licenses for such intellectual property from university would be granted to company pursuant to a written separate written license agreement to be negotiated in good faith between the parties containing such reasonable terms and conditions as mutually agreed to between the parties so why isn't the natural meaning of that language that if you want the license then any licenses that you need from any law that might oblige you to get  under law requires from the university but again the agreement characterizes the licenses as requisite yeah but it also says if you want a license you're going to get corrected license it true that you didn't make this requisite argument below what we argue below was the numbers and please answer my question is it true that you didn't make the requisite argument or we didn't call it specifically that's correct  to commercialize the technology so was that context of we were arguing on summary judgment the court basically did a reversal of its position with shortly this is an interesting point to me so the district court said provision was a reasonable reading your the position that you advocate was reasonable interpretation of the contract and then later said there's another reasonable interpretation of the contract your right that is correct but the only thing that changed between the time that the court issued its original determination that said that ours was the most reasonable and the time that it said well mike brown has a evidence which we don't believe was right then there is an issue of fact is whether that extensive evidence matt well so i guess what's wrong with thinking about it this way there's a threshold question about whether as a matter of law there's ambiguity let's assume for purposes of this question that there's a conclusion there's ambiguity so now you have to look outside the four corners of the document and various things may be relevant in general that's a fact question but why isn't it true that like any fact question their record may be such that summary judgment is appropriate in the resolution of that fact question clearly if the facts were such that no reasonable jury could find for us an sorry we disagree but we think that that language doesn't pose an obligation on micron and put the language of clearer sure has is the case a pretty much any contract out there but i don't i mean i really don't understand how you can at all there would be no need for that it in effect the contract in other places says what micron can and can't do with these annealed wafers so it's very clear that micron was able under the license that was granted in the work agreement to analyze the way first for noncommercial purposes only so that limitation is already there so the question is why is there a mention of a commercial license at all in the work  agree are you arguing that they misused the way for an office no your honor they'd they use the wafers for internal purposes but then they went ahead and commercialize the intellectual property because again the work agreement but it's based on their way from now it's a little unclear you wrote about relying on that is this the reason for breach of contract there's nothing in the agreement that says you need a commercial license on last you independently develop  the products are back to see the actual proper haps that's because there isn't anything in the agreement that says you need a license if you commercialized your honor we think paragraph two see is clear and as a matter of fact the district court agreed with rhetorical what else would the existence of a provision about commercial licensing do and i guess i'm having trouble understanding why the answer isn't fairly simple this says university thinks we have some ip rights and therefore my crown is getting from the university in this provision a promise that the university will negotiate in good faith in reasonable terms if my ground it benefits the university they agreed to take a look at the wafers and decide to consider whether they want to take a license so they started down the pa doing the research that was necessary to help them make that determination they agreed to do that now no your honor that's not what this agreement is about if they can read allies the way first know they agreed to and you know them under a process that was for all rights or to the university and then and if it turned out that i had a valid patent covering it and my friend might come back and say we want to make five hundred million of these chips using your process so we'd like to pay you money but that would be true whether or not agreement was to ensure that if it was performing these kinds of processes for commercial entities that it wouldn't have to fight infringement battles down the road if the company decided to commercialize the very intellectual property that the agreement is that that's not a consideration i would think in that circumstance no there is no consideration because that's a mere agreement to agree again that would be an agreement to agree and the license agreement wouldn't have to provide it's not an agreement to agree is just an agreement that we're going to spend some resources to do w analysis that will inform a possible license agreement later on your honor at least in our view that means that effectively the university is doing work that it's obliged to do and m honor again mike brown was it necessary for that doctor lighting had his own materials he could work with and in fact did so we didn't need micron to have doctor lighting trainers ph d students there were materials out the this is material that is proprietary to micron the university wasn't able to analyze it it wasn't able to do anything with it except perform the annealing and send it back so that micron could then figure out what the benefit was and the university according to micron was entitle to zero in which are there was no compensation for the work itself and according to micron it had the right if it felt like it not to take a license to infringe decision that the motion to dismiss state correct that's correct the issue why the motion to dismiss on the basis that their competition was the most reasonable interpretation that's correct but i want to make sure the record is clear is that the full so the district court ends with a colon and that clause there and then sort of restates what the court enterprise to be the universe is pleading there that that it's there isn't the most reasonable reading of the contract called  then to page one thirty nine of the