good morning your honour's and may it please the court kathleen sullivan for motorola we respectfully request that you reverse the judgment below because no reasonable jury could find a breach of the implied covenant of good faith based merely on two opening offer letters and the request for injunctions nor could as a matter of law the jury find damages where the damages here were all predicated on protected litigation conduct protected by your pennington counsel ordinarily if you feel that there is no evidence at all you bring a motion but no motion was brought here that is this is an issue that could have been brought before the district court by a motion oh it was your honor both on fifty and fifty b and it was denied  we did argue for the insufficiency of evidence and fifty in ok and fifty were at what were appealing actually we're asking you to reverse the denial of the jame all but your honors i want to be clear that we have a second request if you don't agree with me on reversal of the dial of the j model and our alternative request is that you grant a new trial because we believe that the rand order produced by the rand by the bench trial was improper and then was improperly introduced into the jury trial in a way that effectively precluded motorola from having a fair jury trial and breach and effectively directed a verdict for microsoft if i could begin your honour's with the breach point we think that no reasonable jury could find legally sufficient evidence here for a breach of a contract of good faith because the only thing at stake in the in the case was to opening offer letters from october of two thousand and ten and it's undisputed now as a matter of law that opening offer letters need not be rand in fact the district court so itself correct your honor the judge was clear and microsoft's syllogism here is well you had opening offer letters that were blatantly unreasonable then you sought injunctions and both of those were permitted in other words the opening offer letters activities together and create an impermissible activity reopen your position is that no matter how high the opening offer is you could not be bad faith not in itself your honor not in itself and that's going on not in itself your honor so the question is judge presiding correctly asked  the course of conduct amount to good faith and in a nutshell argument is even the course of conduct added together can't be a violation of good faith because as a matter of law in seeking injunctions is not a violation of the ranch commitment we know that now since we were here last  met no that's backwards it's not it's not a violation as a matter of law is different from as a matter of law it's not a violation correct your honor but we know now from the apple versus motorola decision of the federal circuit that any view that injunctions are categorically impermissible here is error and they were specifically instructed that it wasn't categorically that's correct your honor so there's nothing here there's no there's no case for good faith based on permissible offer letters plus permissible or injunction requests taken together in this record and that it was a promise simple injunction request is supposed to the fact that it wasn't in permissible as a matter of law your honor the reason why it wasn't in permissible here is that the course of conduct in context began with suing motorola and saying put your patents on the table which we did upon which they didn't make any counteroffer they simply sued so your honor our position is you can't take the record here given that as a matter of law the opening offer letters need not be random themselves injunctions are permissible and in the concourse of conduct here microsoft initiated said put your patents on the table and didn't so much as a response to the october letters with any counteroffer in that context we think it's an insufficient case of good faith but your honor let me proceed if i could and if you look at nothing else your honor and why this was reasonable remember the context is bilateral negotiations and if you look at nothing else look at pages e r three fifty three and fifty four where  gutierrez microsoft executive witness says i reject offers oh i reject opening offers ninety nine percent of the time so what was reasonable here about the context here was it was the opening of a bilateral negotiation from which we got no response whatsoever when microsoft rejects opening offers ninety nine percent of the time so your honor i'm not making a legal argument i'm making a factual argument we are let me turn to damages and damages we think there is a purely legal reason for reversal and that is that all of the damages in this case were based on protected litigation conduct eleven million is for having to move the german facilities in response to the german suits and three million dollars as attorneys fees so we think it runs squarely the damages ruling here runs squarely into nor pennington all of the damage had to do with the injunction none of them had to do directly with the offer right i'm sorry with the offer yeah i mean another thing the measure of damages ha you do with that's absolutely correct your honor and that's a very important point we think that we're not arguing that or pennington precludes breach of contract suits for an commitments and we're not arguing that more pennington precludes all damages whatsoever for breach of contract  commitments were arguing nor pennington precludes these damages for violation of the rand commitment or breach of the right that is because they all all the damages here are the result of microsoft responding in the by hiring attorneys or moving its facility to motorola's protected litigation conduct and we think you should make clear if there's any doubt that nor pennington applies to foreign suits the northern district has already so held so as the fifth circuit so your honor every single piece of the damages here