and if we were to apply that principle to your complaint then the patent misuse claim disappears and then all that's left are non patent lame and then we might have to transfer well so understood i would have let me address the question on the merits that is true your honor in a context in which the claim that was dismissed is not being appealed but here the claim that was dismissed is being appealed it would make no sense let's say the only issue in the case will misuse and it got dismissed without prejudice we would have the right to bring up that claim on appeal we are bringing up the claim on appeal would make no sense to say clear that it's important whether or not the actual patent claim that was dismissed without prejudice gets appealed and although that's a factual distinction the principle seemed to be more about let's look at the complaint the well clear complain and now we have to do a constructive amendment that will create a complete you're out of the reason you also didn't didn't consider this situation is because that wasn't the situation in that case but it matters a lot the court can't lose jurisdiction to decide an patent issue just because the patent issue has been dismissed when the appeal actually involves the patent issue but now you were shifting in time to trying to look at the at the  complete fiction basically that the patent claim was never there when you want yes you always start at the time the case began and had misuse was in at the time the case began the only way to understand cases like nielsen is to say ok let's go back and revise the claim but that couldn't possibly be what you do that is go back and revise the complaint but they couldn't possibly be what you do when the complaint actually that that very claim in the complaint is being appealed to the court the bottom line is the court always looks at the complaint that's what congress says the court should do so nielsen has to be read as a narrow exception to that will in a context in which the moved the piece of the case over somewhere else which we quite plainly have and then one last question is those cases also seem to have some kind of functional consideration as to whether or not  like case we had a case based upon a particular set of facts the court was saying that it's just missing in that case we have the right to appeal that on the facts as we presented them to the court but if your legal rights  somehow compromised or burdened well i guess your honor in the same way that the dismissal of of any claim the complaint cup when we believe the claim should have survived compromises all right let me put it this way if we presented the same that to another fact leader we would be bound by the same result our position is we shouldn't be bound by that result why would you be bound by that result she expressly indicated she is exercising her discretion to dismiss the claim i find it difficult to believe some other judge would feel like that impede their discretion the same exact that if we had gone through the same evidence and reach the same conclusion i would think another judge would would feel bound with nothing else changed another judge would feel bound to abide by it the reason that judge me queer positing a situation in which nothing at all is changed and we present the same exact claim without reserving the rights that we reserved so if i go long as you want the our our main argument argument on and i trust is is that we do not have to show that there was an injury already suffered it is enough to show the retina of them we don't even have to well ledge that we've already suffered harm it's clear on the basis of the statute section sixteen says it twice with grants relieved against quote threatened loss or damage by a violation of the i trust was the plaintive can target quote threaten conduct that will cause loss or damage and but the well it is the threat that we will exceed to a non handling and mr rosenkranz i took your case to be about two theories of and i trust violation one was you were seeking damages due to actual injuries you suffered and then two you were looking for an injunction due to this significant threat that you're here you're under so are we now no longer really thinking about that first one and now we're really just talking about the second one where you're out of the driver in this case all along was the injunction and that's what apple was most focused on because it's the threat that the threat is the threat of exceeding to a non brand right if we believe that the court will find that the that the rand rate is say ninety cents the threat that we will agree to three dollars or five dollars or anything up to twelve thirty five is a huge and i trust it's a huge threat to our business if we do in fact six see to it if that's true then every participant would have a right to come to court and demand that the court establish the rate of pride and otherwise every one of them would have an antitrust injury claim by virtue of being able to say i might agree to a friend rate that exceeds what you court would find as a reasonable for sure you are any any and there it's just implementer can come to a court and say the other side has been utterly and reasonable they've offered us as motorola did twelve times the going rate that sound reasonable we would ask the court to set a frame rate but there are all sorts of reasons why the general participant would not do that there's a huge risk in them or in us going to  accord and asking for the court to set the rate rather than working it out it could be much higher we could bring on ourselves as we in fact do you know what's what with the risk to you you came into this litigation with the posture that i want you to set the right but i'm not going to agree to the right you want to have your cake and eat it too so what is the harm to you since you're not agreeing to accept that rate if we said well so first i was answering the question about everyone else but the harm to watts is that if the rate if we are right that the correct rate is somewhere around a dollar or ninety cents then the enormous threat to us is that because of