agreement to what extent are we constrained in our discussions by these confidentiality and mark i would prefer to be careful but i don't see any reason for the purposes of my argument to take any special  i can't speak to the emily hughes since i don't represent the parties to that transaction but what i was wondering whether we could because whether we're talking in court today or whether we're writing an opinion or are really always the case it would seem to me that the thing that  freely about what the contract terms were and certainly would make the urge was here i agree as to section five point one of the white i b m license i absolutely agree i after speak on the to go to stanford and others dr white why is that the core and not the language of the group i mean you know i guess i appreciate your want to emphasize that but it seems to me that we've got it agreement that the parties attrited to it it's hard to rewrite an agreement based on a representation with respect to relationships right well the it is the core because first it is recited in the agreement at the appendix today two seven seven zero but it's not a term of the current over that recites a special relationship resigns and there are special terms in the agreement and then the agreement as a whole includes section five point one you not suggesting that that special relationship in the discussion and the which is getting back to my earlier point why that is the core of this question whether rather than the terms of the green it is the core of this question for two reasons first it explains in part the enti no way benefit anybody and i b m left a gaping hole in it through the definition of subsidiary except that it's not what happened no but i'm just saying you want us to interpret the contract or at least get a feel for the you know before it got in the business and under whites and it had wasn't previously on her right so the national transfer looks to be quite ok under section five i would disagree that intended that those assets including the white license be transferred which in the cases that we have cited on another theory and are true with the sexting cases in california law you must look at the substance once was that was was i be i'm contractually obligated contractually obligated to let out at that point in time what would have stopped i b m from walking away from the deal i believe the framework agreement you know what the framework agreement the framework agreement described these series of transactions i'll look at that so the the court below seem to think that you were complaining about two possible transactions both initial transaction which i described which is before she puts any money into the may be allowed under the white i b m license however it is not possible to atomize you must look at the continuum that from the beginning of the memorandum of understanding through the framework now as part of this because of the fact that that white had made certain that that no one who was already in the hard drive business would ever getting the benefit of the license of the white license yet so the point was that it was not to be transferred to another company they are not to get the benefits of that one i would just leave won't get benefits so we can atomized because white had made darn sure that the benefits of the of his invention and his license would never go to someone who was already in the business unless they had been you cannot advise because now i'm trying to get where you are clearly we started the argument we proved i believe that under sections one point six and two point one i b m could share the benefits of the white licen states this would have complete total control over the assets it was their intent that it's ex have all control control the board of directors control the officers control ninety nine more than that is in the framework agreement and in the subsidiary documents of the transaction but from day one from january one i mean i think it's important least under california law cases it may be important as to whether   thirty percent owner it's getting something for which and the agreement was that i b m once received no benefits and that at taji was a control more than ninety nine percent of the voting interest it was to control the directors and the which is this concept of one hundred percent control of the cut of the company through stock holding california law is clear in case after case going back decades that when you are a stockholder of a company that does cases those those cases have an even bigger difference and in those cases the corporate form changed so in other words it's not as though there's a company and then there's a transaction among every single case is that it's a change in the legal form and that's one of the things in the briefing that gets a little muddy which is there's a difference between a change in ownership that is typical sales of stock versus change a new legal form which is a merger a most of the california case actually relate to corporations need to be disbanded or being created and assets of the stockholder who come into the company  coming back the stock how do we how do we know what b or otherwise transferable language on track means and we know what that means because i mean in terms of what it means it's really one of means means i mean that we didn't get into this part of the but that's a big part of his briefing argument is that otherwise transferable deals with what happened here in the time she bought and you say in your brief otherwise transferrable is just lawyer language and reading from page forty four that's used to ensure that it transferee of a license you know wouldn't be captured you know if what you didn't if it wasn't formally an assignment that maybe looked like and my point in asking the question is and that's what they say happened here understood and my point is that transfer can't mean that we're emasculating the rule in these non in these anti simon provisions that change in stock ownership doesn't result in a change of an assignment you take well that's where your other side or up and the question is well those two californication run counter to past your right those are excellent first of all i'd say that in that going going back to even farmland the california courts recognize that there that federal or transfer getting back to finish the other point your honor that or transfer was not defeated by stocks and they are on a nearly identical facts with competitors in all the same concerns so yes you're saying that no what whatever transfer might mean hitachi was never transferred any rights if anything it acquired stock and