and can i ask a couple of procedural questions traffic on the four eight two which is what i'm going toward you only submitted in the appendix interestingly the very first page of the cover actually of your and i notice it a couple of points in the hearings the oral hearing when the district court said so we're talking about one to two into one six and i don't know that with you or someone kept i think i don't forget for a two in the set i'll get to that later or something and i never saw him differently than one two two and two one six you should have gotten your full measure of relief right you if you're entitled o p o on anyone that stops the product that's correct now i do want to inform the court that since the hearing before a two is was subject to interference in the patent and stopped all the district court after hearing said that he wanted to take up the issues of license estoppel first disciplinary matters so the parties brief that issues we briefed the issue on an expedited basis and roxanne submitted their briefing only on those issues activists initial submission was all of two pages on implied license citing to the transco our case we were these two agreements there were we have reports where the separately negotiated yes if it's what what significant difference between the two agreements in that respect in that the activist agreement doesn't mention the license under other patents where it is the roxanne agreement of say that i agree your honor what i was trying to what i was trying to say is that because these are and the cases what happens is when the parties negotiate these agreements they have a serious discussion and negotiation over what the license patents are the key question is what patents are licensed in both agreements  do you not responding to my question why is the different language in the two agreements the course of the negotiations between the parties was was was different different people involved different time period involved remem came from the other side agreements went back and forth from from both parties and in the case of activists you're right there is no explicit provision like four point one c in roxanne there is a statement that there is to be no implied license or stop and that agreement which in the case of activists was put in at important time activist asks for more license rights than we were willing to grant we provided an initial draft which provided a list list of certain life patterns they asked for more extensive to be included into the agreement we said no we provided them the license to patent definition which now appears in the agreement and at the same time that that was done in order to ensure that we would not be here today we put in a provision that said no implied rights should be found in this implication by a stop or otherwise what during the course of the activist negotiations was there any discussion of the one twenty two and to sixty patents do we know there's nothing there's nothing in the record on that your honor we have not had discovery so we don't know we don't there was no explicit discussion regarding those those applications they had been published at the time and we presume activists was aware of them but we haven't had discovery on that they were published and so you could just click on pair for like if you wanted to five zero click on a link and pair and it was upgraded absolutely and you know competent lawyers look for these things we're having a negotiation  also they could have asked you right how hard is it some day do you have any other pending applications absolutely they could have asked and all they had to do was go to the internet to find out and presumably they did the even if one of them presumably well we were having a negotiation your honor where you typical settlement agreement in a case would be ok for the patents and sue their settled but this negotiation was over a life the license patents are x those of the one the one that was in litigation and then they ask for the pads that were also listed on the orange book and we said fine you don't infringe the so we're happy to the state that we're not going to sue you because we're not going to violate rule levon and then they came back and said we want to tell you ations of those patents and we said ok formulation in general what did they also include the specific chemical some of them included specific compounds that were in the end a product a list on the orange book the pads have to cover our product it doesn't necessarily mean that they agreement one of the that was being used and that would have satisfied the f d a that there was a dispute over one of the patents which was being litigated because we believe and french and they were defending with respect to the other three patents there was no dispute we did  because they we had no basis for a lawsuit on those three patents one of the three patents we did not sue on and that everybody agreed was not infringed was two fifty which was the patent which it had oral argument and during the litigation blow it was assert well that's changed that's where we part ways your your honor with the district court and first of all the district court actually found that he couldn't reach a decision with respect to the intent of the parties or what the scope of the license patents were and we think that if you can't do that you can't determine the intent of the parties you can apply stoppel because the stoppel is designed to promote the intent of the heart of the district court was clearly influenced by the fact that there was a prior case and that the product was the same but we say i mean question and that is if you were the patent p and you were sitting under other applications sitting on other applications which could be listed in the orange book which might all are the manufacture and sale of this product why wouldn't you bring them up in the course of say the act peevish negotiation the way they were brought up in the rocks and the goshi ation so that