flows directly from micro from motorola's lawsuits that's why there might be a different case you can imagine a case where i think i mean there is a range of circumstances in which true where the lawsuit shouldn't have been brought but we know from apple versus motorola of the federal circuit's decision we know from page thirteen thirty one that there's no rule against seeking injunctive relief based on a rand comment and so this can't be one of the cases where we're precluded but said they said there's no blanket rule against that and say there was no set of instances in which was improper but your honor there is a blanket rule against getting damages for protected litigation conduct the only way you get out of the protect of is if it isn't protected now it certainly wasn't sham litigation we won in germany and it certainly wasn't malicious prosecution or any other category of litigation that wasn't protected the federal circuit said it's protected we might lose on it we might be denied we might in fact they might even seek attorneys fees in a pat infringement action but they can't come after us and say we get contract damages for you bringing a protect its lawsuit that's our argument and you are if you don't buy your pennington at least for the attorney's fees we'd argue that washington law precludes the grant of damages for for the consequences of litigation because it's in effect an exception to the american rule the district court predicted that washington would adopt an exception for breach of  commitments but we don't think there's any base as to suppose washington would since all the other courts who have considered including this court interpret in oregon law have held that there is not an exception for breaches of a covenant not to sue and as i've repeated a couple of times now we don't think the rand commitment is a covenant not to sue you suggest we ask the washington supreme court with the law washington you could your honor you could certify we don't think you need to because we think that the majority rule is clear and that just goes injury correct your honor and we don't i don't even quite see why the american rule question arises as such i mean the question is is this an appropriate measure of damages but but you're not showing that no one's trying to contaminants for the  fees for the work in this case in effect they are your honor it's just doing it in two different lawsuits if they brought a few requests earlier which motorola has pending patent infringement actions against microsoft microsoft continues to infringe our patents and has never paid a for them so there are still pending infringement litigations had they said excuse me give us fees in our infringement litigations that would have been a request for attorney's fees there instead they came and they they saw fees in a separate case so your honor we think you can reverse the damages it we think you should reverse the judgment because there was no breach or the have been granted on no breach but at the minimum we think you should reverse the damages but i'd like to return if i may attorney if i may to the alternative argument which is at a minimum you should send this back for a new trial because what happened that you we none of us could have predicted when we were last here in this courtroom what happened in the meantime is that the district court bifurcated the case into and held a bench trial at which the district court determined a rand raid in range and numerous other findings about the value of motorola's standard essential patents and then there was separately a jury trial and we think that there are three problems here first the rand order itself was improper in that it departed from governing federal circuit law and patent damages and even from the circuits law on speculative damages second the case the bifurcation was improper third the introduction of the rand order findings into the jury trial was improper and let me try to lay those out if i could one of the time and you also while you're doing that cover whether or not your opposition is correct that you  had that motorola actually requested the rest separate read trial i mean if there was no objection in the district court i'm happy to start with that your honor because i think that once we dispel that the rest whole argument boils down to s c r seventy four seventy five and a single stray comment of motorola's counsel in a marksman hearing in the patent docket not even this case in which the soul the sum total of the supposed concession is for motives c r seventy four up to seventy five is era greenman says that the court would decide all the material terms of the round license and we currently have a disagreement with respect to whether the breach of contract action would be tried by the quarter by a jury now what happens later is when we were last here the you contemplated court contemplated that perhaps the court would create a license the court later decided not to create a license the court recognise that a license has many terms and the court focused only on the price term of the license and had a rand rate trial that's what that's and there were there was never any pleading requesting a license there was never any amendment of the pleading requesting a license and there was never a grant of any license so your honor the thing addressed in that comment was something that never eventuate in the trial a license and if i could refer you just to the all the facts that relate to you if you look at the minute entry of the status conference the was held subsequent to the mark  hearing you talk about the scheduling order and then at night it concludes with in the event the parties agree to a bench trial for the breach of contract issue the contract the court may adjust the length of the trial accordingly so it seems pretty clear at that status conference the both parties anticipated a rand hearing and bench trial well your honor motive