to how that worked out what's the problem with that your honor i think i mean the problem is the findings that that stipulation in the words of that stipulation between n p i and hyde year are ambiguous and i  think the the reason for the district court's decision is that in the abstract of royalty rate in a patent case can take different forms it can be a percentage and it could be a dollars per unit royalty and the stipulation itself that document does not spell out exactly what n p i and are con the separate parties would would ultimately agreed to but neither party neither i n p i nor high year really argued that the stipulation is ambiguous and i think that there's there's case law that we have presented are some examples saying that just because an agreement or a contract doesn't spell out exactly what some future event is going to be doesn't make doesn't make that agreement or contract ambiguous and i think when you look at the circumstances here you have a stipulation where n p i in our got our excuse me and high year are going to be bound by something very specific and that something very specific and very clear is whatever n p i are caught our ultimate lay going to agree to in the event that this settlement agreement indicates that it was going to be based on the number of units dollars forty one cents per unit but what's missing there is his other language in the settlement agreement and in fact it's in the exact same provision just as paragraph three of the settlement agreement where the parties n p i or con agreed that that seems to be a challenge that you know that's a challenge you need to make you need to overcome that conclusion by the gist of current what your argument there i mean it seems to me that if if i don't agree with you on that so the relevant question here is what did n p r and our con agree to and there were there are probably many many ways in which the parties could have reached an agreement in this case but here we have a fully integrated contract between n p i our cause and the parties both agreed in their integration clause that this is the full scope of our agreement this is what we're agreeing to and so in terms of looking at the stipulation the stipulation agrees to be bound by an language is lowest negotiated royalty rate agreed to by and there's a typo between n p i and our confort past damages and future royalties for that particular identical product and so kind of regardless of how you look at the lowest negotiated royalty rate language it certainly needs to be the lowest for example if there are multiple rights it needs to be a negotiated rate and in fact if it's in settlement so it was a negotiated go healthy rate but at the end of the day it needs to be an agreed royalty rate between n p i and our con and again we have here we have a contract in the words of a contract that set forth that agreement think yeah i do think that's correct i mean there are many provisions in the settlement agreement and many of them are not relevant to the royalty rate certainly and i think those provisions  it's hard to do a reading of the stipulation where those provisions fall within the scope of what i hear would be bound by and what what n p i would be bound by in this situation but it very least the salient provisions of of the agreement between n p r and our con about royalty rate are paragraphs three d and three d which which sets forth what they're agreeing to the amount of money how that money is going to be calculated and in particular here that that and the the number of units sold in that time period those are both stipulated values there's no there's no dispute and there haven't been any dispute about what those numbers actually are the agreement between n p i and our common if you're to give meaning to those words and in particular this average sales price language a percentage royalty rate is the only thing you can come to there was testimony at the bench trial at this and then the order of the district court the district court hinted at this and i think the district court got a little bit off track when he said but the stipulate excuse me but the settlement agreement is not the agreement that the district court is interpretating and in fact the one question here is what is the agreement on royalty rate between n p i in our conduct that's what governs here and initial assumption that he could reach the extrinsic evidence because that was your honor i think yes it breaks down to a few points we do think there's an error  interpretation aspect here which is which is not a clear standard but in terms of the clear standard and looking at what was agreed to between the parties there's certainly also testimony in the record from n p i about the twenty point five percent rate and about the rates that have been proposed by both parties in the litigation and at the end of the day this twenty five percent rate as it falls squarely between it's a compromise position between what n p i had asked for and what what the defendants had asked for in these litigation parties on factual matters i agree there is some deference given to the district court but i think in terms of deciding whether that stipulation has an ambiguity just because it adopts a value  that is just part of a separate document it would be agreed to separately and also the district court handling of of the words of the settlement agreement and then in particular as its replacement of the words about the average sales price those are not under the  to the district court in the st place the motion and the stipulation between the parties originally contemplated that once there was a if there was a settlement between our come on and the parties would work together to determine the lowest negotiated rate that resulted from that settlement kind of an unfortunate situation quite reasonably it seems to me the parties wanted to avoid the cost of litigation and various fairly straightforward way but ultimately the the parties couldn't see to eye to eye on this and we brought the dispute to the district court for a short bench trial i think that the ultimately hang up from the beginning has been the idea that although high gear agreed that it would accept the the lowest negotiated royalty rate that resulted from that settlement there was no stipulation that it would agree to how it had to release it had a fully paid up license that covered a number of products that even