former chief judge and judge wallach who's a member of this panel served for almost a decade with with judge posner and i understand that well it must have been for sixteen years and because i understand that they both began pretty much at the same time and when two judges joined the bench almost at the same time there's a they become friends and and and also the judge prepared to hear the case he's going to listen to the transcripts because our cases are our recorded our arguments so listen to the transcripts and we're going to reunited in our fifteen dash nineteen ninety six and we have a number of parties involved in the case and i want to make sure that i had the the the time for the arguments correctly and ashley to help me by speaking at the time opinion on track interpretation is a question of law second primary goal of contract interpretation is to determine in force the intent of the parties third the intent of the parties is determined from the plain language that provision was extinguished by any of the subsequent agreements yes which agreement and what provision extinguished it well in the two thousand  at separate separate so it seems to me that that it's quite clear from that language that the medtronic agreement remains in place except to the extent that it may be inconsistent with something in the two thousand  if new devices are considered to be infringing then roski provides notice once the notice is given then a d j action can be filed and even where a challenge is made the license remains in place and loser pays so let's have sort of a basic you might say generic overview of a potential d j scenario and then you had in that two thousand and six agreement and paragraph our graphs eight and nine and then continuing in ten but at least eight and nine but sort of reiterate th action there is nothing about those of pace so the question in my mind is why why is that missing and what is the impact of that and for me it seems to me that that means that  the loser pays provision in the ninety one agreement remains in place tell me why i'm wrong but i think you're wrong about it because since it was a complete agreement and since they're having the other provision about these being that the loser pay provision under nine hundred ninety one to slide right into the pony being more how you then reach a very silly conclusion which is that moran ask even though they never agreed to pay  morning may please the court this was a fight between the trying to hammer out we were on the sidelines even though guy was the exclusive licensee through these various contractual arrangements including the amendments to the  honor our position is it doesn't apply to us but i recognize that and we did argue that it was superseded we accept the district courts i mean that it was not superseded so for purposes of today we assuming that it's still in place don i'm not i'm not arguing that it was superseded but his position here is that it did not it was not able to recover any royalties was not able to jurisdiction to enter a judgment of not infringement against us because we never made a claim for infringement that's what the judge found we did not assert infringement we do not make a claim for infringement and it it's part of perhaps if the validity had been decided that judgment could have affected us because of the explicit license and got been extinguished but as to infringe meant we were not in a position to make a cla that and that was the basis of the declaratory judgment action so the one nine hundred ninety one loser pays provision that said when we're no longer contesting that are arguing that it was superseded but it doesn't apply to us action challenge in willie's assertion of infringement then the losing party has to pay attorney fees but having never made that assertion you can't be those in court and to answer your question judge arena before we're asking did step into the shoes because they were given the right to a certain frenchman they were given the right to recover the royalties directly not through guidance are merely as a sub licensee and were paid ten million dollars as a result of that agreement paid legal action then wouldn't god and also be responsible for those damages not of tourney fees damages not if we did not make a claim for infringement i don't see how it could and we were not in a position to do that because we given up those rights with respect to medtronic only and that's what this case is that's why i say it's not our fight i may have had other rights if i could just briefly address the timeliness issue i think this is a very straightforward application of the rule the rule says that you have to file your quest for attorneys fees by motion within fourteen days unless there is one exception the substantive law requires those fees to be proved that trial is an element of damages that's not this case that's the exception did do prove attorneys fees as an element of damages at trial no if not you have to file within fourteen days but what about the advisory committee  contractual or equitable basis for attorney's fees that time and fifty four d still apply so simply saying it's a contract doesn't answer the question if you look at the advisory committee note it says rule fifty four d does not apply to fees recoverable as an element of damages as one sought under the terms of a contract it doesn't excuse all contract issues and says when it's hot as damages that wasn't done here and the distinction between interpretation and construction at least as far as the standard of review goes because that's what this court would apply the standard contract interpretation i agree it's minnesota law but it's so the standard as to the application of rule fifty four d i believe that is a question of law and one that this court can just answer in applying the rule good morning may have police a court i'd like to start by addressing the function that was raised regarding the loser pays provision and whether it survives the amendments that were made to the contract i will then talk a little bit about the architecture of the litigation polling agreement and i'll address our position on the rule fifty four issue starting with the loser pays four times the murawski  family venters