motorola did not consent to the bifurcated procedure and did never consented to the jury being instructed on the rand rate and i mean  substantive problem at the i e they were continuing to argue whether the judge could could do this a tall not whether he could do it in a bifurcated trial my issue is whether what as i say what it cover to cover more than simply it seems to me your strongest point is that it didn't cover the findings it didn't cover the findings i didn't cover the findings that seems to be to be the the important question because it seems pretty explicit as to covering the random out your honor there was never a consent to the findings and there was never a consent to the introduction of the findings into the jury breech trial there was never a consent to the bench trial findings being part of the instructions to the jury in the breach trial and there was a consistent request for a jury trial on breach so you go to the place with whether or not it's going to be a harm to your client and i did notice that the it was not binding on us but the federal circuit apparently now thinks the district judge did a very fine job in his round approach and so said in erickson your honor with respect to the federal circuit did not say anything substantive it's simply describe the case in the erickson footnote and importantly what if eriksson means anything for this case it means that the federal circuit has clarified that it thinks analysis of the value of random cumbered as he is a matter of federal circuit patent law which is why we requested  chief judge thomas i'm concerned that i'd like to reserve time for rebuttal really we're going to give you ten minutes rebuttal and will increase the time ok thank you so may i continue here just to finish thank you thank you your honor i appreciate it very much i  do think the threshold question is consent and i'd like to point the court to just a few data points that show why we did not consent to the scope microsoft claims we did not consent to a bench trial finding on rate being introduced into a jury trial and we certainly never consented to any determination by the bench of facts beyond the rate and all time there are many facts beyond the rate that get introduced as determinative findings into the through that's correct or and you didn't raise the issue that are contained in your brief about this was only an advisory opinion well we did raise that your honor we brought a set we brought so just to go through the chronology in the summer of two hundred  twelve member in the summer of two thousand and twelve first there's that stray remark in the market and hearing we think the court should set the terms of the license then there is a telephone conference in july where we object to the court setting the terms of  opinion partial language incident understand why perhaps you could explain it's obviously if i mean or were put another way isn't it the same as the jury trial as the introduction to the jury trial because obviously if it was introduced in a jury trial  advisory so what's the advisory argument you're under the advisory argument is if if the judge if there's no controversy between the parties over the proper rand rate or so in the abstract no no the microsoft didn't seek a license for specific performance this is a case about breach of contract their suit suing us for damages because we supposedly cost the money by bringing our protected litigations so your honor there's no this isn't a patent case in which the parties and this goes back to the error in the bifurcation your honor that the judge did did determine the trial court did determine that it was necessary his word to determine the true round rate before the fact finder here the  could find whether there'd been a breach there's no basis in washington or any other state's law for that assumption that is there is never been a case that we're aware of or that microsoft decided where there had to be a determination of a true price term before you could decide whether a bilateral negotiation was initiated or even conducted in good faith and so that fundamental premise violates state law the notion that it was necessary to determine the price term it might have been relevant and your honor just to cut to my bottom there be a trial and breach and then there would be a subsequent determination by the district judge of the proprium grade well your honor if that was at the point when we were laboring under the impression that we were going to there was going to be a license that disappears from the case but you're right your honor we were there was active discussion about what the judge would set but the order in which things happened here creates a problem and here's the problem once the district court sets the so called true rand rate and that becomes a set of an arguable conclusions that are introduced into the jury trial it biased the jury trial and effectively directed a verdict for microsoft it created a situation in which motorola couldn't even with all the other evidence of subjective good faith reasonable industry practice reference to microsoft's own practice of rejecting opening offers an engaging in bilateral negotiations evidence that microsoft sends out letters with a twenty day sunset period if the jury is told the rate is is a miniscule fraction of the number in the opening offer letter and there's no ability to contest that or cross examine it  the introduction of the rand findings into the jury trial so let me actually let me settling the seventh amendment argument is that the rand findings this effectively directed the result of the jury trial in a way that we didn't consent to because the scope of our consent was far more limited than the district court interpreted it to be but forget about the seventh amendment and forget about article three we should win under federal rules of the rule of evidence for zero three because the introduction of the rand order came