people are not misled about what they're getting in the agreement difficult for the patentee under these circumstances to say we have these other applications and we want you to know about them and to be clear that we're not giving you a license on we we've believed we had a negotiation over the license pat they asked for continuations of certain patents and we granted them they did not have been to not have it in terms of good faith negotiations why is it a burden to the patent the end of the circumstances to say we have these other applications we want to be clear to you that you're not getting licenses under the your honor it would a burden it would upset the settled course of the way licensing the goshi ations are done in the way license agreements are done you would  be basically what that a rule like that would require that it would dramatically change thousands of license agreements it would mean that the license patent provisions of an agreement have no force and i don't think you're really answering my question why is it such a burden licensing negotiations crazy unwieldy to open the door i mean for example in this case when your claims at the time of the act to go she should actually been rejected by the board in fact what they stood rejected that is true and so i think that's why they gave up on them substantially wouldn't they by having to import discussion of all of this in every case as a matter of the wall into every license i'm sure judge moore's trying to be helpful but i'd like you to answer my question your honor the the if you're asking me the question if the court set a rule going forward that's sad along the lines of what i think you're suggesting put parties deal with it they absolutely could but that's not been the law in the past and it was not there are two types of a stop there's a stop and pace which is normal type of a stop where someone says something misleading there's reliance and and and damage results from that that's not been charged here they never said that they were that there was any misrepresentation here the stoppel that's been discussed is legal a stop which says that the intent of the parties was that these patents would be license but suppose we didn't know about supposed to he was didn't know about the other patterns if they didn't know about the other patterns then they were negligent as the patents were were published in available and they certainly knew that there was a risk that there were other applications out there that could always one for you to bring it up either once we said to them that we are not giving you every pattern that endo has which we told that you didn't you know we gave it that's the difference in the language between the two agreements you didn't patents that were on the orange book they asked for more than that and we said no we said you can have continuations and divisional of those specific patents and that's it and for good measure we put bands but i don't remember seeing expressly the evidence that you're referring to now which would be namely the negotiation with activists where they asked for more and you said no is that  opening papers referred to the foray to put in an infringement case our opposition papers we had a seventy page expert declaration that touched on in validity of all three patents and its pacifically covered for a two among other things noted that the senior party in the interference gets before a two which was then pending had been awarded priority so you are not consistent with the four able to was before the district court and the district court has ruled on or two as well as the other it absolutely was your honor and in the record on page j sixty four thirty six when when mr black pointed out the judge was a discussion was referring to the one to two and that you want six when he is calling out the numbers but he wasn't calling out the third pattern drivers or a judge or say ask you need adjournment to get into anything separate about that and the answer was no there's no question it was in front of the district court and we never argued the express license argument about the for a too and so the proposition by endo that the district court erred in not resolving the express license issue before getting into require that and so the so what would the theory be as to why the should be unstoppable with respect to the for you sure your honor so if we look at the principles and the conditions that the court has set forth to have this to stop it is that there was a license granted that there was consideration paid and that the licensee at the license or is trying to delegate from the licensees ability to practice under the lights and patents it was different your honor but i would say not in the way that matters because in both cases and all the cases the court has to look at what are the rights granted and in that case the rights granted were as tool that was all the government was allowed to do it was that tool and the crimping tool in our case all that activists was allowed to do is sell the specific formulation generic product which is the only thing that's licensed says i understand the number seventy nine and it calls out my number when you're sure but it also ties it in with a specific package they always do but that's true in trans court case also your honor well and but in franklin square didn't involve a situation where a new path and not owned by the patentee at the time the agreement  was being asserted but let's turn that i have a limited amount of time here to that to the other two patents and what is the record tell us let's assume that the rule of law stablished by these earlier cases and i'm sure there's disagreement about this is that you can't sit on judge applications for other patents that cover the product and not reveal them in the course of negotiations and if you don't these other two applications and the record assignments and then go shooting history to mr black pointed to is virtually is really silent on this issue