entered into amendments to the one nine hundred ninety one license agreement that they signed either through one of the representatives or one of the individuals in the murawski family backers and in two of those amendments that would be the august two thousand and three in the february two thousand and four amendments they modify and the loser pays provision so this provision was well in mind not only tangentially that's correct ok so when you get to the litigation tolling agreement and let me just give a little context for this and talk about what's one of the broad benefits that the family ventures received as a result of that agreement be an opportunity to see what products meant tronic was introducing into the marketplace but try it when they introduced a product would send the family ventures representatives the product manuals information from which they could assess whether they thought there was infringement and at the end of the tolling agreement then there would be this process of murawski letting that tronic know what if any claims they thought were the contract if we went back to the original ninety ninety one agreement and look at that eighty two zero six you can see that what is identified there is adopted the ninety ninety one agreement a less otherwise amended i would go to the language in paragraph fifteen your honor where to the first clause and then to the last sentence  this is at eighty seven zero eight except for the august twenty eighth two thousand and three settlement agreement the medtronic agreement and the amended original agreement and then if we look back to eight to be amended as necessary to conform with this agreement but it but it doesn't say the ninety one agreement is hereby incorporated by reference it does not say that but i think it says and in fact the country s except for that agreement this agreement constitutes the entire agreement and understanding so there seems to me that's expressive language leaving the ninety one agreement in place position with respect to the loser pay provision because if the ninety one agreement simply remains in place except to the extent inconsistent with the two thousand and six agreement that still doesn't answer the question of how murawski stands in the shoes of lily or guide i think by participating in amending that agreement four times as a party they have undertaken to stand in the shoes but i think the district court's grounds which was a start they were stopped from denying the benefits of that license by taking advantage of the or a start from denying the obligations of hundred ninety one agreement while taking advantage of the benefits is a ground that leaves in place that loser loser pays provision in the sense that if they want the ten million dollars of the get under the l t a the right to assert the license and the royalty rate from the one nine hundred ninety one agreement against the you know the developing medtronic products they have to take the obligations of that license so well as well guidance stands in the shoes of lenny but marosi made itself a party to the agreement you were at you had observed early on that they were in the background in the one you want to bream and they then stepped forward to take full advantage of the license agreement in two thousand and three two thousand and four and two thousand and six by signing on through now even if they even if they obtain some benefits under the ninety one agreement well i would go to paragraph nine of the trolling agreement at appendix seven zero six that lays out the procedure that is going to be followed when when alternately there's a nine contains both benefits and obligations and certainly more ascii undertook those obligations so the question is to the what extent are they obligated under the separate provision in the loser pay provision in did agree to it by by signing on to that tolling agreement and saying that they were going to amend the ninety one license consistent with that in point that's why the two letter agreements that i referenced are relevant here because in both of those situations they specifically changed the loser pays requirement they clearly understood it apply well but those agreements related to different circumstances different patterns they could have could have just simply said we're going to explain which any see obligation maybe there is a potential for the obligation of the section to eighty five or some such other thing i don't know that you can read that much into those agreements well i think your honor that it's very clear about what the parties did here was to modify the provision when they thought that was the right way to reach whatever deal they had under consideration at the time and when they entered into this litigation tolling agreement this was going to govern what took place between the date of the tolling agreement and the expiration of the patents and they  chose not to modify that profession and by the expressed terms of paragraph nine or excuse me of fifteen in our opinion it continues to stand because it was not modified and it was only modified to sept fourth and the  i think very detail listed all the different amendments to the ninety ninety one agreement the new obligations and and concluded and i think it did so on the background that these are sophisticated partners you know we were dealing with and with and they have sophisticated lawyers and the one thing that was not amended in the tolling agreement was even loser pay provision and found that that's why it applies what we're trying with that reasoning well first of all each time they had a new declaratory judgment action they had to find a different to pay attorney's fees and that that just goes through this whole thing and the district court's decision just ignores that she reaches a decision which completely contrary to the intent of the parties which wasn't any judgment against that when one for the small point the the translation is you've got lilly with an exclusive license literally then transfers it to guide and so now you see agree to do and they same around your party too so you have to agree to it also and so we go ahead and sign it but never did we ever comprehend in our wildest imagination that now we have to pay