in as if it was an expert that couldn't be doubted couldn't be crossed and couldn't be subject to any objections and if you look at i've asked you to look at a page in the in the record where there's one of microsoft's concessions i think a very illustrative page for you to look at in the record  three eighty four where you'll see how the rand findings come into the jury trial they come in as undisputed findings of fact we had argument about it the judge issued an order but when they come in and you look at how they come in they command has findings that we can't contest as facts that we cannot contest as opinions we can't contest our witnesses are not allowed to bring in any evidence of historical licenses our witnesses are not allowed to explain any of their actions in writing the finding for the bench from but i guess what you're asking for today is you want all of the evidence that came in at the bench trial to be presented to the jury yes your honor and for the jury to determine iran's right your honor there's no need for the jury to determine around race because it's not a license case it's a breach of contract case all the jury needs to determine is should motorola be smacked with fifteen million dollars worth of damages because it had the audacity to stand on its patent rights and bring us a set of suits it was entitle to bring in jurisdictions it was entitle to bring them and because it sent an offer letter to which motor didn't respond this isn't a case in which microsoft came to the court and sought specific performance in the form of a license it's still not in the pleadings there's still hasn't been an amendment at and so your honor that that was just not what the case was about  ever captures that point but the key point your honor is that the rand findings the way they were introduced into the trial created an unfair trial that warrants in new trial in which let's just imagine the counterfactual in a counter offers they don't have to just take as gospel that can't be crossed that can't be doubted that can't be objected to findings that say what the rate was and there's more you're out of there if you look at page three eighty  to say you did right or right to do it if you had agreed to do otherwise but but the consequences are large we didn't agree to the findings ever being introduced before the jury we didn't agree to bifurcation but your honor the jury is trying breech they don't have to find what the true round rate is there's a false premise that underlies the entire case when you pull it out the entire thread unravels there was no requirement under washington this is a state contract there's no requirement that you find the true price in order to decide whether an opening offer in a bilateral negotiation is reasonable but if the other side chose to try it that way thinking that it was a print in fact it might be hard to say it was the jury trial in a way that practically directs a verdict to reach here under their independent reasons why the rand order with ought ought to be vacated here it's part of the fifty four b and if i could just the morning honors may please the court i think i'm going to start with the last issue and then take them in the opposite order because it does seem to me that this case turns in large measure on precisely what motorola consented to and what flows from that specific consent i think the court's actually quite familiar with this language in the context in which it arises but microsoft's counsel says specifically to the court the parties agree there is no jury involved there's no jury requirement with respect to the court's determination of what is real and the response of motorola's counsel is that's right your honor and then he goes on to with that with the quote off hand comment i where i'm having trouble is that gets you through the submission of the underlying findings of fact i think the logic of that becomes if if you accept that you're going to put before the jury what the rate range is and what the actual rand rate is and you're going to say that that is effectively collateral estoppel because i think that's all we're talking about they really litigated this for six days they analyzed every aspect of it the judge made extraordinarily extensive and explicit findings with respect to how he got to exactly those rates and those numbers to allow the jury to the jury to come back into it and for motorola to challenge every one of the subsidiary findings that gets you to that rand rating is effectively to say the recent rate has no effect in the subsequent arguments so far has been based upon whether motorola consented but even if they get past that issue if i were the district judge i wouldn't be focusing upon objections made so i know what was wrong with it what with the objections that were made by motorola to this process well after the fact not after the fact that the tell at the time of the date they consented to it they said specifically ok and then later on not after that if you mean after that fact fine during the actual trial when it happened then the judge was single thing they they try they litigated this issue to the nine the context because the sort of after the fact point i was going to make is that when they finally get around to this sort of complaining about the bifurcation process motorola's counsel specifically says and this is in the supplemental appendix sixty five there is no question it's late that's this entire percent process of trying to go back on that a month later yes the month later i mean it wasn't what he was really talking about was the substantive argument that there was that the judge done if they really wanted to have litigated it properly what they would have said is we acknowledge that we waived our seventh amendment right because clearly the seventh amendment is embedded in that entire discussion of what they consented to because the other half of it is they say specifically we're going