i think you're on good morning me at least court parties agreement states that any provision is that if any provision is deemed an enforceable then that agreement automatically terminates in sixty days here  for and it should not be now needed to escape the consequences of its actions agreement which provides for automatic termination flows from clear place on request which was followed that section  it is abuse of discretion yes in general on review of the plenary injunction however within that analysis review of conflict interpretation and review of the legal effect of court orders are both legal questions which this court on short notice a day before the hearing and clerk late offered as irreparable harm a one line sentence from the president of the company saying that if it didn't get the injunction that its business would collapse there was no support given for that statement no other evidence just merely the statement the conclusory very self serving statement that the business will collapse without the injunction the southern district of new york looked at case the president of the plaintiff corporation came in and said you know in a conclusion the self serving statements are our business will collapse tell the injunction nothing more and it wasn't good enough and shouldn't be good in the future shouldn't be good enough that someone can walk into federal court in short notice and just simply say we're going to go out of business with no proof there was no no supporting factors such as here's our customers you're here you'll be important customers these coasters might make up so much part of our business if we don't get this injunction we sentence to carry plague claims that that declaration will prevent it from doing things and we move on no i was just questioning because i thought you were telling us a few minutes ago that the only thing that was on this record was the statement that says our bit we're going out of business we can't survive and i was just questioning it seems to me at least based on this finding that there was more in play there are no more facts that record your own money wrong about that yes your honor up there on evidence offered by clear play in support of the motion for injunction was a declaration of matthew john kerry please president and it's in the record at ok play would be financially room here lead the court here on page three is not citing any evidence it's referring to carry place contentions and i believe the court may be also referring to various attorney arguments that were made at the hearing by tripoli's counsel but those attorney arguments on evidence and i actually want to focus on these because one of the attorney arguments even arguments that have been put forth in the briefing this court unsupported by happens there was a statement made by the counsel clipless counsel during the injunction hearing that clear police officers haven't been taking salaries and they're in financial straits that argument but that statement is cited in their brief to this court and i would invite the we said this is not true and there's no proof so we did tonight we did not and we did not agree to that agreed to it but i think the court here did apply properly the importance of injunctive relief and what needs to be shown and who has to prove what also we were only given sorry we're only given a week to even respond to this injunction we wouldn't have even had any ability to go in and discover for example what their true financial situation is we could add like you i think there are a number of reasons why well let's let's focus on the one that seems to me like koizumi is a great guy and seems to me to be the core of the case which is the question whether under our line of cases starting with added controls and so forth this is a case in which the there's that rising under jurisdiction under thirteen thirty eight because there is a necessary patent law issue as part of the plaintiff's well pleated complaint so why is that so here and why is it not the case that this case as in case christianson explains could have been resolved simply by deciding the license issue without getting into issues of patent ok clearly the reason why there are panel issues that are necessary  elements of the claims here is that our obligation was made to third parties this is an action seeking to hold the scene liable for communications made to retailers that is target best buy and  potential supplier like samsung so you see communications to those companies were telling those companies that the continued sale of products by a clip supplied by clear infringes missing pounds and scope of the license and the second is that they're potentially infringing up to district court decided has decided now that you represent patients about the license without me talking at all about in prin theory of liability under the state law tour which doesn't depend on infringing an infringement related issue or the validity of the  because the license doesn't take care of all of the doesn't take care of the entire scope of inference there are two fields of use of the patent and we alleged that clear plain infringed both of them the was there were a trial on the state law tort issue and suppose further that the only evidence that the point of putting it was that there were false statements that these products were outside of the scope of the license period and the plaintiff never used the word infringement or never used the word pat would that be nice if fissioned to establish liability under the state law tort it wouldn't prove the claim here and then well because the scope of the infringement assertion in the letters wasn't limited to the license in other words for them to say we have a license doesn't get them off the hook for the full scope of infringement that we were searching to the retailers therefore there was an infringement question of they would be a member of licenses and infringement maybe one of the theories that one could pursue to establish a violation of detroit but under christianson if you have