the pressures put upon us by this exorbitant demand we will end up exceeding two or grades quite a bit on here because there or i mean the difference between our positions and motorola's eleven is eleven dollars you multiply that by half a billion of phones just phones alone you're talking about billions of dollars annually for the head of an apple if the rate  is that we accept is double the grant rate that's an enormous and i trust harm even if we end up exceeding to it but there you know why can't we just look at this is two parties not agreeing as to what's the appropriate value of patented technology and and that's it and also you know every time that someone thinks that the patent owner is asking for an unreasonably high rate we don't invoke and i trust laws doing well so we were shipping back and forth between the contract and i trust ok so contract in the first instance sure we would have a contractual remedy if anyone would have a contractual remedy if for three years the patent owner demanded a rate that we believe were the or that the implementor believes to be twelve times the correct rate we might end up the end of that patent the standards implementor might end up being wrong say we would never be in the be allowed to take the position ever again in any forum that that rate is unfair so deep in my mis understanding judge craps decision below on what she did when she dismissed your breach of could question whether we have to accept the offer sight unseen and there's a big difference ex ante before motorola breached the contract it motorola had made an offer to us at say twelve dollars or even two dollars we would have had the opportunity to think about the offer to examine it against alternatives and then to make a reasoned decision as to whether we would accept that offer or were asking for is an order that puts us in the same position we would have been if motorola hadn't breached if you think of it this way and i we lay out this hypothetical in our brief if motorola it made a contractual commitment to us to sell us its headquarters as a right of first refusal and then made a secret offer to someone else without telling us what it is we will be allowed to enforce our right to receive the offer first no court would ever make us accept the offer sight unseen all we're asking for is the opportunity to do exactly what the contract required motor rowlett to do and put us in the position to be able to do the tricky part is that this friend contract soon it's a contract has this indefinite ambiguous term right the actual royalty rate it just says make sure it's a fair rate but doesn't actually give us or anybody a hard number and so i guess what i'm wondering is there a case out there that you know of where a party said well the other side's breaching this contract and we want you to fill in we want you judge to fill in this indefinite term and then will give us the ability to go back and hammer out the negotiations were so case like that unless you're out of the case is from the wisconsin supreme court which of course controls here and it's fun chain in fun chain that there was a piece of property there was an option to purchase that piece of property the option was it a state of the mouth but the court said there were improvements and when there are improvements you have to pay for the improvements the court made it clear that the  person exercising the option would not have to the or the person demanding the option would not have to exercise the option without knowing the price first but let me get to your honor's point about definiteness because definite raising it as an alternative grounds for summary judgment and arguing quite the opposite that that would be a question of that but secondly even even on the merits motorola's argument is wrong deputed and this is a question that one asks at the proper resolution of the royalty issues here and patent infringement litigation style this is a pure contract an antitrust claim patent as hughes was the only aspect of their claims that could possibly be a kind of reverse patent infringement action and the court exactly know that i would we agree with you to dismiss it with prejudice that he erred not dismissing it with prejudice your honor if that's the only issue on our cross appeal the main goal we have here is for you to affirm the dismissal without prejudice but let me just say why we ask for with prejudice i recognize it's a rare case where you ask for district court's discretion to be over come where there's a dismissal without prejudice the reason here is that as judge crabbe properly found apple tried to use her court the majesty of the federal district court a kind of jams session as a kind of add jobs to provide to to private negotiations to provide what she called a bargaining chip or a vehicle for leverage in negotiations and where apple had the chance to put  be a transfer you know but those cases like wilson and chamberlain they they talk about whether there may have been an alteration of the parties legal rights that's right and maybe that's the consideration there is it's not just a straight up dismissed without prejudice and they're not your honor no jurisdiction if you affirm there has been no change in apple's legal rights and therefore because as your honor says if you affirm the dis without prejudice the pattern this use claim can be pleaded as it should have been pleaded in the first place but they don't have a right to refile it immediately right that was the cook in ilse and where are the patent claim was split off and dismissed from of the non patent claims but the district court said you can refile that patent claim in a new action that's right your honor but here because of the peculiar split between the contract and antitrust claims that stayed with judge crabb and the patent that's pending then there will be an opportunity to bring the defenses those defenses were originally in the case so we think the key you know that mr hughes was never asserted in the post or litigation i read every pleading from start to finish originally in the i fifteen different cards and bringing completely unrelated