to sa that for the jury pursuit or seventh amendment right so this is all embodied in that so what you should have done if you feel if you we're going to do anything is come back a month later and say we've changed our mind we don't we decided we want to sort our some of the memmott right they didn't do it then and they haven't even done it today but up to this day they say we never consented to this if you set aside the consent at some point you're going to introduce a brand right now i understand you have witnesses that introduce the rand discussions and findings by the at that point that's the first time the jury's going to hear it was really objection made at that time by the my motorola i do think there was an objection at the at the point in time well there was a discussion about how to properly put it and whether you would do it through you know there was an objection to it as the question was whether you would do it to a jury instruction before the trial or do it at the end of the trial by jury instruction or whether you would try to do is that is right just leave it up until the point that you actually get it before the jury they may have consented earlier but the issues coming up right then and the judge has to know there is a problem so the trial judge and they did not renew their objection at the point in time when the question was are we going to put what you said r objection what do you mean by well they again after having consented sort of raised an issue as to whether before or after the jury trial that was before the jury trial so they the judge was on objection i did that when i was a district court judge so what i want to know is what at the time the evidence is going to come in what objection was made by motorola there was no objection at that point in time i thought are you sure about that consent yes there was consent and then the question is once you consent to allow the rand rate and the rand range to go into the case and be put before the jury because there's no other way to do it you've tried all these issues then it seems to me this is nothing different from collateral and the fact that it gets inserted into an may have dispositive effect although i know the judge specifically instructed them you know what i determine to be the rand rate doesn't answer the question of whether or not there's been a breach of this particular contract he specifically took that off the table and said you know it's just one of the various factors that you have to consider the other argument the missile of an makes about the nature of what was before the court is remember we asked for an accounting and we asked for a declaration of the rand great so they've known from day one that it was microsoft's desire to get out of this litigation iran's rate now that may not be that state law compels a district court to actually determine the rand rate as part of that process but we are certainly entitled to ask for it and it's certainly within the discretion of the trial court how to proceed and it seems to me that once you get past the point of consent then all you're really talking about was bifurcation and if your position that there wasn't and it's some points here earlier in the transcript wallace talked about earlier which is he's a very complicated issues it was going to be very difficult for the jury to sort of doubt it made much more sense to try those issues separately in front of the judge and then take that information and put it in  jury in the let the jury decide its issues in good faith and this is soon for sake of argument that time it was actually proposed during the trial during the jury trial that motorola did make their objection let's assume the motorola has that issue profit before us has anybody talked in any of the public courts about the proper way to do this i mean it's a very complicated issue of how you get this before a jury and how you handle it now you have erickson which gives you some help i suspect i mean they have the responsibility of that court is to make sort of everything's going to be the same everywhere i have i thought it was very bad idea to have a special court and did they like the idea but i understand the purpose of it is is there anything other than erickson that we could look at that some appellate court has said this is a good way this is an acceptable way of trying these kinds of cases involving not that i know of so we're going to have to make that as a first decision right although if i were in your situation what i would do is look at exactly how the district judge handled this because it was very careful not to allow the jury to be too much influenced by his particular findings and indeed i think if there are any analog to this and as i said before they come out of collateral estoppel they really findings from one proceeding that you incorporate in the he was careful with the witnesses and he did do that that's true but if they had an objection then we have to decide and in unless your consent argument flies we're going to have to decide whether he was right on the shark but i don't disagree with it but i what i'm suggesting though is that i think he was absolutely right because he has a situation where he's undeniably got to put the right in front of the jury and he's trying to do it in a way that doesn't that is an prejudicial as possible in the face of a night you know i can shift on the fly here to in some respects  you know what was the evidence of bad faith in this particular case i miss all of it does a very nice job of trying to segregate out and say well this one isn't this isn't it by itself isn't bad this one by itself isn't bad but the reality is we're talking about a situation where we know that at the time the this outrageous demand is made they're already preparing to go to court to seek injunctive relief they make a demand that is that is so far beyond commercially reasonable that no no nothing similar this to a