appendix where the court restates essentially the issue that the university raised with respect to its understanding of the work agreement and there the district court states that way rather than the most but a reason want to retain of the work agreement however conditioned the transfer i'm i can't promise to seek a license from the university if it ultimately site to put the university summary judgment motion we argued both and we argued the opening of what i thought right we argue about we argued that there was an unambiguous interpretation of this agreement but if a court determined that there was not an unambiguous interpretation of this agreement in my  we focused primarily on the liability limiting clause section six and the district court actually went into just why of page one thirty six that's what the judge is discussing that that's right the judge is discussing the go judge because  that even under the university's interpretation of foss to see there was no breach of contract claim to move forward and district court ultimately determined that there was an ambiguity there as well and determined to allow th e language here his hand picked us so that evidence outside the four corners of the document is legitimately considered and indeed summary judgment as it is one way of doing that why is this a case in which the evidence submitted extrinsic evidence submitted drafting history some of the testimony from you about this negotiator  arguments with respect to the extrinsic evidence and also completely analyzed the university's arguments with respect to credibly but that's a point about the process the process work well but in order for there to be summary judgment again on the assumption that there is no there is ambiguity there had there would have to be only one reasonable fact finding that could be drawn from this evidence and why does the why does the evidence  your view rise to that level well below your own or the university only raised one particular portion of the testimony in the record with respect to leslie miller nicholson's testimony below was part and parcel with obligating my client to take a commercial license upon commercialization and that and then they also argue with respect to it being there being a separate part of it to negotiate a license in good faith but when you look at that testimony that testimony is really just about the fact that michael had the option to choose whether or not it would seek a license and then the university was obligated to negotiate in good faith to reach that license and that's the obligation  and something happens and then we have the word then then write something which happens right it's like that and if then statements programming it's if if that condition occurs then something else will occur in the first editions so we're looking at the wishes as you know if you would like to as opposed to if micron wants to commercialize that's growing to commercial mileage yeah yeah what's it going to commercialize or has commercialize right if if my client desires to license that may have been a way to say that but this contract here very clearly puts that the predicate determination of whether or not my god has wished to license from the universe as opposed to we get into commercial usually talking about their party involvement i'm sorry as soon as we use the word commercially usual talking about third party involvement licenses and in all aspects of i p o and it just it just i think it to me and it's true it really pushes the the extreme to not look at the word for use the ip for commercially commercially you're going to use it forget about the licenses that come later but perhaps it would be a type of field of use limitation that would be included in a license that m and then if you look at cost five c of the work agreement there page ninety three of the appendix it gives public and publication rights to the university and state university its researchers will have the right to publish or otherwise disclose the results of work performed by the university so the university was getting something out of this agreement and with respect to section two c i think the university's argument is premised on false promise did every single term in agreement must somehow provide a benefit to the university and we see in agreements license agreements for example all the time that there are releases releases go one way to one party and then the next paragraph as at least it goes the other way to the other party and that's just how agreements are written but there's there's no indication that university wasn't going to benefit from this agreement in some way shape or form through by cunto how micron's investment billions of dollars into its fabs order to be thank you i don't think we're going to set it better than mr charger so what benefit mike brown derive from the university's work it was seen whether it was worth investing money in a process that it asked the university before and the fact it was a failure mr shorts or first of all this is an appendix pages eight nine it's the unibus the decision below the change in the language of the agreement what the judge cited was miss miller nicholson's testimony that the changes to the licensing paragraph quote had meeting mr shards or took the deposition of missile or nicholson but never asked what that meaning was and in fact there were more changes to this particular provision provision to see then just the issue about  license for example the acknowledgement by the company that the university had proprietary interest intellectual property was changed to what the university represented so the record is completely devoid of what that change actually met this is something for the jury to determine is a true statement which is why we are here they were pursued and sued because they didn't enter into the requisite commercial license so again to determine that this testimony somehow means that micron headed it in so they could be sued for breach of contract he was talking about being sued for infringement she didn't say your honor that's the point she didn't say they could be sued for patent infringement i think the context arguably is pretty clear it's what she was going to maybe arguably clear your honor but that's not for the court to resolve on summary judgment and then finally mr shards are some point that what she was doing in saying the most reasonable interpretation was our somehow just parroting back what we said if you look at page eight of the appendix she said in an earlier or