some sort of number that the district court or some sort of range just a court comes up with in order to make that assessment even if the parties aren't asking for specific rate am i right about that i'm not sure that's right your honor because i think well i think the overriding question is has there been good faith a good faith attempt good faith negotiations to try to arrive at a license and i think you're right there has to be some notion if you if you come in and you say ok my rate is a million dollars per absolutely on microsoft's an example there are other examples to be sure microsoft is a little bit different because there are the court was asked your charm and fran terms not just determine whether there has been a breach right now and if in fact  our defense if you fail to comply with fran what would be a defense to that as to damages i think that fran comes into the damages aspect not as a defense so much but it's as kind of the measure as a matter right so wrecked i mean that's what i'm confused you've got my friend on the other side argue that no one's ever allowed to no third party can decide what the friend number is because it's too complicated and yet this would seem to leave it in the hands of a juror well and well obviously we  our position courts have been doing that every difference i mean everybody's throat would be words around arbiter is there a difference between the two sides in terms of what the scope of the arbitration would be and second part is there a difference between saying that a court is going to come up with a friend between in the abstract there's a difference between setting a rate and all the other terms you might have but there's really no there's really no issue about other terms here because you know they get which pads are going to be licensed while they're the ones that where you've declared that they're standard essential what products  and i believe that samsung has are has challenged whether particular patents are in fact essential and in fact i think their view is that you go patent by patent even if there are thousands of them and decide each of those individually our view is that that's not what the friend obligation contemplates at all what a good faith negotiations is you don't put every party to the burden of litigating every single pat about the same thing here well i mean i think we are because their position is that it would be irreparable harm to for them even to be subjected to arbitration again going back to this notion that nobody other than the parties themselves can decide on water taking the position that absent that the court absolutely was without power to decide this unless they consented and they refused to consent so in view of that it was basically we decided this is not the hill we want to fight on and plus that that you know it at that point we already have a determination from the chinese court on the friend issues that our conduct complied with friend there is good not and and therefore we were entitled to an injunction inch injunction in china for and against infringement in china and so there is no we would have loved to have the district court decide the issue that's what we played in our complaint at the injunction the arbitration we talking about in china the scope of this was that limited to the two patents that were an issue in china know the way the whole thing the the the frand issues and the arbitration we proposed in connection with the chinese proceeding was for a global cross license between the parties to resolve the entire friend dispute between them the chinese injunction relates to two patents but they're think fifty five forty one through forty six the chinese court went through while ways offers and said these offers complied with france right and so samsung could accept the one of those offers and that would create a license that then w at undergo shaded resolution of a license is it fair to say that if the injunction is in place what the deal is is absent weiwei agreeing to some alternative right well no which we do but let me let me have a as i samsung made clear in its briefs in this court it has steadfastly refused even to contemplate that possibility we if there is a way to have an arbitration that will will really not just be another opportunity for de lay but it will actually would produce a friend license we're all for it but this the signs are not encouraging because at the chinese court went through five years of stalling by samsung it articulated kind of month by month what they're going to but the thing where we are in this case is leaving aside the injunction you're doing you went to court it because you're trying to push the push them to resolution and you're going to get your resolution it might take you now in other years that we get a resolution in terms of who's violating the brand and what the friend rate should be right oh well i don't think i'm going to take another year because i suppose the chinese case i'm talking about the u s case the oh yeah the u s case sure that we could have it could have to wait until september for a trial and then you know the judge will take presumably take certain things under advisement so sure it could it could be another year and in the meantime we've got this injunction against an order entered by a chinese court that clearly had jurisdiction and that does not affect it doesn't cut off the district court's ability to decide certainly any of the issues that are left before that court so it's not at all like microsoft where you know if it would have prevented the district court from deciding the issues before it we're not i'm a little nervous about talking about some of the stuff because i don't want it so if i go into wrexham that you think is you know be on the confidentiality but isn't it the case that the district court surmised that as a practical matter the conclusion is unavoidable that the chinese injunction goes into if that this case is going to be for necessarily forced to go away no i don't think that's true your honor not when you think about what's left we've got cases we've got the question of infringement of u s patents and past damages and we've got the the question of what the breach of contract questions to you know it would i think because t breach of contract question is has the conduct up until now it's not remembered there's a forward looking license in the u s is no longer on the table that's been taken off the table in the u s case so what we've got is has their conduct up until now breached the friend commitment now the it's supposed to happen well there's all different types of ways for it to happen you could phone frenchmen actions which has happened in this case but not to get an injunction to actually get a cross licensing rate because that seems to me to be the underlying goal of the frame commitments is to avoid all of this collateral litigation and all these infringement conditions and get parties that are standard essential part of holders to agreed to fair and appropriate term agree on some number and if they can't do that somebody has to oppose it you have a sentence in your briefs and says no arbitrator suited to decide all the necessary just due to questions of business planning except for how can that there's never any there is no obligation sorry yet there's no obligation under at c to license your tire portfolio to a competitor that's not an obligation the op that's you know obligation is you can't seek an injunction unless you're operating in court and with frank that's the whole point of the declaration that gets made and and the whole point is we deal with damages with these things for me just clarify when you're talking about attempt to negotiate a fair and reasonable rate for licensing them and if either party and i know you both have your different views of the vaccine if you if both parties or one party doesn't fall through that exactly exactly so you agreed that some neutral third party if the parties are unable to do it has to decide the grade the thing we're talking about with the arbitration is not in financial terms were for example if you're a businessman  these contracts are like for ten years or eight years or long term and when you're negotiating them you have to is a business