even if the three seventy three dollars patent is covered by the covenants not to sue those covenants ceased to have any effect once l g terminated the agreement in which those covenants appeared i'll start with the covenants not to sue themselves they patents that are technically or commercially necessary to make use or sell subscriber units subscriber units is a defined term in the agreement and it means complete c d m a telephones and c d m a modem cards device and because the only thing that is necessary for a subscriber unit is c d m a the only patents that are necessary to make use or sell subscriber units are patents that cover are trying to argue that because the accused devices here are subscriber units and they support l t e the three hundred and seventy three patent which is necessary to l t e must be covered by the covenants that is the wrong question to ask it is true that the hughes products are subscriber units and that's because they support c d m a but that does not answer the question of what patents are covered by the covenants to answer that question we look at what patents agreement necessary to make use or sell subscriber units and because the only thing that is necessary for subscriber units is c d m a the only patents necessary to make use or sell subscriber units are patents covering c d m a technology now let's look at why i say that the only thing necessary for subscriber units is that they support c d m a and will start with the term complete c initiate and or receive wireless communications wireless itself is also a defined term and it itself is limited to c d m a based digital cellular systems and again i'm cutting off some irrelevant part of the definition and definition and they contended that because the accused products are multimode c d m a l t e products patents covering l t e patents patents covering lp technology are necessary to make them again that is the wrong card the language that is and any subsequent generation products what is your understanding of what a subsequent generation product means that's modem card i believe the example we gave in our reply brief is something like a a smart car or something else in the internet of things that are becoming more and more common we think that is the correct understanding of subsequent generation products for a few reasons st the context in which it appears as as your honor noted it appears in the phrase complete c d m a telephones c d m a modem cards and subsequent generation products so the question we're four g products i believe i agree with you that g and three g means rd generation network technology four g certainly means four g network technology  but i don't that is not the phrase that's used here it is subsequent generation product but i guess that's the heart of just i question is exactly the problem i have with your argument when it says subsequent generation products a product that is subsequent to the c d m a three g technology it seems to me would very clearly encompass l t e four g technology that's exactly what i think the subsequent generation a delight i'm confused i feel like you want to be subsequent generation products when we think about how how products with connectivity have evolved for example we had computers that were connected to the internet st and then we had phones and now we have internet of things product smart cars things like that i think it it certainly makes sense to refer to those things as subsequent generation technology but it also makes sense to refer to the l t e four g products as this generation technology  year and we don't dispute that a subsequent generation product could be something that does a port l t e as long as it also supports c d m a and our point is the only thing that is necessary is that the subsequent generation products support c a and we think the way that that term was added to this agreement over time supports that reading recall that in the original nine hundred and ninety three dollars agreement the phrase was simply a believe it was generation products and i think that shows that the intent of the party was not to expand the term to include new network technology but to include new products that are not just telephones but for example modem cards and other products generations of technology but the generations problem that is to say a subsequent generation product is a product that is neither a telephone generation means technology is that a fair statement i believe that is correct or are you certainly have accurately stated our position i am not sure whether their position is that a subsequent generation product could be something that is l t e only or whether they believe that it must support c d m a for example on page eleven of their brief they say that the license agreement covers devices that implement three g and four g technology so i think their position might be that a subsequent generation product must support c d m a although i am not one hundred percent sure on that unless my colle further questions on this point i'd like to run a time to ask you about determination issue yes you are my understanding of posing council's a rgument about that is that sure barred from raising the terminations issue because you didn't make a motion i guess to supplement the summary judgment filings as required by the local rules and could you tell me why you didn't make a motion why you did it in the form that you did your honor to be candid i don't know exactly why the decision was made to do it in the form that we did i will say that i believe their position is not exactly that we should have made the motion i believe it is that the district court appropriately excluded the evidence that we submitted of the termination because of all had not complied with the local rules and we don't believe it will come but not complied with the local rules by making a motion right correct your honor but their position is that the district court made the decision to exclude the evidence didn't mean to interrupt you but i don't think that we know what the district court did it seems to me it's just a complete vacuum so why don't we send it back for them not send it back to necessarily find in your favor send it back to  transcript shows that the district court considered it and i think the district court erred by entering judgment in full and i don't think the pallies have contended otherwise but if the court would rather remain and so that the district court can make make clear its reasoning of the local rules the court was within its discretion to not consider something that was not properly introduced into the family judgment the fact that the courts mentioned that or somebody else mentioned them in the hearing does not mean this particular pleading was part of the record was properly introduced in the record and that the court had any obligation to consider it but counsel i think there's three significant differences between the rd circuit scream case and this one and i'll go through all three with you and then you can respond number one determination the skirt in this case occurred seven months after briefing ended in green it occurred before everything and at number two evolve diligently inform the court more than six months before the court issued a decision in this case and number three the court actually did allow arguments on the terminations point at the hearing and so but then entirely failed to mention or address it in any dispositive way in the decision itself why don't those three factors take this case outside of what the rd sort did in green and suggest instead that we have a scenario where the district court just quite frankly overlooked something something that it did allow arguments on i mean and  acknowledge the filing and talked about the possibility of a new agreement where you would have expected in that context if it was dismissing it for a family to file a motion that would have said something  or support the subsequent generations the and then the subsequent generations promised so i think if i understand you on this question correctly either way whether you read it as  i just want to address address the green case very quickly we think it is distinguishable for all the reasons that that judge moore gave and i also want to emphasize that not only was the district court in green silence about the  issue but there were reasons to believe in that case that the district court had affirmatively excluded that affidavit for example the district court stated that all of the properly produced evidence in that case was hearsay the rd circuit determine that that a conclusion that would not apply to the affidavit at issue and so the district court in green must have decided to exclude the affidavit from evidence that did not happen here the record shows that the district court actually considered the evidence of the termination and yet decided that it did not matter that itself distinguishes green unless the court has had any further questions see the remainder  time and that the judgment of the district court be reversed in full and at the very least that it be reversed at least as to infringement occurring after terminations of the agreement which is december st two thousand and eighteen counsel there was an attempt to terminate or there was a terminations of this agreement and if anything was there anything that followed it i do not know your honor why the agreement was terminated there was a terminations provision that allowed either party to terminate the agreement as of december st two thousand and eighteen and l g chose to exercise that terminations option i don't know why they made the decision as to whether there was an agreement