alternative theories one of which does not require the resolution of a patent law issue then there is no federal correct statement to rhetorical question the question is then why doesn't this case prevent the classic instance in which there are two theories one of which the district court has already addressed in a sense by saying there is no violation of the license when the district court is also ruled that they do not have a complete license to the past and that ruling is in a companion case all the way cases of record here and cited in our brief there is there's another word that says even with the license clear play you still are facing a claim of infringement by the see if it wanted but the question here is what with it the statement is there were false statements made that constitute a state law tort and if the statements are limited to the license where's the characteristic because the letters themselves assert infringement we weren't going to these third party retailers and saying and they did have a license because the licensing even covered the other side of the infringement court and so you can't you can't evaluate whether you can evaluate the truth or falsity of the infringement warnings without addressing the infringement question it cannot be disposed to defy couldn't a jury refile the case but let's assume they found that they had met their burden whatever it is you know that's another question of the bad fa or falsity or whatever with respect to the license wouldn't that be the end of the case if he could establish that he met his burden with respect to the falsity of the license the bad faith of your statement there's a statement in there we are not there and there was no license and therefore there is infringement if they established everything they had to so with respect to the license without ever getting to the infringement they would establish liability under their state or claim and this case would be over w i don't believe so you're ok what would be left for the case of the jury comes back and they said they've met their burden they're they're violating their entitle to release state under state torturous interference based on the falsity of like they would have to prove that we had no good faith claim innocence and they had no no i thought it was that they had no good fit let's assume they've proven that there was no good faith claim with regard to the existence or nonexistence of the life they've proven except that they've are not tied strictly and and necessarily to that had they are obligations that the parties agreed to comply with now you're out your argument in part is well there's those obligations have not been adhered to right and why it if the district court says yes they have now instead there's been substantial compliance why isn't that enough as judge proceed sample shows without getting into the  stuff at all to establish a false statement because the allegation to the retailers was was was made to protect and seems patents from the french by the sale of the products from third party retailers and there wasn't just limited to the license issue they would also have to show that there wasn't another infringement claim which there was because they didn't have a full license to do ads that the other field of use the d v d specifications with respect to their life and you're going to get up and they will know you or they are going to get up and say no you have to do more jury after resolve anything with regard to infringement what could you could they not get  that well that would just be saying that they only lied to him and had bad faith with respect to half of the statement they made in the other one was ok but that doesn't get someone off the hook right i mean even if you could prove a no i mean infringement to the infringement people now know you're because the retailers were charged with both times of infringement when you're saying i take it that there was infringement then there's no license right and if if if letters for example if you look at the letter to target and the second one we talk about there's the filtering infringement and then there's a d v d specific ations infringement only the filter infringement is affected by the license for ok so you could yes all right so part of the infringement claim goes down with a wife and in other words you're liable under state walkley state law how would it save you even if your second infringement allegation with respect to certain of the product isn't all and wasn't about bad how does it save you if you you know you made one bad statement but not two they don't have to prove up to an order with status liability and estate law well if there was a valid infringement case on the d with respect to one of the assertions in the letter you're liable under the state law you know what i don't think this and state law says if you get two statements you get double i mean  think you do agree with me between two separate claims versus two theories underlying the single claim it's an important distinction it is you have two separate claims one of which arises under patent law and then you're home free the other comes in supplement your section but if you have one claim which has two theories one of which is non patent related you're out of court and the question is distance himself just took one can and so the question in this case is are we talking about claims with multiple theories are we talking about multiple claims i believe we're talking about multiple claims and or d v d specification is even nothing and that in the complaint presents th multiple infringement issues as separate questions as i read the complaint actually your honor in their current complaint but no no but we're going to second amended complaint because that by your own contention is the complaint that's before it's not the third curr so let's the third off well they did they argue that specifically in the second minute complaint you'll see allegations that their products do not contributory infringe on the respective of the license issue they