different dimension and terms of of the approach and candidly the entire purpose of this exercise is to avoid hold up so i mean to me at least motorola's position here is much like a loan shark finding somebody who's d money twenty dollars and say i've got a gun i want to hundred dollars and the expectation is that the person who's got a gun on him is going to say well let's talk i mean this is not what happens this was a hold up effort who happened to be representing microsoft i won't dispute that your honor but the entirety of this entire concept here is hold up where does that come from a comes from not from the metaphor i just used and if you put it in context it's absolutely right because what the effective and of an injunction that prevents the sale of windows and x box on a worldwide basis potentially mean that is all but a death penalty to microsoft's business the issue the issue is whether or not that's substantial facts for the jury to make the finding absolutely and so the issue isn't whether or not how the press how the discussion went is there are sufficient facts for a jury to be anything anybody could imagine all are are more than enough evidence to demonstrate that there was bad faith in this case and you know and it's worth at least the second through remember that the jury instruction here said that it had to violate community standards of decency but the question i mean the notion that nor pennington is any kind of an impediment seems to me a real stretch because what's the basis of the agreement here it is an agreement to forego seeking injunctive relief  long as a party is willing to accept well on a rant basis that's the let's assume well that we've never actually decided the district judge did we've never decided to district judge didn't take the position that didn't quite take that position i mean he took the position that there wasn't a rule against injunction so in general but there could be under particular circumstances so i understand the argument to be that when you don't have a or let me articulate version when you don't have a clear rule saying you can't bring in a chunk of action but you can bring in a chunk of action in certain circumstances but not others and even if this is the others and you can't bring it it still should protected activity that you can't get damages for right but if the whole purpose of the contract was to prevent litigation and in particular to prevent the use of abusive injunctive relief and to ensure that everybody accepts rand and proceeds forth under those circumstances then it seems to me that if your bad faith actions force us to pay expenses and litigation then those then those expenses candidly and  worse have to relocate from one location to another those those costs flow directly but this isn't a more fundamental issue just to be clear that you unlike what i was suggesting before you are regarding this is equivalent to whether the case whether they were seeking damages in this case i e it doesn't matter that it was a known and of course not we're not seeking our attorney's fees for this particular case all we're there to i know you're not but you're analyzing it as if you were as i understand it no because because we brought this case this is our litigation we brought this is a contract action they brought that litigation in germany and they brought it in bad faith and that's that's the findings of the district of the of the jurors it's a specific finding of pennington because the notion that there's a right to petition the german government as a first amendment protected activity strikes me as beyond passing strange and indeed if there were a protected right to petition the german government i don't know how that wouldn't be how this court's previous affirmative the injunction would have been a prior restraint on that first amendment protected right i don't hear a peep from motorola with respect to that issue when the when the question came up the last time we were before this court so this is a me pretty clear that that this is not a first amendment problem this is a this is a matter unifying attorney seems part of this to the washington supreme court i mean i don't have any objection to that it seems to me it is a pretty small piece of this i believe frankly judge roberts in a much better position to evaluate that but  i do think judge agrees and you're absolutely right about the better way to look at this this is this is not of a fee shifting american rule kind of a problem this is a breach that flows directly from bad faith violation of the contract and that to me is the better way to think about it rather than worrying about whether there's an equitable exception to the american rule that applies in this context i know that's the way judge robert analyzed it but i think you can affirm it on the alternative ground without having to worry about that no we well there is there are some specifics with respect to the damages they are tied directly to the to the bad faith and junk effort to get an interest very specific finding of the jury on bad faith with respect yes there was and you would agree that all the damages flow from the injunctive activities are not from the initial round off right i mean that you could make an argument that they actually flow from the failure to grant a license in the first instance because candidly if we'd had a license that would have solved the i think the answer would be yes because one the judge said that the determination of his determinations with respect to rand and presumably all this city or elements of it don't tell the jury what to decide and and candidly what we know is that the in minutes on the clock thank you your honor i'd like to pick up with judge wallace that was his question about what's the right way to do this and the simple answer your honor is rand issues should be addressed in pat infringement actions microsoft could have brought its ran defenses in error path