that's it it's current stock through a legal form that owns assets every time that there's a change in stock ownership there isn't a transfer of each individual asset for purpose of anti simon provisions that would throw the law in total chaos if you apply that principle just about ten days in these briefs that would be to be turned we ability of property that the truth which will is when you change the legal form ok not just the stock sale so let's say i think well we'll look through it to see what went on we'll look for it to do it for two reasons i will look through it first because we want people to be able to assign agreements so the fact that someone moved the property from a corporation to a shareholder from a shareholder to a corporation or to shareholders change or whatever else but if the legal form changes you are not necessarily barred even if there's a flat and i simon provision even if it is you cannot assign work transfer if there's a change in legal form we still may save you we still may let you assign a let you do an absolute assignment if we ownership it doesn't say change in ownership and one of the issues and i'm a i'm concerned that there's some of the briefing with a lip season so for that there's there's a loss of that importance of the legal form change through which is clear there was no case zero where there's just been a stock change were true which has been a play where there's been a stock sale and someone's applied to nine they've all been no change in legal form the other provision of  sexting which is another case they rely and this is on on the prior page in the middle right occurred because of a change in legal form no one has applied to bewitch to just the sale of a shareholder and no one has used it in the way that's being attempted here and another important policy of california in from the supreme court on down there is this favor of forfeiture disfavor forfeiture so there into the teeth of strong policies  california which make the law even less favorable to their anti transfer ability then the first circuit the seventh circuit the second circuit that's it passed or baxter carte blanche review director write what they want to this is one of the points in your and the interchange in the opening argument was well i be they wanted i b m to retain control right we had that numerous times the critical piece of this was m to retain control not true concept of the agreement was i b m could and probably was planning to spin its business off i think the degree clearly contemplates no control for i b m just like setting a bird free that if you give it to put it in a subsidiary with the business it goes free that was what was probably expected more than even contemplated possibility that's what they did there's stock ownership by atocha so a company that happened to be in the business elsewhere and it's own business own this if they care and there's and there's numerous of these decisions and that say if you really want to regulate the ability of a patent license in a intricate way in terms of what people downstream can do you need to be really careful about well if they attempted to be careful said well you can't you can assign it and you can set it free but only to somebody that either has a license or is not it was not read right and that's fine but what they should've so there they had some concern they did have some concern i think their cat contemplating a spin off i think i b m type you know at the last thing i had said we need to spend this time of the last thing they wanted got we got we got one way we treat we treat i b m one way which may or may also drive difference but it but if everybody was going to agree there was going to be the spin off company if the idea was that spinoff company for the life of like they didn't have sophisticated counsel that knew what they were doing there is no change of control agreement and there was no and and really well mine are still hung up on whether otherwise what otherwise transferable means or whether they're free don't i mean i get i don't want to even all encompassing answer what it always means but i mean there with assignments we know we talk about in the standing area all essential rights of virtual assignment there's so many meanings you can have it what certainly they say it does in california because of the cases they rely on that transfer takes on this new meaning i understand the transfer argument which argument to be completely independent i don't see that they're mutually reinforcing for all the reasons that i've given you i in california with just results that's that's what's drive through that's what's driving to which end pro is simon and absolutely pro sign that we in california have a idea if you wan trainer case in farm land they made clear look if a company was selling the stock no one would ever argue that that's you know an inappropriate a sign of the company because because of the the bottom fides of the company this runs i think definition which said changing control we heard quite a bit about farmland irrigation there's one very important point and farmland in irrigation there was no it's a transfer provision in the contract  in farm land in the integration council realize in many cases that do not include a transfer provisions with there is no end to transfer provision california will not insert one but where there isn't a point two states to the force extent permitted will under political law on or after the closing the touching shall have all rights with respect to the management mary on the cover page of the framework this is in the record eight three one one three capital b the parties are for i b m to transfer its hard disk drive business to group of newly formed entities to be controlled by attaching from an after the a defined term and there's a somewhere in the b b business to be control right yes and there are other provisions somewhere in the license there's a provision that prohibits someone else will control point one does anything looking for it says otherwise transferable your honor if dr white had written the whole bunch of specifics every specific he could think of and how corporations might reorganize themselves and then i began to talk she found a different way to do it we would be told the dr way could have written that specific one what he did was he wrote a specific provision no assignment and then he wrote generic or otherwise transferable in california law requires that that term be given a fact we know it doesn't mean assignment must mean something else we know california courts have a target rather we know they follow black's law dictionary says it means changing