morning to please the court this appeal comes down to whether one phrase in the party's contract is to give it meaning or not the phrases quote such as an emergency shower or i watch unquote bradley use this term in section three point one of their license agreement in two thousand and one this is a turn let me ask you one question with that we have the in you're focusing on three point one and one point five new green but  o we have a question before us of the track to your petition which is what this is one or both of the parties are pointing to documents outside of the contract that says that they are you indicate the intent of the contract in part it seems that nobody here does that it seems that everybody felt this is just more than the contract provision is that correct is there anything beyond the four corners of the contract we should take into matter in the sense that it has to do with how that language is applied in the industry and what these what these products how it was sold and what is or is not similar to events of the shower not well so but but yes ok so we're basically confined to just the language of the contract yes you're up to that that's that's correct and this has to do with these thermostatic mixing valve which is lawler's business invented them it's a small company in indiana no one lot of clarity in it yes and in that's why that's why we ended up with with bradley in taking the position that it that it could use the average royalty price  over time lawler do bradley a number of notice of default under the agreement the one that matters here is the one that has to do with the payment of royalties on sales of valves with the cabinet ip accessories and the failure to pay those do with the way the parties conducted themselves and took these findings i would i would stand on the other issues but that is not an issue we brought to you for this appeal let me ask you if we have if you agree here  and that's a limiting term but the order below and it does not deal with indiana law it doesn't do the dictionary definition it doesn't deal with the judum generis the principle of contra construction and neither do are there are there is no rationale in the district court's opinion for saying that that we can just treat that as an example of products well worth the money that you send that your your  think we know what anything can be a product if we read that such as out of the term the oxford english dictionary of the blacks definition that we supplied to the court it clearly is is of the kind of character specified it is a like similar or the like kind it is having the particular qualities specified none of that is recognized by the district court's opinion none of it is recognized by bradley india's frequently music case so that it's a limiting  excess reste with it but those those facts are undisputed in the record in contrast to the showers in the eye washes which are independent products themselves in fact in bradleys literature in the record in the appendix  be that it would be remanded to the district court with with instructions that the the construction that law is presented is the correct that there was but a breach and that the material breach means that that lawyer did in fact have a has to be found that isn't trust defined it i'd submit to your honor that that the record includes evidence that is uncontested that shows that that the pipes and habits are not such as as the showers and i was as if that it was this course determination that that's that that's not sufficiently clear from the record it could go back to two of the district court for that determination based on the record that's been  issue the patent marking and the audit accounting fees and the confidentiality are not not an appeal those issues were not raised in appeal so it's just the the audit i'm sorry it's just the the royalty issue has to grossman is there in vienna case lower interpreting such as a limiting term i think we said we cited case law in our great brief your honor there it was starting with supreme court precedents seven circuit precedent indiana precedent and we included some examples from this court where i think they used the for an abstract meaning in the context of just what the dictionary says and i think we're all are sites some dictionaries that say it could be limiting there are there are other words there's no presence of question of reading the contract in job growth in light of the circumstances  now i think what what you want to do is you want to redo the contract in light of the circumstances and in fact what the district court did here i think it goes to a question the judge all raised as as well as yourself your honor is the  district court judge didn't consider extrinsic evidence in fact it was specifically excluded page twenty four of the district court's opinion he cited that wallers attempt to use extensive evidence was improper and wouldn't be admissible because under indiana law the district court agreed with the parties both already stipulated that the contract was not ambiguous on page twenty three in the appendix the twenty three the district court's opinion the judge said it i agree with the parties the contract is not ambiguous under indiana law with unambiguous contract we look to the four corners of the agreement the district court judge cited that will be lation that was not beginners didn't mean agreement and what it meant correct that that  that that was not ambiguous nature you felt based on your own interest that's correct that's correct but the judge made a specific finding that the on page twenty three of the decision that it was not ambiguous the said the court so fin the contract is not ambiguous having made that finding that then balin the district court judge to the application of indiana law which was quite clear that was and was in an ambiguous contract you look at the four corners and the district court judge did just that he rejected all of the extrinsic evidence on which lawler relied and looked at the four corners he said page twenty three of the opinion that there is nothing in the agreement that would support wallers interpretation they take the interpretation they took various interpretations court first they started with their grammatical argument that there was no comma and that was what made the phrase such as one of limitation then they said that the american products had the same kind of character that was index page tool for at the hearing they then said that the products had to be freestanding again a page to a tool for at the hearing also in the appendix at age eighty three twenty nine they emphasize that it's a free such as can be for example is cited in the in the cases in the red brief where it was used specifically it was stated that those in those cases that such as was was not a word or phrase of limitation it was a phrase of example the dictionary definition agreement that was drafted by bradley and waller both represented by counsel in conjunction with the magistrate judge in the in the the court in indiana event has no argument for us that it's interpreted against the draft that's correct and in reading the settlement agreement the settlement agreement is very specific which is included in the appendix it's a fifty one but section sixteen of the settlement agreement which is that appendix page eight fifty three sections twenty and twenty one of the settlement agreement which is that appendix b j fifty four are very specific that say all the prior discussions negotiations between the parties are wrapped into the settlement agreement that there is no there is nothing outside of the license agreement which will control  so now in the in in trying to proffer a a definition that of that the phrase such as is limited in that they started out with the no comma the kind of character the freestanding and then said also that it had to be sold without reference to a valve or the value of the valve in the motion for reconsideration but they filed in the divorce or all arguments would they be relating to the nature of the product they seem to the arguments directed that at what such as a means in the setting of a contractor and it in the setting of the contract the contract license agreement was entered into as a result of a settlement of patent and trade secret litigation the patents involved are patents and go just to a valve that i think when you look