infringement actions and if there was a breach of their standard essential patents but they only get we only get rammed fees right around license fees a jury could determine what fees we get that's how things were done in dealing erickson and dealing erickson the federal circuit is telling us well there may have to be some interesting changes to the jury instructions but you do it through jury instructions  you a problem when ericsson itself affirmed applauded what the district judge did in this particular page well your honor i respectfully request that you go back and look at exactly how the federal circuit treated this case and it did not  with with respect it did not applaud work or criticize it simply neutrally reported the fact in the footnote that this case had had raised ranjit also mentioned realtek and of audio and the it didn't come out one way or the other in fact the federal circuit explicitly said it made no comment on the merits of this case so your honor it didn't applaud it and to the process no it was your honor didn't applaud it it simply said those cases may come up and they didn't express any comments in the long footnote but here's what i would suggest about that i think that the federal circuit is neither approving or disapproving clearly that was a patent infringement case and my chief point to you is that nasser to your question how do we deal with rand the answer is we can deal with it through patent infringement actions in which we figure out how to instruct on patent damages and because the court turns this into a patent damages case through the rand order there's a serious question whether jurisdiction lies with that little circle but this case was a different case it was a breach of a contract and a fair dealing in the damages that they saw and not were not damages they could have gotten in the case that you're describing that's right your honor except they could have sought their attorneys fees under section two eighty five but your honor let's go back to the contract i don't understand when you're saying it's all spinach it's all the same thing it's not all the same it's different your honor it's a different thing but but what i'm suggesting is that the patent infringement action gives companies in the position of microsoft ample opportunity to bring their ran defenses actually what microsoft should have done is it should have said back to motorola if it didn't like the opening letter we won't pay two point two five percent we will pay the h two six for pool or we'll pay some other rate but they didn't write back and that's why this is a bogus breach of contract case it's a case in which there wasn't even a counteroffer but your honor but to this motorola has not accepted that right or any right a much higher right to the judge found which was considerably higher as i understand it in the poor well your honor during the pendency of this appeal we have not accepted that rate of course we're trying to get what we're trying to do is get back to a situation where the errors in the trial are eliminated and then we can go back to the table where we should have been in the first place but your honor the key question is on the scope of the consent because i think it's become clear that if the if we didn't wave our seventh amendment rights this all should have been done before  a jury and i want to highlight what was wrong with introducing the rand findings into the jury trial and we object to the rand rate and range findings on all the grounds that are covered in our brief there's speculative it relies on poor rates that are not comparable that just record him selfe admits in the long equation at sixteen twenty one to twenty three that neither party suggested that he doesn't have evidence for how motorola would have valued its patents that it's extrapolating from a blog post on page sixteen thirteen a blond post that microsoft thinks it gets two times the value from the pool than it puts into the pool and it then says well if microsoft thought that then google would have thought the same and we can attribute google's actions to motorola none of that has any bearing on what motorola thought in two thousand and ten two years before it was acquired by google so with respect had this expert opinion had the findings in footnote twenty three come in as expert opinion there would have been serious grounds for  argument that they did weren't based they were too speculative they weren't based on evidence in record and that they should have been excluded but the core problem here is we never had the chance to do that because they come in as undisputable findings of fact what if the answer judge w s question about whether there was a objection or that covered the trial at the jury trial yes profoundly yes your honor this my friend is quite wrong that we didn't object at trial we strenuously objected we made a motion and lemon rand rates and ranges we wanted to exclude the order and we wanted to exclude the use of the oars the point of the brand trial than the bench trial well your honor we think it should have been held as a separate trial and say what i think on this record you certainly i don't i don't see a single objection to that procedure that's clearly made now but we can we can look at that but i mean you're i guess i don't understand once having if you  hypothetically that you agreed to this procedure i know you don't then what was the point of the renter oh well your honor we didn't agree to this procedure and let me try to state it more succinctly than i did before we agreed that the court could set the terms of a license the court later abandons the quest to set the terms of the license because it's the part of their part but to define their own right but he changed the basis on which he was finding the rand rate he said i'm not going to set a license i'm going to change i now think it's necessary for the fact finder to know the true rand rate in order for