included a release for all of us one hundred and thirty three dollars i believe patents that it owned for every product that not only  the dispute that the court has before it i know the st questions were related to the ambiguity issue and i think that ambiguity really flows at least in part from the positions that n p r has taken namely that high gear should be bound by sections three and three but we have to ignore the remainder of the settlement agreement i believe counsel acknowledged that in response to the court's questions and i think that that was troubling to judge dalton and really  large part of the disparity here the inclusion of the numbers way that our con n p i the provisions three d in three easy that they that they agreed upon seemingly carve out damages that the stipulation required to be included in terms of the lowest negotiated royalty rate so the in terms of the actual numbers there is a signal there is a significant difference in terms of total numbers but that's not the sole basis for the distinction i think the larger  problem from in terms of the where the numbers diverge from one another is the number that in arc on point two to key their their their sales price on and i price of what was the smallest saleable patent practicing unit so ultimately he looked at a small subset of the total accused products to which the road vice which is the analogous product that our console eight cents while it may have according to mr miller reflected the smallest salable patent press unit in the context of that dispute that number is far far less than the average sales price if you can answer this for me it would be a bit clear if you have the benefit of hindsight in other words when you would negotiate at the stipulation if you knew precisely what the settlement agreement was going to say as it says how how would you avoided the stipulation in terms of what you would be bombed by so to be honest i don't know that we would have been we would have done much different because i think frankly if you look at the entirety of the settlement agreement that n p r concept of old the sale of twenty five million dollars worth of products and four million dollars that they settled based on the units biased on the total number of units they settled that they were resolving ultimately it came out to about zero dollars forty cents per unit that is actually how the district court result it is that the numbers were undisputed we looked at all of the past sales of the units and also relied upon the projected sales of units into the future through the expiration of the patent by arc on those numbers were not in dispute and ultimately it was all of those units were licensed in a lump sum payment four million dollars so from our perspective we believe that all along what the district court arrived that zero dollars forty cents per unit is exactly some sales price of certain units or total units i guess if we were going to make changes then we would have tried to make it more clear that the royalty rate would have been gauged in exactly the same way that the parties had treated them during the case and an expert reports and that was on a per unit basis based upon the entirety of the sales we recognize that our con sold a number of the q s products at a variety of different sales prices and i think that's why they looked at it you know in total on a on a per unit basis that's how the parties had always treated it during the litigation and then looking back if i had if i knew what i did now and knew that the primary fight was going to be can we do this on a but i do think given the evidence that the court received that that was really the only way that it could be analyzed and that and i believe the judge dalton went through and analyzed it the way that he needed to now there are a couple of a couple of actually true because most of the evidence that was received related to the ark on case of course judge dalton was was construing the stipulation with high gear he construed it and in terms of trying to analyze the rate that result from the settlement agreement i believe that it was incumbent upon him to consider all the facts and all of the information that related to that settlement that's what the testimony related to so i don't believe i mean full evidence we don't we can really only call it parole evidence if it was trying to change the the meaning of the high gear stipulation and that's not what judge did so i believe he was correct in considering the evidence he did ultimately reaching the conclusion he did and the only way that the court could get to a number that resolved as required by the stipulation both past damages and future royalties cents number has gotten quite a bit of attention i think it's undisputed that what that number is a weighted average of the sales prices of three are contradicts and only one of those are kind is the relevant one and that price of a high years product at sixteen dollars forty cents and so we believe this is again part of what led the district court down the wrong road because the district court believed there was a six x disparity  on the average sales price which this zero dollars forty one cents per unit simply does not and then once you've determined that that percentage royalty rate what needs to happen is it needs to be applied to hide your product so there really is never a time when you compare the average sales price of all of our con's products which is the three dollars thirty eight cents to the average sales price of high years product which is about sixteen dollars the proper comparison here in the one that would have resolved some of those concerns about whether the settlement agreement can really be credited shows that there's there's no issue here and i think i also want to clarify one issue that council appointed to the parties very clearly in the stipulation agreed to the lowest negotiated royalty rate agreed to between n p i and our con for the particular identical product and so that language renders for seventy which have nearly identical prices and i guess on the point about priest sales also had come up with with your honor's questions the way we look at that is that i mean this was this was a negotiation obviously n p i in our kind knew there would be a negotiation and a potential royalty sales from high here so there's no there's no disparity there either thank you we thank both sides and the case