we have there affiant mr donahue our while who said that he went to one meeting with activists and he was no longer  necessary perhaps or needs to be discovery but if in fact and in fact are it seems to me that it would be some grievous lapse if this published information on these critical products that activists is obligation of the patentee to tell you about what it's inconceivable to me it was not known i certainly understand your point your honor but i would respectfully disagree that it is a negotiations wouldn't it be normal to expect somebody to research ending applications or do you rely on the other side to tell you what else is pending that's not included  within the agreement how do we know what the practices are i don't think i can generalize your honor what the practice is i've done a lot of licenses and it is all over the map but i will say two points i'd like to make in response to your question which also relates t sat on applications didn't disclose them in allowed the negotiation to go forward with the possible understanding that there were no other problems in the future with respect to this applications it has were should know and the prospective licensee which depending on the circumstances may be able to look them up if they've published or may not be able to look them up but the burden would clearly  mind to the prospective license shore under that circumstance to identify and make disclosure if the default rule is as your honor is is on positing in the hyp dyke mentioned about this difference in the language and four point one say and you know my argument on that is i don't believe that that language is any different than the language carving out future that another statement no express or implied license or future release whatsoever is granted to mark for any pass so those clauses are very similar to four point one c one hundred understand but i think your basic problem is there's the bill evidence in the record here that these applications were brought up in the roxy and so she and you tried to draft language that would include them which was rejected and i guess some of those circumstances i'm having some difficulty in seeing why there should be you know stop i think that those license negotiations roxane got broader language for the license it doesn't just say the three patents the three parts how it came back to is broader language in the what's in the activist agreement because it says the opana are patents which were the four five six the nine three three and the two five zero and any other applications that claim priority to those patterns including but not limited to continuations continuations apart so it was a broader scope so roxann believed it was covered under these vendor the law that's not the language that was finally  language of the license agreement is rejecting the language matters in that i know but what i'm saying here is the language of the license agreement says it doesn't just say click it's a continuation why do we have the words including continuation agreement is written most certainly does because it has this including continuation continuation in part but i don't i think it's kind of a red herring this is more whether or not we have an express license if you tell the district court that it was in fact not just clean party but it was a continuation of the two five zero successfully i don't recall whether or not i did that i don't recall that but it's my understanding think it is a continuation of the two sides here is it a continuation no i don't think it is a do know that he's a registered patent attorney and the very first line in the appendix says endos one to two patent into one six or continuations of patent culled out by number licensed in the two thousand and nine that i'm in agreement and it goes on end because it had that including language which is something we negotiated into the contract that means that the claims priority language must be broader than just continuations continuations in parts and division that's what i clearly argued to the  assume for the moment that you are convinced that there's at least some empathy would even the language the problem is you go to the negotiating history of this agreement and if i'm recalling correctly you have to have licenses of these pending applications which became the two one six and one to two and you didn't get the right well i don't know i don't agree with that because i think that we did i guess you agree with that because they want specifically raise these applications which became the one to two or two and servers i don't think that we specifically raise and there's no statement in the record that we specifically raise and this are gonna tell puts in a declaration where somehow he in paragraph thirty nine he somehow understands what roxanne understood at the time what these claims priority to language and then but there's no seeing that in the record as to what roxanne understood that's rank speculation and it's hearsay what the paragraph thirty nine priority to language because that's the language you usually use in order to make sure you get the whole patent family no you get what you claim priority still well i think that this is you know my understand of claim priority to me is if i have a straight line i can go back to sri five seven and there's a reason for that every single tree so in a divisional i think it would mean you would get these totally separate issues inventions often different branches well i think that language of the agreement covers divisional certainly i think that we get everything going if i had just  attorney do you understand that the word claims priority to mean doesn't have to actually have to mention it on its face it just i think in the context of this agreement where it says claims priority to these applications including thinking that's not a statement as to what roxanne was thinking at the time or another question rhodesian doesn't depend on what people were thinking it depends on