lease as a result of those substantial allegations the relief that they seek is based on those allegations and therefore arises under the agreement and release of the performance of the contract the between different arbitration clauses depending in part on whether they just say arising under or arising out of one hand versus arising under or relating to who on the other hand i'm sure there are other formulation is too but this is on the narrow end of that spectrum of of language thank you your honor yes it does have the arising under language and as i noted your honor these allegations are arise under the agreement in the conduct of the parties under the agreement way the specific language does not exist your honor go any other way however as the plaintiffs know in the complaint that the plaintiffs know that the parties entered into this agreement in two thousand  and they entered into this agreement and the whereas clauses say why the where i suppose on first page of the agreement note that the plaintiffs had a roof model a model that people can use to look at different types of roofs if you're thinking of contemplating a new roof it also says that my client is is is involved in roofing manufacturing and distribution and has roofing contractors so the object of the exercise and the purpose of the agreement is promotional agreement was for the plaintiffs roof models to get in the hands of my client roofing contractors so that people could then look at these particular items and according to that to the complaint the plaintiff complaint after entering into the agreement after entering entering into the agreement the plaintiffs then sold the roof models to the roofing contractors went to the j f convention and brought promotional materials and had confidential discussions confidential discussions with ga after wyrick gave information concerning the product making of the product and the promotion of the product the sales the marketing the promotion of the product according to the complaint confidential information was conveyed by the plaintiffs to j f and they agreed to maintain the confidence but that that understanding is separate from the agreement because the agreement doesn't either specify the exchange of confidential information or obligate roof unbox to maintain any potential information or threaten require t f to maintain that information say the parties did under the agreement section six d of the agreement is the commitment section it's on and it's page twenty eight and it says both proven box and are committed to the mutual benefits to be derived under the program and as a result of that commitment the plaintiffs say after entering into the agreement they did those things including providing conference confidential information that's what they say they said they did that and then and the reason that the reason they say they did that was because after they say they conveyed this information they say in the next paragraph twenty two of the complaint they say j f terminated and they say following terminations ga f started coming up with its own product and they say in the in the subsequent paragraphs in the complaint j f use it used advertising which was substantially the same as the promotional materials that the plaintiffs say they gave in confidence t hard time seeing how it could even reasonably be asserted that those claims are rise under the agreement because there is no obligation of the agreement that is material to the proof or disproof of those  opinion in seeking lost profits here in seeking want to prop up what the plaintiffs are really doing is saying i'm you breach the contract and we want to be where we were had you not on that and there's a reason for that because the only sales here are the sales to the g a o ways of the lost profits nothing more than a really pretty good source of evidence about what their profits would  profits you could make so later when you commit the violations that they say you've committed that's a pretty good measurement to them of what they could have made if you thank you your honor the reason it's different is in this instance this is a very unique against instance that's why i was talking about the agreement without this agreement there were no sales this agreement was to provide these models to the g s contractors the reason evans made any money at all was he was making the sales to the ga you have contractors but as we've noted he failed to deliver on time and the product than have the quality terminated the agreement and now they're suing you for actions taken and after that they're not saying you're making money by having wrongfully terminate the agreement they're not using those words your honor they're seeking the same result and as we've noted in our papers in our briefs the law is that the words you use in your allegations should be controlling your no matter what label because they will have if in fact permitted to proceed this way they will be in the same ship the same exact situation if as if they said breach of contract because as i said the last prophet which we talked about the district court and its work out for as well as for count three that are both trade route one federal the other common law those profits could only have been made if he was still operating under the contract because the only sales that you have made were suits on contractors just to follow up and judge serranos question it seems to  promotion agreement is all about the sale of roof and boxes products and the promotion there of a complaint is all about the sale of g a s products i don't see any relation between the two at all the only reason this country grabs the promotion agreement relates to roof and boxes sales that was terminated there's no allegation of any breach relating to determination that's over and done with now you got activities that are complained about where with regard to ga apps activities two where where or what am i missing everything in the complaint your honor has been written in order to make this case worth substantial sums everything that's been written in this complain that there was no need if one were only the answer again judge progress question and your question judge when if this was only about patton infringement they just have to hold up the design patent drawing show the g of product and say nothing to do with the sale of any products by roof and box under the promotion agreement or any failure there are or anything else to do with a promotion agreement they put at the history is their course with the relationship between the companies and i and certainly your arguments might have more gravitas if the arbitration clause was a broader variety which included not only arising isn't that a problem nor respectfully i think it is not the reason being because what they're seeking here we've mentioned they're seeking punitive damages in count four that can only be because of the story with respect to the agreement that they put in there they say in count five where they have the new jersey action the new jersey they say the conduct was unconscionable they say there was misrepresentation these things all supposedly took place as the parties acted under the promotional agreement they're seeking they're seeking here more than a million dollars and there have how do we know whether the alleged misrepresentations took place your honor it's i by the way they've written the paragraphs in the complaint they write a paragraph saying that they gave this confidential information and then they say after we gave the confidential information do you have terminated and then the very next paragraph j f started computing and the very next of the complaint they say do you have was using promotional an emotional materials that had the same look and feel if you went back two paragraphs above that they say that what you have to do the promotion so everything that they say in order to get the big money that they're seeing here is based on the allegations in the complaint about the agreement accurately characterize where the parties are separated in this case this case is about the illegal we contend sale of roofing brock's of products that is a promotion group and box of products with contractors that have relationships with j f in this case and whether one applies the  the full inquiry test or whether one applies the wholly groundless test and i think for all intents and purposes the district court did both i think you'll see that the case law makes it clear that it's still appropriate for this court to look at an exam and construe