case the district board specifically limited its subject matter jurisdiction at the beginning of the case to the portion of mr pro's breach of contract down namely to determine at the pla it also under rule twelve b six motion to dismiss mr for all those patent frenchmen counted entirely there were then several errors by the district court where proceedings beyond the limited scope of itself defined subject matter jurisdiction i think we have the procedural progress of the case well in hand i think you want to jump to what you think are reversible the first reversible error occurred when the district court granted wilson's motion for judgment as a matter of law at the close of mr furloughs case at trial it dismissed his breach of contract claims with respect to the five tennis racket models every issue because he didn't prove patent infringement but there was sufficient evidence in the record to support a breach of contract claim if the rule fifty motion had been evaluated as a reach of contract claim that were sufficient evidence for the jury to find it will soon reach the agreement there were from the very beginning of this case wilson said for us only i don't believe so because you don't either you know he would i think even if you look at it as a package infringement case he arguably had the evidence when you look at how the case unfolded in that prior to the rule fifty motion we'll see never produced anything in discovery on the first summary judgment motion or in the final pretrial order where it was exact question here is his trial transcript on this exact point i approached the counsel particularly you mr pest like to say was there anything in the record that could have shown such an agreement or waiver and you can indicated that was twenty six that the other elements were not met the whole page august wilson had that burden of proof it's the patent or in your case a license or that has the burden of proving that this is a licensed article why found them correct i mean what happened during discovery was there were a lot of racket models that issue and wilson could only produce sixteen sample rackets from coming into court in claiming they're not wasting stars and the second certainly had a decision really discussed in some detail and basically said that someone in wilson's position should be it should be evidence of marking on fourteen known certain marks and their response was well whether they're marked or not they all have an eye a that is equal to or less than eight and they provided tons of did and this was rejected by the district court in that he did a mathematical analysis called standard deviation analysis for it took the high in the low well i think they took the high and low but what he did was find that w said alternatively alternatively if i were to treat them as being the case then i would say that the fia probably have has failed to show the presence of the limitations the claims on the records was entirely beyond the jurisdiction of the district court in that the two hundred ninety nine racket models had been treated by wilson as latest articles they paid royalties on all of them the only question is also mark we don't they we don't know whether there's no evidence as to whether they were marked but we'll soon paid royalties on them the only question is that our auditor found that the royalties  sure and it was a question of damages which was excluded from the district court's jurisdiction by its initial order the racquets that should have never been adjudication listen never came and said these aren't licensed articles case was there was an audit and there was a disagreement between the parties wilson agreed some of the rackets were lace and start a cause and they should have paid on them and they also agreed that they had shorted mr fo royalties on some of them they paid six hundred ninety nine thousand dollars on a domestic audit in i believe its truth and seven and then he paid another eighty thousand dollars on the for an audit in i believe two room jeffrey keith from cannes associates representing wilson sporting good this case is in essence a contract dispute but because the contract here specifically says that wilson only license keys on licensed articles and the only thing that is a licensed article under section one point two of the agreement is attendance record which is covered by one or more unexpired or otherwise valid this is where you're supposed to put in any evidence on these five records which you dispute defendants contested fact and then i go through a lot you have a claim turn to three seven to patent has five relevant independent claims that are summarized follow on page twenty eight of your even in this appeal the plaintiff has not argued at all that the elements of the claims have been met by the proof in the trial court there is no argument and is very uncertain as to the articles remark for their patent actually none of the articles at trial were marked with the past number and that's clear in the record none of the articles that were a trial had ever been paid off there was no royalty ever paid on them they were never reported as royalty bearing there's no basis  license was about to expire to exercise our rights that brought in three years of payments under the audit rights we look at what were the payments made what were the records and he has to determine what license articles should be in the royalty pool and potentially which ones should not mr fuld through his auditor joseph giannini decided that the pool of audited licensed articles should be every tennis racquet weighing less than ten point nine ounces not an element of the claims or any wilson record that had the name hamilton which is a wilson trademark associated with it that's how we develop this pool of what should be a licensed article at the beginning of the wilson conceded that in this pool there were one hundred twenty records that we had underpaid applied and we tendered payment of close to eight hundred thousand dollars that's not a dish you any longer the only thing that became of issue  too late in the ballgame because he didn't identify and then announce there are not to let a man and he would be free to bring those in a separate action against them then the problem is the district court ruled on the merits that they don't infringe which seems a little premature to me but there was no evidence other than the fact that some of these may have been paid upon which would create in the style go and in the south requires a misrepresentation and a detrimental reliance and there was no proof whatsoever of those paying in money any bracket why isn't that true because in an audit procedure which is what this case is about the parties take what's paid and what's not paid and they decide what has been underpaid what is going overpaid and equalise it to find out what's right but first you have to find what is the licensed articles the contract requires it to be covered by a valid claim of the path and if it's not covered by a valid claim it can't enter the analysis  nine his first decision was i agree with wilson i shouldn't even be talking about this i should just not even be talking it's a violation of the law of  ok thank you m c p you can't have one thing that would like to point out that was in the final pretrial order in the days with respect to the five record models that were issue is was the lead paragraph twenty four it was in fact on page eight to ninety five three and they discussed the they're discussing the record data for two of the models t fifty eight thirty two and t seventy two thirty and they say that for these iraqis the test data straddles eighty some and below some as above and they say that for those at it's above they are licensed articles and for the data that's below they're not licensed articles and these are two of the rackets that were subject to the j m wor