what was said right and we came back and we broaden language to have this claims priority to language somebody has to say what they go shooting history it talking about what people said during the negotiations is not hearsay ok when he says we i don't want to i think when he says we agreed to something that is hearsay when he says we said something that would not be hearsay there's no record that we've ever said that he's trying to get into the mind of our negotiators say we agree to that and i think to me that's often the hearsay but i just want to go back to this whole mutual in the end that just say well we're running out original proposal proposed agreement was a fifty one forty four and that included a license to the litigated patent and a covenant to the other aren't for patents  responded by asking for continuation of those patents which meant that they were thinking about other applications which is not yet issued or which were out there and we responded by saying ok you can have continuations those patents but then in our next draft it was them that expressively came up with the idea that they might need a subset of pending applicant russians they clearly were thinking about it because they asked for continuation to visuals or they didn't but they didn't ask for one in which that would cover the one to two of the two ones no they did not they did not ask for the right to every patent and no had they could have which might suggest well it's interesting you know your honor i haven't really appreciated the point that you're raising because it didn't come up below i've had a chance to think about it now and i can see how your honor could because i think that a rule would be better if people were required by law to to raise patents even if they're even if they're listed on the patent office website that certainly wasn't the rule at the time that we negotiated the agreement you know finding by the district court that a stopover in peyser past would apply that there was any kind of misrepresentation here which of course would require them to present having anybody saying there was a misrepresentation well it's an interesting question your honor if both parties knew about  work there's no evidence that they didn't know then to state that we would have had to raise it in the goshi ated explicitly or we lose our rights for ten years to assert these patents would be a tremendously harsh result not one consistent with equity and not one you know it's troubling nevertheless it would obviously trouble the district judge is what in fact came out of this negotiation and the settlement there were the power grid for certification the and this product whatever it is a commercial product were at risk in that they would be subject to all of the thirty months of litigation that goes on and s something was settled correct and the district judge was persuaded and i didn't see otherwise that this defendant see this generic producers thought that they had acquired what they needed to proceed with a generic product because that's what the paragraph for certification is supposed to achieve now all of these extra complications come in not because of the certification but specifics of the settlement agreement that's that is the way the district judge approached it he although he first said i've looked at the license agreements i've heard what the party said i looked at the negotiating history i really can't figure out what the parties intent is here and then he went on and he said but i'm going to find a stop lending way and we think that was there and one of the reasons he got there your honor was because the hearing was tremendously confusing affair i will stand up for mr clement he was not the one who introduced the idea that these pa continuations that was activist counsel to do and i suggested if there was any suggestion at activists that they were misled that they were unaware of these applications that might issue or that we had cheated and that we would have seen that in the briefing that would have been argument number one it's not cheated it's not cheated you keep saying misled cheated that's not the point the question is who should have the burden of bringing up the other applications and since they didn't ask to have the other applications covered during the negotiation that at least suggests they weren't aware of they may have been well then you may discover that if there is discovery on this point but but certainly you would have thought if they're asking for additional unaware they never even made the argument the distro were they not finding that license in fact most of the time they include language on pending applications for example broader like it's commonplace to people know that these words exist by which they could cover larger absolutely in the in the transport general pro tax there's a quote from spindle fabric you know in a long string site that says parties can agree to license some patents or all pa that same thing applies to you that you could have included in the act he was agreement the same language you had in the roxy in agreement about not covering you know the what your owners we did include a provision that said no implied license or a stop on here i stand stuff that's the problem we had a license a provision that says what patents are license that provision must be given a factory will be upsetting some of the expectations of parties to thousands of license agreements when you negotiate the license patents in an agreement that's not an afterthought that's not a you know miscellaneous provision about you know some boilerplate that's an important provision and endo is entitled to rely on that license and then there should not be a stop for ten years from asserting the patents that are in this li we haven't talked about it but there is a whole nother set of related cases on the reformulated abuse resistant product those pat from those patents are listed against the abuse resistant product and they've certified to them and