the underlying agreement and that was made clear in the inner digital case which i might talk about in a moment but in that case the court said even when one does the only grounds test it's still appropriate to look at an exam and then construe the underlying agreement so let's do that the underlying agreement in this case was an agreement or this lawsuit has nothing to do with that and all of the allegations that are referenced in the complaint or wholly unnecessary and i actually agree with would counsel they said their wholly unnecessary to an allegation of  infringement the contract has nothing to do with the claims of patent fringed and so what they are essentially alleging but i think they've really turned their focus away this morning at least away from the patent infringement  other allegations whether trait dress or or things like that some of which they say the complaint makes clear enough have some of the roots in the pre term relation relations were very good question and your question was did you make any arguments to the district court as to whether or not those trade routes going in should be treated somehow separately or distinct from the patent claims that are alleged in the complaint in the answer is option anymore there's never been any motion to do that but even if it were my answer to your question would be that once again the underlying contract i was for ga have to promote the sale of roof and brock products it did not allow them to sell a product which infringed roof and box patents and that's the that's the distinction so to  somehow it would be appropriate maybe to sever which that motion has not been they are to treat the trade rest claims differently is wrong for the simple reason that the underlying contract which as you've correctly pointed out the ar that the arbitration only relates to claims arising out of the contract not relating to and under under under the contract exactly and in this case  what we've got is a situation where j f is essentially decided that it wants to market and sell a product which we allege in french the claims of this patent it's also worth while pointing out and and so if if you had an arbitration agreement that would say that said relating to perhaps you would have an argument that those claims should be treated differently perhaps you would have an argument that those claims should be severed and submitted to arbitration separate and apart from the underlying patent from the primary that claim but that argument has been made there's been mo motion to do that and i think the time for doing that is now long since expired but i would also say that even if that motion were made i would say to you that it these claims are wholly separate and distinct from this contract they did not all rise and this is very important they did not a in the district court made this point in his decision until the contract was terminated they arose only when and the the the defendant in this case made a decision to start selling products which we contend infringe the claims of this baton and so for that reason and because of the language that's in the arbitration agreement itself in the contract i would i would say to you that while i agree that they are closer to what is going on in the contract they still do not arise under the contract because a contract is judged when it's pointed out related to the sale of our product this complaint relates to the sale i've already argued and that is the contract itself again pertains to the promotion of our products you know that that would say it may have an impact on the other say that there was a provision that that took the confidentiality the other way and that applies to to both parties relating to the agreement then with this with this complaint  allegations arise under the promotional agreement at that point it's an interesting question i hadn't thought about it until you posed it but again i obviously have to argue no and the reason why is because again the contract pertains to the promotion of our products not to the sale of their and then so were two ships passing in the night here these claims are wholly unrelated to what this contract was all about which was an agreement on the part of the defendant to promote a three dimensional model for use with their with their contractors it just to see the cleared the way understand right that confidentiality for vision agreement that you provide your client provided confidential information and there was an expectation that that would be maintained in in confidence we're is that truck yes i'd be honest with you it's my recollection that my client told me that they promised that they would do that i do not believe there is a finally i would like to remind you that i believe that this course decision and the inner digital case is very constructive in because there it was argued that the arbitration clause applied because patents were subject to a licensing agreement and the district court applied the holy ground to standard and compelled arbitration and the and this court looked at that and said whether you're doing a full blown analysis of whether you're applying the holy ground was standard it's still appropriate to look at the underlying agreement and look at what the underlying agreement says and i go right back again to a judgment on your point seem to be maybe arising under it greenish i haven't i haven't thought about that as much as i should for you vance the question as i sit here thinking about it now the answer is probably is not relevant n  look i got to believe that an article three judge if if if he wanted to hear she wanted to could in their discretion make a judgment to sever claims that they thought to be subjected to an arbitra provision i have to believe that the judge has the ability to do that have i seen a case in which that's done i have not and i have looked but i have not seen one and more importantly for the reasons that i  articulated i don't think it would be appropriate because this lawsuit doesn't arise under that contract i'm begging that the underlying argument i understand but and to answer your question as to whether i've seen cases that would allow an article three urine encouraging article three judge to treat those claims differently i have to believe they have the power to do that point that was made was on the the activity that's now complained of a rose after the term a nation but our point our response to that is then why tell the jury vol of this there's a reason for it there's a reason for saying this is what happened under the agreement j f has behaved unconscionably jeff has behaved with malice you must give us she wanted to have damages there's a reason for them bringing that in because without those allegations it's a garden variety information would be kept confidential by how does that relate if i had all to the specific counts set forth in the complaint basis what they say there are we have twenty four the antecedent and then paragraph twenty one we had a promotional agreement relationship and pursuant to that relationship there was a confidentiality requirement and they're saying j have breached that we disagree they say gee you have breached it and that's the basis they're saying that cop that confidential information what you what to do and how to do and how to do it and then you did it well where we're in those counts three page nine of the complaint paragraph sixty six defendant has violated plaintiff's common law trade dress rights and otherwise engaged in unfair competition with plaintiffs under the laws of the commonwealth of virginia and other applicable state law and then and then in the next count on appendix thirty four they cite the new jersey statute which talks about unconscionable commercial practice deception freud false pretense false promise misrepresentation intent that with intent others would rely on it with in connection with the sale of any merchandise so clearly this narrative that they have in the complaint is there for a purpose the narrative is there so that they can get from the garden variety with these allegations in this complaint we her coffee they want to tell the jury they did all that that's why this case is exceptional and that's why the patent damages should be what they are they should be trouble that's why you should grant attorneys fees because it's an exceptional case because of the stuff they did under the agreement it's all tied together ok we thank you for your arguments lead and that's the conclusion of today's arguments this courthouse thank you very much