us to decide breach that is a change of litigation parameters we're no longer setting a license which is all we could have conceivably agreed to in we never agreed to him setting a rate in a vacuum and we never agreed to him then saying that you can take that rate i said in a vacuum and the jury has to be told it is the rate and they can compare it to the license offered the rate in the vacuum that set us up for a breach finding and we never consented to that your honor and if i could just give you a few other things to look at to show that we did have a check to this procedure if i could just focus you on e r nine nine three and in our nine nine six that's our july eighteenth tw motion for partial summary judgment remember in the summer of twenty five we're doing two things we file a motion for partial summary judgment to stop this procedure it's denied and we come to you for relief from the anti suit injunction we never agreed to a procedure where we would just all get together and set the terms of the license we were trying and in fact in their litigation before you before we strenuously argued to you that this was not the correct procedure so your honor we casually agreed to something that never happened setting the terms of the license that can't be a seventh amendment waiver of our right to exclude the rand order from the jury trial but but you did ask the court to determine the random post trial if the jury found breeze through only if it was sending a licen brief yeah yeah exactly or are we at that point we were still willing to have the judge set the rate if there was going to be a license but what happened was backwards your honor it's important the sequence is important to the extent we ever agreed if there is a breach and the remedy is specific performance then the judge can set the term of the contract that must be specifically performed if we agree to that it does not mean that we agreed that the judge can determine a rate in a vacuum it becomes like an seems to me to confirm the my reading of the or a reading of the hearing which was i guess the same time when she is that that your objection was to him it was a  infer the right that's what the argument is but it wasn't an argument that if he's going to do it he should and he should that that should be done by the jury and if you ever argue that that the rate should be set by the jury yes no we did not but we did argue that the rate should not be set in a vacuum and we did argue that the rate set in a vacuum should not be instructed to the jury as an inarguable finding the jury trial here your honor if you look at pages like e r three eighty four and you see that witnesses that's microsoft's expert witness being allowed to read into the transcript the supposed undisputed fact that motorola contribute only a sliver to the technology in the standard and its patents were only of minor importance first of all those findings are far beyond the scope of any consent but second of all they inevitably bias the jury into thinking that the delta between the opening offer and the true round rate that was now an undisputed fact was was evidence of bad faith and your honor we never consented to this sequence we never consented to this procedure we never consented to find the rand rate the true round rate first and then tell the jury that's the absolute truth and rate we don't think there's anything is any such thing as a true ran straight in the real world these are certain crosswise and so easy to let's assume i think this is what ju your honor we believe yes we do need to have consented to this to the introduction into the jury trial and we did not and the and that because the scope of our consent the seventh amendment why why why if you consented to the first piece of it and i understand you say you didn't believe it we didn't  then do you need any further consent yes there needed to be further consent to the introduction of these findings into the jury trial we never consented that we were going in a little bit of circles we never consent sequence we never consented to the bifurcation we never consented to the setting of a round rate in a vacuum the most we ever consented to was the judge's determination of a rate as part of a remedy for specific performance after the jury found breach and when it when the whole case flipped the other way around we were we were put to a jury trial that was in a sense it was it was a set up the rand rate comes in there's a big delta between the rand rate that the judge has determined we are not allowed to dispute the rand rates our own witnesses can't even say what was in their mind at the time because the judge at page two fifty seven it instructs paino up to in a sense pay no attention to what he thought about the the rim license or any other historical license i have told you what the rand rate is and that cautionary instruction tells you it at two fifty two fifty seven or at three eighty four when you look at what happened at the jury trial in a sense the district court's findings of fact become a kind of expert opinion that can't be excluded it can't be crossed it can't be in any way put in context of other evidence and that bias the breach finding your honor so if i do nothing else today i ask you to separate two things a license case that never happened two years ago we thought it might happen we thought maybe there'd be a  license or specific performance what happened is the world was turned upside down the rand trial was held first and the rate became something that determine the breach trial against us and we're stuck with fifteen million dollars in breach damages we never should have been subject so your honor whatever should have happened counterfactual world where the license was at issue it didn't happen here the fifteen million dollars should be reversed or vacated or it should be sent back for a new trial unless you want to send us to the federal circuit to figure this all out