in determining this motion that was filed after judgment was filed after the michigan court case was filed which makes it the second filed case and so even under the principles of comedy this of settlement agreements should be separate lawsuits filed as a separate complaint that was not done here in which case that would clearly the second case under under the county rules and then under the various cases that have come to this court and to the sixth circuit there was always a case where they always in this circumstance would come to the court from the michigan case side like the  ruled upon in that michigan what would be the mission inside the case here and then that was appealed to the court and then you could evaluate the standards of review whether it was a summary judgment or whether it was or whether had the in mind in terms of procedurally when you put it in this agreement that we agreed that we would submit to jurisdiction if jurisdiction was not in evidence say say they couldn't asserted this release against us in the michigan case so this is an issue of michigan case it was an issue of michigan case before the motion was made in the or i guess it was the same day they filed on the same day  this court is active in the michigan court the state it's hand that's correct so what the problem while the counting is usually determined by the first filed case not first action but but but at this point i our high was certainly first  here the exhibits to my right there the green and and the red are the two products where the product at issue in the case the case was a trade dress case those products are made from the same hole they're made in one piece they're made in multiple sizes i think twelve to fifteen sizes those are the products that are ever prized on defended by the soles website those are the those are the products that existed at the time of the settlement agreement explain one eighty to the second whereas clause second line if that the lawsuit was limited in terms of the defendant's products to just one piece shutters in that you your claim would not have extended to or you would not have insisted that your claim extend to trade dress violations of the custom shutters as well there were no custom shares in the dive solve product at the time the last effect the only evidence customers in private conversations there was absolutely no way we could have ever know at that point in time we did not i doubt about the fact that they even had a custom shuttle program until february of the following year which we tried to purchase and this is all the record we tried to purchase this product and it took several months to get the product to the point that even if we have this product if we see this product  in fact the appropriate interpretation of that agreement is to exclude the products which are now it is shoot in view of the breadth of the language that's been written now or hereafter c intemperance claims of trade dress for perjury and a district judge said that if you really intended to exclude such an obvious evolution that's not his word but but that it should have been excluded rather then the breadth of this language or what's what's wrong with that we don't have it's not obvious evolution in the sense that there are dozens of companies that only sell standard products standard size shutters that itself is narrow by definition that's correct moves and however there were no exclusions for any of those patents apparently they were all listed i recognize your response  explicit on the attack and said that that burden was not met that they were entitled to assume that they were home free well to me sure a lease was only related to the claims of the traitorous infringement any and all claims of patent and trademark infringement not only those claims specifically identified in the complaint  they met all the patients of the settlement agreement they labeled properly they put downs all building but i saw back on the custom shutter they didn't do that so there was intent in the record even from their side which indicated that they didn't think the observation that we are parties who are involved in litigation with they're represented by counsel we're we're we're a legal issues are clearly the subject of the discussion and the parties set out to resolve that by settlement that there's no reason not to construe that strictly by its terms and within the four corners of the document giving full recognition to the fact that this is a resolution of matter in dispute what's wrong with the the district court's interpretation of this agreement literally by its terms is is stated at least from a technical perspective on a zero on a three where we say that this is intended to settle the trade dress rights and whether protected true address rights exist or do not arising out of the related there too without regard to subsequent discovery or existence of additional or different fact pertaining to the claims pertaining to the such claims i guess it's there's an error pertaining to the strict court thought otherwise right and also the second aspect of that is it should the this release cannot apply to products that are not already available to us to see then why isn't our here after if you intend to exclude unknown future products because the now or hereafter are facts related to the place price that created the case so we well i can i reserve additional know and that therefore the fact that it wasn't explicitly excluded from the settlement agreement is not so illogical but for the augustine medical case that this court has done where they've addressed similar type contract interpretation in this scenario then your honor you have facts that show that the product the shark was the custom share was being made so you take this release talks about allegations relating to that claim is reasonably on disk did that it was not yet on the on the market at least on the open market or at least not made known and it is that if we take the interpretation we also ought to realize it with their largest customer for whom this product with was being shown in a hundred different centers around the country their record shows that they were told by the customer that we were making custom and standard shutters and indeed they know they were selling custom and standard shutters to this crime for whom we were replacing so from just from a preserving a claim for purposes of the release so they knew that there were custom shutters out there they'd made it that they knew that their customer shutters out there if they know according to traffics also from this court that utility patents are made  are something that you have to look at to determine if traitress is viable what you see then your honor is that you have patents custom patents that they would have this court would have had to look at to see if those claims are viable for trade risk making it from a legal perspective patent infringement claim bopp potential and as we know under the statute offering something for sale is enough to trigger a pet infringement clase and given the fact that there are no stranger to litigation to do the befell upon them that to carve it out to they were on sufficient notice is this court has pointed out honesty medical whether fact or differ in that it is said if you aren't sufficient notice of the claim you need to satisfy that lesser threshold you need to carve it out duty doesn't become to fall upon a status i do stands in the michigan complaint the same as the patents in the ohio complaints they are