at the four corners of the license agreement the intent of the parties was tried to limit the payment of royalties to what was invented and what was at it which was was a valve and that is why the section three point one in combination section was put in there but the the this is the suggestion that it has to be freestanding or of the white kind and character as a district court said invites the court to rewrite the agreement which you didn't want to do with there's no reason why it has to be freestanding why they picked that really points that you would only get into if we were to agree with mr hunters argument in other words if the case went back then the issue would be ok is a particular item similar to or like an emergency shower and i wash then you'd be getting into that right that i think the district court could recognize with without getting into the specific fact finding of extrinsic evidence outside the four corners that the district court could recognize all of the products  only talking about cabinets and piping these are large plumbing valves that are sold for industrial applications that make sure that the water gets delivered would not scold the user as a you know in hotels or or factories or other things because there's a thermostat in there that sets the temperature to make sure that the temperature is not too hot or too cold but with with their all plumbing products they're all products sold by bradley there's no reason why it i think the court could look you're almost right judge it's almost like a medicine chest cabinet that you have hanging over the sink it's really just it's a stainless steel box and these thermostatic mixing valves in fact some of the building codes and some of the states require that the star square box made out of stainless steel that's sized to be the the appropriate size to house whatever valve it's opponents different from a canned the you have under a sink where you can put towels are correct right this is it's just a stainless steel box and has will have an opening of course that you can bring in the plumbing connections so it can connect up to the plumbing system of the building in which it's being installed but it's just it's simply a box and the piping that's it is you know just simply standard piping that connects the valve up to a plumbing system and you know in a building of some cut some contractors when they order these valves like to have a turnkey operation they like it to be livered with the piping in a box so that when it gets to the job site the plumbers can just look at right up to the plumbing system other contractors like to just buy the valves and they they do the assembly themselves so we're talking about a very small number of valves that are shipped the total amount of royalties that were withheld over a four year period were alleged to be forty thousand dollars out of about a million dollars of loyalties that have been paid you asked i think what happens if the if you disagree with bradley's position that you think that the  the contract would be ambiguous and that may be does it go back and you were first does go back to the district court for a fact finding i think there the district court would would have to consider the basis of the court's reversal of course and see if there was additional evidence but that wouldn't in the case because of that the court decided there was no breach that bradley had paid the royalties to that it was obligated to pay but there were two other reasons why we thought that there would be no breach one was we didn't get proper notice on the oil to issue we only got notice on patent marking and the royalty issue was was raised for the first time in the briefing materials at the district court based on the breach the other issue was material breach under indiana law a breach has to be material breach in order to justify terminating the the agreement we argued that the small amount of royalties which we thought were properly what we thought we paid properly didn't justify i mean there's been no finding of material breach that's correct the judge so even if we were to agree with mr turner he would have to go back for determination whether there had been if there was a breach it was material corrected the judge never reached material breach because he said there's been no breach bradley you paid them out of loyalty to which the court determined that it was appropriate for for the  to pay but isn't it when you look at the various arguments that i think the lawyer has made as to how this phrase such acts would be interpreted as a phrase a woman  not only did they raised all the various things that they did in the district court in their motion for consideration they defined it even more specifically in the motion for reconsideration which is in the selected pages or in the appendix at four fifty nine in four and four s they said that to be a such as product it had to have three specific satisfy three specific criteria they had to exist at the time of the agreement it had to be a separate freestanding product it had to not be dependent force that sale on the sale of the valve or use of it couldn't also use the lawlor valves technology and i think the district court in a motion for reconsideration which was denied probably said that's a lot to read into the phrase such as that would require that the district court rewrite the agreement and the district court said i don't need to do that it was clear to the district court that such as well one meaning is is is for example and it's acknowledged there are other dictionary defines definitions that d webster's unabridged dictionary of the english language but it also in that same dictionary while it said such as could be of the kind specified so that an alternative definition of such as is for example so that the judge read such as within the context of the whole agreement understanding the intent of the parties as trying to limit the payment of royalties to what was patented is a sit in the settlement of this litigation and that's what section three point one was was intended to do to limit the payment of royalties to what was patented and when the patented invention was so it was in full waste or shipped in combination with other products we tried to to be clear the objective of the such as phrase was to avoid having to be here to explain it it was just to give some examples and i think a contract can provide examples without provide it without those examples also serving as limits it doesn't read out that the the one for the for the first time i heard references and dictionary definitions are not in the briefs percent of our bradley at all i read about dictionary dot com but what we've presented is the oxford english dictionary and black's which lawyers use this was drafted by lawyers  contests does depend on context your honor and but there is no there is no function suggested by bradley for this language if it is not a limitation of some kind if it's just an example it's meaningless it has no function at all and none was suggested to you today it's it would have no purpose if it is not given a limiting function in section three point one and just a bit of a side note on judge shows question about the cabinet at appendix pages for thirty eight or thirty nine there's a diagram from bradley as to how the cabinet and the pipe accessories look with a valve it's it is just a plain box it is unique to the valve because the has cutouts there different shapes sizes as to as to how the engineer specs it and the pipe accessories are also unique to that to that valve on the point of materiality one aspect is this agreement does not audited amounts for cabinets and pipes bradley said you know basically thumb their nose and we're not we disagree with you we're not pay and so the contract provision says lawler can give a notice of terminations which it did dollars the audited years two thousand and one which is just a bit of a year it's really two through four is forty two thousand dollars the evidence in the record is that sales increased for brevity of these of these amounts that's at appendix two sixty six sixty seven dramatically so that it's at least a multiple of the forty thousand dollars plus the hundred twenty thousand dollars and on it these were well over two hundred thousand dollars plus interest of eighteen percent for several years were well over three hundred thousand dollars