actually ple it was a is an element of a certain infringement to a third party to say that infringement was done down before it was an element of the of the thing to say that they didn't have a license that doesn't take it outside of capital it's an element of the infringement if you are please the court as we've been discussing the issue for the court today is whether judge beauty's discretion entering a very narrow injunction which prohibits seem from misrepresenting what ruling was in the related case specifically judge had prohibits in the seam from interfering with clear pleas business relationships by representing the judge hop helped the license agreement between player play and a seam was terminated pursuant to twelve point three  the license agreement judge has repeatedly both hired two in and since he ended his order in the related place made it very clear that he never did any such i don't think you have to spend a whole lot of time and patience well then let me move to the ones seems to me everybody agrees generally federal laws tougher state law with respect to peru who are on the state interference is it your view that if this case out of here into the eleventh circuit that or it but ultimately states in the in the in discussing earlier with respect to the question of what's the standard that would be applying eleventh circuit i think the answer there is actually the eleventh circuit would apply the court's patent preemption doctrine to the extent that the claims involve a theory that involves pat however to the extent allegations were made and they are and have been alleged in the complaint to the extent allegations were made that are separate and apart from the patten claims those allegations would not be held to the pap standard the higher standard this court  that is unlicensed would not be i do believe that your honor i believe that is exactly the law and i believe that any support in that proposition that the license the allegations with respect to whether you have a license if you don't happen to mention the word pen that different standard applies i believe that the patent preemption doctrine itself establishes that it applies when the claim made is based upon the theory of the  the question my question is is there any case that has said and not in situations where the assertion is that this is unlicensed activity i don't know where any case that makes that exact distinction but in this case w correct me if i'm wrong because there are so many complaints of computing but i thought the letters at issue here with respect to the jurisdictional question and the statement in there have no wife and therefore gay and rick so that's not  multiple statements but i want to start going to disagree with mr kerry on one thing and that is these letters that were sent do not allege the second form of infringement the mr kerry is talking about this claim about the d v d specs if you read the letters and i realize the court has that are attached to the complaint it is clear that every one of them says they're under licensed and therefore they infringe that's what each of those letters says and so is there anything in your complaint complaints about this other infringement issue of the complaints attaches letters that were sent by mr kerry to ninety's and yes whether one of the letters it's the june eleventh two thousand and seven letter that was sent actually a number of letters have this but the best example is the june eleventh two thousand and seven letter in that the following statements were made that we believe are just flat faults and don't in any way shape or form involve even a license issue and they are this the c p double o seven u s b d v d player place player does not operate as advertised accuses us of false advertising it goes on to say the player belts provide any filtering whatsoever of entire categories and levels of explicitness top tech content which the menu screen of the player believes customers to believe be filtered that it goes on to say the player also does not filter the same objectionable content consistently not only across different movies but also within a single movie and then it says it includes that paragraph that this this clearly d v d player is qualitatively deficient and constitutes a disservice to cuss consumers as well as to the standard custom play stablished but but might it what i wanted to try to tie down and this is in connection with mr kerry's argument when there's the separate issue of infringement that doesn't pertain to the license but infringement is is that the issue in any way raised by your complaint it's not and really just for the record the june eleventh two thousand and seven letter was j a z roll for three forty nine just so that after which you can find it later that's what you'd like to do in here if you look at the hundred three second page of this letter in the second set of paragraph it makes clear the scene here by provides clear play formal notice that c p four to seven player is also knocked over by a seems license and therefore and selling its own private label d v d players and mr kerry was trying to inform them that they needed to have a d v d specifications license that they didn't have one and then they were infringing because of that that's not the same allegations are made of spectacular play and i could highlight that and show specifications license together you'd think that would cover everything would be done in reality what happened was the minute we disclose that we were negotiation with samsung and the team sense a letter saying hey they're not licensed and therefore you do business with what we're talking about here because it's not you know they're they're separate statements that thing and we don't have a life and they don't have a life and the life if it's valid and they've done all this stuff it the only valid assertion in the letter with respect to case it was the same type of thing it was infringement allegations which included it was letters being sent that include an infringement allegation in the