counter claims in these various actions because i don't even think you can keep track of what patterns at issue and which suv fair enough your honor and let me say why it's so important exactly for that reason that is why it is so important that you affirm judge crabs dismissal here let's put to one side let's just discuss her dismissal with prejudice and let's recall that as your honor said there is first of all no antitrust injury here over those three claims that were  prepared to say how much money apple spent in litigating to defend itself against motorola as claims in the i t c and claims in the district court order to pursue its own affirmative claims against motorola that is obviously protected by norm and i didn't even hear my friend mr rosenkranz argue differently nor pennington protects clearly under this court's president in the e r b case as under supreme for president our right to go to court as a protector fraudulent conduct in front of an  withholding disclosure of the pending patent applications while the standard was being created well your honor first of all we think what motorola did was perfectly in conformity with the industry practice and we cite to an independent study on page fifty one of the motorola is read brief so what should happen tell me in the real world when would it have made a difference if apple had agreed to be bound and accept whatever friend ready we come up with still would have been problems with the contract claim so that that gets rid of the just tissue bill of the product we believe there still would have been indefinite as problems with a specific performance remedy for exactly the reasons judge chandler to earlier that the to the disclosure terms but to go back to france around to rethink what should happen is this first of all what the contracts with the standard setting organizations in vision is bilateral negotiations if that breaks down then there can be  amount they in fact did write in the posner suit aren't doesn't there pleading contain a bunch of frey and background stuff they didn't go so far as to make the antitrust impact misuse claims but i remember a whole sections of their pleadings several paragraphs talking about fr honor any it went to stanford i think that's the right ever see that not a separate person absolutely your honor what apple is trying to do here is to create a form of satellite litigation under wisconsin or washington or other state contract law that is an end run around the appropriate policy setting this court should superintend in orderly proceedings from patent infringement actions what should happen is if you have a friend defense played it as your damages case an affirmative defense in the patent infringement case of unclean hands waiver equitable stoffel license defense apple should have pleaded its frand concerns in motorola's patent suits not created this satellite litigation and tried one time we're talking about at least some different patents and patents that were in the posner litigation yes your honor and so there there isn't a need or something necessarily compelling hampel to go ahead and lump all these other motor all the patents that it would like reasonable rates on in addition to everything that's actually being litigated in the posner case threats correct your honor what apple is trying to do here is to say that entire portfolio is subject to their version of friend and your honor just to describe what you asked me before and i want to be sure i'd answer that is at the end of the case if apple just says yes we'll take the license now obviously you'll see other cases coming out from the district courts because this satellite litigation has been taking place in other district courts and we would say the minimum when the party like apple says they won't be back now they just want to use the federal court for an advisory opinion about what a friend rate is and judge have is absolutely right to dismiss the case no question will controversy and no ability for specific performance remedy to make any difference in the litigation him and ask what is probably a dumb question if in the posner case he were to set the free and right conceivably in the context of what damages ought to be in the form of a reasonable royalty does that then bind the standard setter in terms of all future licenses to offer that rate to everybody else that's an excellent question or because of course in the past infringement case it will be patent specific whereas what the claim apple is making here is portfolio wide we think the proper way to handle that is the way the standard setting organizations themselves and vision in the language of the  the contracts are clear bilateral negotiations between the parties if it breaks down binding arbitration if you have portfolio wide licensing that's a very calm play it's enterprise and you have an answer to judge a chance question is there any case where you can just come along and take the  vacuum and that's because the rate is sensitive in real world negotiations to a host of other issues that licensing experts and licensing negotiators are familiar with it depends on what the rate is will depend on geographic scope give backs and cross license under ration to what i understand you to be saying is there isn't a single reasonable friend rebs exactly right reasonable this represents a range and is where you're given person with whom you're negotiating may have factors that justify a higher rate or a lower rate and that they would all still be reasonable that's exactly right your honor precisely so which is why it's so artificial to say that wisconsin law about the rent on an apartment or the price of a farm could possibly be analogous here a reasonable rate range negotiated in the real world can be over a can be different for different implementers depending on the cross licenses and all the other factors and by the way when mr rosenkranz tries to say that motorola was so out of bounds i would refer you to the public list of rates that's on the appendix in the appendix at twenty one ninety four which says that the opening offer here and it was just an opening offer was one