different to one but they were disclosed in the michigan complaint but they were not the subject of the litigation which again goes to honesty medical and if they were so they the seventy patents and now you're saying that you have a free license under all seventy you know we're not saying we're free like this week we were saying that the implied license taken up to the argument that they're saying that there's an implied my since cannot be used as an office your honor i'm trying to because you have to it the product to we can't just look at the abstract of them had an infringement claim you have to look at what's the genesis that formed that claim and the product that formed that claim which is what this release talks but you look at the allegations that are sitting beside someone can come up with a new product litigation you know how you know if it's a cunt if it's still a custom shirt or yes your honor you're still entitle to you're still entitle to if that's facts are sufficiently related not to be directly related but if the basis for the claim is sufficiently related to the pre wrong or right the or rather the fact is when it's the deal they struck in the deal they struck has been interpreted by many courts across the country that if it's this such broad language you can take a post and say you say it doesn't matter whether in fact they that they liberated their entire business for the next twenty years from as as far as this competitor is concerned that your honor that's the way it could be done it hasn't borne that cell phone in the in the real world but that's that's the way it shutters that claim is released that's the language that's in front of them in this release here and that's the language that courts across the country have said sorry if you are a if you are a party that is represented by counsel and you're negotiating to do the falls i shudder to ask but with the complaint have helped us if it had been included in the appendix in discerning what products are involved in the complaint talks about talks about shutters and general saying that look when you make these that the release will cover both because there was no distinction drawn either in the complaint or in the settlement agreement itself is that the shutters are also this settlement agreement incorporates the no it's not the same different roseland just not wrote it yes it's not it doesn't have the prose if i recall correctly doesn't have the prospect if language that is found in the second paragraph of this release is in front of you it's more limited to just what happened before in the if the issue also on comedy that's been discussed the the point can be made there is all agree that the district court ohio would this would exercise jurisdiction over and indeed the district court in ohio had the standpoint indeed there's a case that the that the attack go into light of which the press versus sunni smith versus s c c case which relies upon its own case in the sixth circuit that says the truth of the decision by the parties to have an entity exercise jurisdiction in this county k c o w e n they talk about arbitration the court says forget who filed first or felt second look at what the language says and if the language says you need to go that is and where this court that's going to trump it and so from a fulfill the condition preceded to enforcing that would be i give you notice in our instance it's filing in the state of a family unit district court the other thing is you have to substantially perform the consideration obligations now the record there's evidence in front of you that has said that we did labor we did color change we did be the main changes but even if you took away the labeling as he contends there's still substantial performance under a us crisping next letter matter performance this is raised as a matter of contract interpretation that is if your client didn't put the label on him then the custom showed that that was evidence along with other evidence something various have a label on the district court then i mean the appellate court that has to look at it go is what the district court looked at so clearly erroneous based upon the record that it has or in this fact and it's not because there is actual evidence in the record that says that language at the very tail end of that paragraph it says without regard to subsequent discovery or existence of such additional and different facts pertaining to the claims except as provided below in paragraph four here in which i i read to the paragraph five if there was there was a and for paragraph five deals with the stoppel and compromise of claims and talks about should issues in the trade dress infringement and or claims of palming off it's true be assertive began for whatever reason and it goes on it says in effect that job you'll be in no different position had you never signed this agreement in the first what why is that paragraph limited to the trade dress infringement if indeed the release his directed to both trade dress and all pad because the issue of the necklace back to the first day that your honor goes to the concept that there were three changes that had to be done which related to with that time the traitorous claim which was what was in front of the court i mean which is in front of the court as the counter crime so what they're what there was simply as i understand the intent of that diane sawyer building products didn't do one of those three they had the ability to go back and try and force it and we in turn would retain those defenses but that's the only reason being is that that's the one claim that there were some specific having been there but based upon the record your honor as i understand it the point is that that was just because those were three changes that were required as a result of the traitress claim to change the appearance of the shutter hence what they were saying is to respond to one point made the complaints from the two different cases are not part of the appendix but they are part of the attachments to the motions stay pending  was thrown the word pact was thrown in to address the fact that paragraph through related to that now again we agreed to settle this case we didn't agree to get defraud it's not an enormous agreement well it's not that it's not so much that how do you draw down when you when you read it because they apparently had some designs on custom shutters that they were going to make and we had no idea what they were and that's that's where you know if you're going to read this language the way they want to read it and they're reading it as a license essentially to all of our custom third party attorney read it but that certainly wasn't the way the parties wrote it at the time that they so the case and the best evidence to me is this this product this is the product that we bought we bought two of them neither of them has a labeling we bought those products not those specific products but later products after the settlement to check out the labeling and it's all the labels for the standard size products it's not we have  judgment i mean the last time the last time one of the times i was up here in the use of the bank's case we're talking about inferences from inferences in the summary judgment was reversed on the fact it was a contract interpretation not a question took and ran with and found that the release flight to this product which wasn't in existence of the time of the of this september two thousand and four settlement agreement in any way that we could see