not on the ground on every ground the judge and meyer cited but isn't sufficient on the following grounds what governs is the first i don't read your briefs saying that sale the sale of all the things that you actually transfer title to free and clear of patent claims to maxell is somehow making needed or know if i'd later maxell breaches other provisions of the contract in that view we have here an unconditional sale and there's no question about exhaustion applying to an unconditioned say so there are several reasons why i think that there is a conditional sale here first off new jersey law which the court failed to apply and interpret in the contract holds that the parties  there are those provisions including section seven point one would be subject to the parties introducing extrinsic evidence into what they meant there are several other reasons why seven point one wouldn't apply and wh conditions that are imposed first off at the very beginning of the contract it says that the seals are subject to the conditions in terms of this agreement and its point is decision that that would include section three point ten which together and interpret what section seven point one is going to take the position that seven point one was only meant to cover sales that were authorized through channels that were authorized simply  warrants against third party claims and under new jersey law where even an unambiguous contract is still subject to the submission of intrinsic evidence to explain what provisions meant and were the words of the contract don't always control it was error to dismiss those claims as an end by finding that it was an unconditional sale based on a provision when the  parties dispute with those provisions mean to most switch topic and i asked you to explain a little bit more about the trademark claim if you were trademark infringement claim one that includes any allegation that what maxell was selling while using the smart trish names was a modified good  bought from smart trish well our trademark claims encompass more than just the sale of the product encompassed maxell putting the  trademark until you have a website where they sold the products online and uses the trademarks to sell the product online but what about the products and sell the products and sell the products themselves and deferred from the products that smart fish itself sold but they were the same products that were sold to max out there's no claim that maxell modified those products or improperly package improperly package them however the one of the issues that is important in this case and there's and because of the special significance of discovery in trademark cases  products were sold in the authorized channels versus how many were sold in the unauthorized channels to the extent it is that relate to a trademark well because the extent that the all of maxell sales for the vast majority of maxell sales were through the unauthorized channels then what you would have is you'd have a situation where substantially all of the products that were being sold in the unauthorized channels were different than the ones that mac that smart fish itself was selling and so they're not different from some or substantially all of the products were sold in the unauthorized channels you would have a situation where discovery may very well result in in the proof that so therefore i'm not sure what the significance of that is if the product sold in the authorized channels who had authorized channels with well as it was i read the substantially all of the products that were coming in were not genuine and in our understanding nextel basically instead of selling through its authorized channels which was difficult and it that there are different products correct and we identified in our briefing a whole bunch of things there were different components molding software graphics the weight  which is the fraud allegations there's a lot of cases in the second circuit and since this case originated with this right we we would follow second circuit law on this which says in terms of pleading that you have to plead something other than a general allegation of fraudulent two that you have to plead something that would suggest that you would support a notion of action on their part as opposed to just a desire to enter into a contract what we first off we alleged in our stage it has anything is true numerous things that were false when made they didn't have capabilities they didn't have the capability to put things on the unfettered without majority don't sigh are plead any evidence that they knew that was the case well those things that were simply not true well but but stay with what's the allegation other than this the statement is not true to suggest that there was evidence that it wasn't true because they did not have the capabilities to put it on the shelf things were not put on the shelves they didn't have the capability to they didn't have the distribution channels in it that they claim but you don't see anything that would suggest that they recognized at the time that they lack the the either do you have it or they don't have it if they saying that we're positioned as they would know that they would know that and that if you if they say that if we have the ability to place things on the shelves without receiving without requiring approval they either have that ability or they don't have that ability i mean there's we don't see anything that suggests a knowledge of the falsity of that representation at the time such as intent can be shown by motive opportunity and circumstantial evidence of conscious behavior and we certainly did what motive and opportunity we buy that they were in a declining market and that they were trying to get this innovative product ambiguous contracts to be in target in for all the terms we interpret we think that attacks the purchase agreement it also affects the other many of the other claims that conditional sales and also what's inside the contract the scope of the contract that affects all of the different coins we also would want to have that recognize that the court itself found in the context of the fraudulent inducement claim that there are a number of extra contractual things that identify three and then went on to identify that the batteries were involved in extra contractual things but when it turned around the economic dock economic loss doctrine claims to the extent he's arguing now that he needed discovery to respond to the patent infringement dismissal and the trademark infringement the full that's not an argument