person you have to make predictions about what technology is going to come in the future and what's not and so there's a lot of business judgments that go point is to have the heart sit down and lay out what the business considerations are right and someone to make a decision because you can't just go for africa right i agree so so what we have here is while we made of this tactical decision when it filed this without any notice to us it filed these chinese action seeking only injunctions on seps in this hometown and a day before court the very theory that we're talking about samsung three straight ahead so they if therefore we want declaratory relief that same some cannot get an injunction worldwide based on that check that says you're only making it if the other side is also friend if i think you alluded to that and so that both those issues are joined below they're going to be decided and the only point of this you know happens it's a possibility yeah right but if i could just get back to this injunction is a very narrow it's not just got dissed this it's overturning the chinese courts not doing anything business judgment that should be made by private parties negotiating rather than having a third party can you just tell me answer just what you would contemplate the district court being able to decide he ruled the rule on the breach of contract claims saying what he has to decide can't see conjunctive relief there's no dispute that if you're not friends both sides agree you can't seek injunctive relief so this is about but i think it's also pretty broad understanding among everybody who looks at these questions that friend rate because otherwise it basically leaves the playing field that the implementers can just keep on doing things and keep one reaping profits and not paying our friend great no that's i don't think that's the case but the issue this join different issues and and i'm perhaps speaking at you brought of a practical global level but it seems to me that this all of this collateral litigation over injunctions and the like is just allowing both sides to try to gain influence over each other what should really be happening is you two should be setting down and negotiate their frame rates agree one hundred percent neither of you seem to be willing to even explain how that could be done we're doing it in settlement talks right now ok it's going to be we're trying to do it something well again this is not before the court but we have a very long set of facts that we could go through about how wall way has changed the changed its foundational assumptions in every single one of the one thing they don't change is they want one point five percent that's a standard rate i mean they are very that's not well the actual negotiations are confidential but so i can't go into th whether or not we like them and what does that mean under trying his luck if i can't figure it out there's no one that the chinese court didn't do any analysis of numbers by the way of what would be framed and not and all they did was talk about subject of bad faith so look i'm not trying to second guess the chinese court all i'm saying is what we asked this court to decide breach of contract we joined issue with our counter claim and we and the district court should be allowed to decide those issues without interference from an injunction that would require settlement in this case th of you are going to appeal from that and all the time you know you're going to be selling your phones you're going to be manufacturing their phones and they're not going to be getting their patent licenses paid i mean it can't be that from the court in the us that's it we're not trying to tell chinese courts what to do but while way that having initiated this case simultaneously as it were is is to focus course jurisdiction we have  the issue on breach of contract and asked the district court the united states to decide this issue nobody says that we don't have the right to go to the district court and ask for these decisions to be made microsoft versus motorola  get to decide that's what he said he did not suspect that there was a public policy against seventeen lines nineteen through twenty two quote under these circumstances the send general order interferes with equable considerations by compromising the court's ability to reach a just result in the case before it is free of external pressure on samsung to enter into a hold up settlement before the litigation is complete right that has nothing to do with whether there is a public policy against any johnson announced context i guess what i was referring to is a policy against hold up your  he's talking about when he when he has one of the considerations are that it would deprive him of his ability to adjudicate the issues before him i didn't know how to read the fact that he's kind of telling us i'm never going to be able to decide he's told us from the beginning first status conference in this case a private party should negotiate this it doesn't make any sense for either party to go to any court and try to have some court negotiate or are determined all these complex things and i think i he he went on to say but you have to not enforce this injunction so i can try so i can do it so i don't think that comment is inconsistent with  his ruling that he need that that into forstmann of a junction would result in taking away his ability to decide with both parties asked him to do because samsung can't afford to have its plants shut down in china and therefore if an injunction was in forcible and they intend to and force it we just cry uncle and do whatever terms they want ok thank you this would not be a hold up license or a hold up settlement because the offers were frantic so that's off the table at least it's off the table if you accord any kind of this is are they really look at number  don't understand that if you look at it and i would refer to the court two pages i think it's fifty five nineteen through forty six the chinese court in painstaking detail goes offered by offer and all those places where it's blacked out that that's by the way was by the chinese  court ordered that which is why it's that way even in the confidential appendix each of those is a number that they're going through each rate for each you know each standard and all of that so how come our council can say the chinese court didn't even consider this and it was just sort of a subject of bad faith thing that's just completely contrary to this detail painstaking analysis and that decision so that's just wrong and the other thing is that so let's suppose that the injunction finally the chinese injunction start finally cause samsung to accept what the chinese court has said would be a friend license even then that's not going to change the issues that are before the district court unless samsung wants to abandon them at that point the breach of contract claims are print cases right well it would moot the infringement cases if samsung agreed that those in fact were standard essential patents but they're challenging that so unless they gave up on that we'd still have to litigate that  backward looking it is has infringement occurred up till now if so what are the damages as a breach of contract occurred up to now if so are there any damages for example in the microsoft motorola case your honor there was a damage claim with that reacher friend obligation because microsoft  taken action to prepare for the eventuality that the german injunctions might be in joint i don't know we don't know whether there be such a claim here but in theory it might not just be this declaration of breach or no breach there could be a damages type remedy so as a practical matter it may not make a difference but it is not depriving the district court of jurisdiction to decide an issue the party still wanted to decide if samsung decides it doesn't want the court to decide the issue of the well that's fine but that's not the kind of deprivation of jurisdiction that yellow or these other cases are talking about so just a couple of other very quick points it's true that the chinese court didn't decide breach of contract or the breach of contract claim wasn't presented there but all the friend issues were fully litigated as a