supreme court went through and said look at these claims you're right there is a theory under which it could be patent based but there are also theories which are cases maintain separate case numbers they maintain separate pleadings they maintain separate discovery they maintain separate rulings both the only case and those seven case are completely separate cases now at one point judge hawke did enter were anticipated they would  and that is one reason that they were able to determine federal circuit jurisdiction since we're talking about other cases and this whole nexus of these cases that seem to be hovering around there is pending before this court and appeal which its argument is a couple of months ago the determination in that case is if there's a reversal in that case then i take it that assuming we have jurisdiction in this case that this case junction says you can't go out and tell people that the license agreement has been terminated what they would be able to tell people was frankly i don't know they've been prohibited from the sale of people that now is the products don't comply and therefore you should do business with them i think they w understates exactly what judge knows in this case judge talk has been living in this case for a long time he had a regional case in zero four he's had the other case and so seven he has two more cases in front in fact i feel like he and i were becoming best friends i mean pages it's forty eight one nine it actually starts at four eight one eight and moves to one right thank you your mr jarvis declaration goes through and explains in detail the effect this lesions had on the seven group case that the seam cites in this reply memorandum that case the court held that a statement by the president that said you were going to go out of business when you were just losing a part of your business was litigation for a long time it's never made any money in fact it's been spending more on attorneys than it will than it's ever made and you know missy knows this because they meet monthly every single month since its license agreements been entered they've been receiving words of reports telling them exactly what their place revenue is and so they know this judge talk knows this because he received all of those documents in the related case it goes on to say that defendants are successful in further during our assets that we're going to have some problems and limits it makes this point defendants have succeeded in diverting clear plays assets and attention away from its core business the defendants have not succeed in their efforts to quickly play out a business clear play still function does it still function business and with the enforcement see behind it is eager to move forward with the development and promotion of its products filter the business ceases to exist the suggestion that that's not evidence of irreparable harm and the judge talk not listing all the wealth of knowledge that he knows about this case to use his discretion in finding that there were some real evidence of lost millions of dollars in potential revenue associated with the placement of its products and target and best buy stores the implication being that the target and best buy determined not to do business with with clear play is there any place where that implication is spell in the record with that implication is spelled that more clearly absolutely the the complaints are off i realize there are a few out of each of those attaches to that documents letters from both best targets counsel and you know i think that really judge huff oh the last one i want to make is this judge went to great pains to make sure that this this injunction was narrowly tailored so that it would not it would not be a huge burden on either  so to suggest that the letters had everything to do had nothing to do with patents is it's to to take all context out of the letters the letters accuse those retailers of having french the letters attached draft complaints for just as serious of the mistake to discuss the question of this the breadth of the preemption dr mothered applies to licensees as well as to people who are yes directly yes but i want to put the make the point that you can't divorce the you infringe two hundred thirty five you will see to seventy one that that's the allegation and it's a unitary unlicensed and infringing goes together it's an element of two seventy want that it be without authority to all that was cited to this court so this is i believe the opposite of what most in colleges just said you don't need a formal order of consolidation we win when things are consolidated for discovery or trial which they were here they asked was i would interpret consulting for discovery would be the documents produced in both cases can be used as that that's not that does make it seem that the deposition school be taken in both cases the witnesses will be testifying simultaneously in both cases once you give me your honor the court has consoli not right that often happens yes your honor but that's not necessary and we've referred we've cited a case here on this point in the brief in which it was an informal consolidation ok third  cites the october two thousand and seven letter and if you look at that letter which is here in the record you'll see that it raises the d v d specifications issue as the first issue attaches a list of suppliers to target if you don't have a d v d specifications license your place on the list we were bringing to target's attention in this letter the two types of infringement we didn't want to specifically say and oh by the way clear play also infringes because of this other issue but we have this d v d specification issue in that letter and that letter is part of what they're suing us for in the second and you complained i don't think thank you do have one well i'm wary and i didn't have any chance to  given the other issues that are important to talk about likely to success on the merits all i would say is that if very briefly if this is your theory that the judge actually despite