that he's made before and so it should be weighed with respect to the patent infringement case that might not be apparent on the face of a single provision versus taking a step back i don't think the position that extrinsic evidence is always required is sustainable we see that there have been numerous decisions that we've cited in our briefing where but i mean if we did let me just say what i'm understanding to be the ition of the other side is if you look at seven point one it says one thing and you look at nothing else but if you broaden your focus and we in particular go back to the beginning of a contract you know in exchange for the various from mutual reciprocal promises or something we're going to do all these things and no we've got reason in the body of the contract as a whole to wonder whether seven point one is really conditional on compliance with performance of other provisions and we can't conclude just on the face of the contract that the sale from them to you was unconditional i think in this court's decision ab it makes clear that even under new jersey law there are situations in which you do not get to look outside of the contract you do not get looked at strengths captain and when you do have that language is clear as seven point one which literally says free and clear of any claims including that in claims i  claims it ruled on let's say half of one state law a claim and then it's applying to exercise jurisdiction at under thirteen sixty seven over the very state law breach of contract claim that the court had just addressed part of seems odd well i'm not quite sure what question follows from a like maybe for can provide some context so we was on the reach of science then when the court made the ruling on everything else invited the parties to put in additional briefing addressing whether or not there was even diversity in the case i mean are you aware of any other case in which  thirteen sixty seven supplemental jurisdiction was declined over a claim in the thirty six or seven is written in terms of a claim after part of after and issue relevant to the adjudication of that claim has in fact   if i could take it can you address the trademark discussion that we were having again with turmel i'm a little bit confused first i guess as to what's relevant cases say could constitute a trademark infringement claim when the as here which i think is undisputed everything max was selling was an altered from what smart fish had sold to mexico and yet  theory is there could be a trademark infringement or some sort of item act claim in that circumstance and i think it is a fairly unique situation and yes we have goods that are that were produced by my fish that allegation is in the complaint i think that that may not be the definitive question because i don't think i've seen any cases where the question is is are the allegedly infringing goods different from one the trademark holder itself the selling as opposed to the questioning are the allegedly infringing that's different from ones that are authorized within the us and so if we look at the case of original appellation which is actually one of the cases cited by smart fish that that case makes clear that the second circuit decision makes clear that if there the question of where the material differences lie is a question between the allegedly infringing goods and other goods authorized within the us so here we know material differences that bring them back within the scope of trademark infringement but you don't think they're allowed to say we don't want certain goods sold in the e commerce because we don't what e commerce consumers to be  germany i think like some kind of objects somebody had an exclusive license for a certain quality level object and this is somebody else was selling genuine articles from this right and i think that implicates two important differences from what we have and you do see the great cases where isn't there a question of quality control procedures not being followed or material differences right that either one of those can bring you back within that category commerce region i think it could as a matter of contract i just don't think that's i i'm not aware of a case that allows that delineation as a matter of a trademark and force an issue and i don't think that sufficient details about the conduct to make the allegation flushable why are the allegations here about the conduct in particular the one about having distribution channels in place not sufficient since that at least not using the word ability just actually having channels in place is something that surely maxell knew what it had  think that's where if you look back at judging omar's decision he really found even for those allegations that he considered to be extraneous to the contract they still failed because they were forward looking and there were no associated facts that allowed the  i think you still have to have other than just a statement that turns out not to be true i think you still have to have supporting facts around inference the speaker needs of the statements were not true all we have here is just the the statement that these were false when complaint and i would note that one of the decisions that our fish relies upon to support their inference that just for their conclusion that you can just say the speaker knew they were false and that's enough is the p n why tech case that case actually involved a different type of fraud claim it's the equitable fraud claim that doesn't have an element of intent in it and as a flight aside there is a suggestion in the reply brief before your court that ninety six of the complaint addresses contractual restrictions that were can place in the contract with respect to the actual fraud i would say that it's my understanding that if a pleading supports any cause of action even if it's not  out it should still be allowed to go forward particularly in a situation where we were not given a chance to replete i would also point out with respect to what types of trademark violations are alleged that there are several different types of trademark thing where the first sale doesn't our claims one is intentional interference we say the case called quicksilver and are breached another is that sellers are not immune from liability when they sell genuine goods purchased by deceptive means or certainly allegations that there were deceptive i would mention that respects the advocates that that case there is later law that we cited like milan that supersedes that case in most states that case but the holding in conway