to which apple never responded apple never made any financial counteroffers in this case about these supposed harms from to seat to the standard setting organizations long ago and there was no discovery issue in fact judge crabbe said that there was plenty of awkward to need to say well what is the market power that motorola is now using to try to exact a super frand rates and the answer is not because until a court in a patent infringement case says they have to pay that license there is no coercive power motorola's coercive power depends upon happened judgments but just so just to go back i want to be if they'd said the fact that apple said they wouldn't take the license that means dismissal of the contract claims and the related declaratory they would all dismissed without prejudice that can be brought somewhere else that's exactly right your honor and if you affirm that's the end of the case here but not the end of your argument i'm not going to trust and i trust as with prejudice your honor because that was a merits resolution and we think that they their family are just as you were saying in the prior case we move for summary judgment on our panic to then was the time for apple to come in and say if it had evidence of damage from this other prior deceit supposed alleged deceit to the standard setting organizations they came back with not and i refer your honor in the record to the testimony of mr dr carlton they try to get some some in a trust injury out of him but if you look at the record all he says is something conclusory about sandra day one type trust injury is the threat of a cd to a higher than reasonable rate but your honor that can't happen until a court orders  my motorola prevails and patent infringement litigation and even if it could there was no evidence of antitrust injury you can't just plead a conclusory threat without injury and they failed to come forward that summary judgment with any concrete evidence as judge crabbe puts it on pages eighty one eighty two to one eighty three they failed to come forward i'm sorry eighty two to eighty three they failed to come forward with any evidence that there was a change in a product a delay in the release of the i phone and increased cost or loss of any customer or market share summary judgment was the time to put that antitrust injury and they didn't they can't causally link it back to the disk if we deny anyway and therefore they can't take time barred one nine hundred ninety s claims put them indefinite for a court to simply fill the man please look at judge crabs discussion of he's not a licensing expert she can't fill in all these terms about cross licensing and therefore even if they had turned about and said they would accept a license there still wouldn't have have a license and there is an enormous amount of evidence on the record to support it is because motorola made outrageous demands that are that judge wrote markdown to be one hundred twenty five times in that case what a reasonable royalty would be no one else we have a theory here that will put motorola to the position where it has to make an offer that is reasonable that theory could end all of this litigation it is a game changer only this court has the power to step in and say yes courts can decide what a reasonable walty is which goes back to judge chen's question motorola admits that it because judges all the time set while ts and fact longers all the time determine whether there is discrimination or and what is a reasonable rate the term reasonable has to have some content to it and the s s o is believe that the only ones with the power and the bankroll to be able to hold the promise source to meet their obligations all are parties like apple so then why did don't you just bring these  claims or desires for getting a friend right from the courts and just embedded right in the infringement again because you can't your honor judge posner for example does not have before them a single claim that everyone there is no case out there that would set of brand weight for the entire portfolio and once that is set the whole the whole structure of settlement would be changed but it just feels to me like you're asking us to issue advisory verdicts whenever somebody wants to know exactly what the french rate would be without being obligated to even accept it no your honor we're not asking for  on motorola's part to make a reasonable offer if motorola's offer is twelve times the reasonable rate someone has to hold them to it a court could say at a minimum in this case we had a claim that that that that rate was an reasonable value this is your breach of contract claim but she dismissed it without prejudice and nobody said you don't have the right to bring this claim she just said i'm not going to reach it here because of the companion infringements it's an misuse you says oh make you an offer it's somewhere between a million dollars and twelve million dollars and we're going to let a fact finder decide the difference you would say you know you've got to give me a reasonable price and you could go to court because the price has to be a market price that's exactly the position that motorola is in only the courts have the power to determine what the frand rate is not in the context of a specific pattern suit it won't happen there in the context of a global litigation that sets motorola's obligations so let me get this straight you want one judge set global royalty rate for an entire patent portfolio say here's the value based upon all sorts of benchmarks that are perfectly and i wouldn't say easy but within the head of a court to figure out your expert reports i guess to say here is the four and rate for global rights baseline with additional bells and whistles and they can but we're asking for a baseline to be set if the baseline is twelve thirty five then apple will be in a horrible position at the negotiating table we're not asking for a bargaining chip for us we're asking for the court to step step in and set a raid or at a minimum a range of reasonable rates as judge robe or did that well that will almost certainly resolve this whole global litigation