i'd actually like to start just be wrapping up one one point from before i hope you'll indulge me i talked about the two point one issue during the first argument and that's just one of the i just like you to know that if you respond to an issue in the earlier appeal we're going to have to give the other side an opportunity to respond that that's absolutely fine i just wanted to say that this point we're making about whether or not it's appropriate to join them from practicing the patents if they if you can't enjoin them from practicing the it exists because they are trying to walk away from their obligations to maintain and honor x or x city and invade our field if yes and if there's not some way to stop that if there's not some po design and development activities in the injunction it talks about that issue at least four different places in the first appeal and collectively spends more than ten pages on that issue meanwhile at the exact same time it was making arguments about design and development largely for the first time to the district court in it properly granted is that correct i understand in or does the second injunction entirely eliminate the first interruption so you are correct that rule sixty tuesday says that the discreet can modify the injunction during the pendency of the appeal of the original intention the courts have construed that permission to modify to be limited to very narrow circumstances that would you agree it's only during the pendency if you know i just want you to answer right near a question what is it in to these narrow times and which came to her that's my understanding if the original injunction is affirmed and then it goes to the jurisdiction goes back to the district court and at that point if you wanted to move to modify or move to stay or move to vacate all of those motions could be made ok going going back to what i was talking about though but the fact that infineon was making the and the district court to be addressing the same issues the same time and the modifications that are allowed in the ninth circuit under rule sixty two c are very very narrow and don't apply here there are things like clarifying interaction which is what happened here what that argument and conclude in the context of this first appeal that the paragraph was too broad at least because it included design and development is that if so we find for them on that issue exactly what you said if we do it i don't know that it moots in the sense that if we want to send it back down and say no you can't do this but we sort of like the language mean i think well you know this would be the the roadmap i think they would propose not the one that may come and we in the first few i do think that there's a little bit of a logistical problem in the sense that the pearl evidence was not before the judge as part of the first appeal and the health in california law does require that peek at the peril of the dense to see if there's a ultimately some of those questions may have to go to a jury and so the right solution may be to take a portion of the injunction that relates to design and development leave the rest in place and send it back in the district court to sort out what happens with the re not being bad the question not bringing it back to the group that's right and the judge might not decide it now might might wait you know just hypothetically and i know you don't agree with this but what if the first i do want to make another one more point in addition to what i said earlier about the reading of section two point one i think that when you look at comparing the original intention to the revised injunction which takes out the decided to belmont language what you end up with is language that reads in a way that's almost on sensical because there really is a rewriting of section two point one in the revised injunction so what happens then is that the revised injunction  operate below one hundred megahertz but in some instances might operate about because these things have a range of frequencies and there's a there's a whole host of pearl evidence on that issue  the district court would have no power to and to enforce the contract if if this provision a few of the injunction is removed we disagree your honor there is a way for the district court to enforce the injunction and this is one of the points error that we did not discuss in the argument of the other appeal and that is they could meet their burden to show a likelihood of success on the merits that that provision had been breached and then show that they were irreparably harmed because of that  each because to do that they would have to show that we actually didn't violate the exclusive license they would have to show that we infringe the patents and then we would have a product we would have claimed construction that set are all the things we don't have now because rather than having been terminated which is the only thing they moved for likely her success on which is the only thing that should have been the scope of that district in other words or so that it still exists so they can enforce it right they can enforce it against us if we breach the contract and that would have been the same result that would have obtained had we not terminated the contract in other words showing that a likelihood of success and breach of you know on one contractual theory appeal so to make the simple if that if this court decides any of the other issues raised in the first appeal except for the issue about section two point one if it decides any of the other respond to basically the question the judge stall asked about whether or not the change in the injunction is effective assuming this court didn't do anything if it just sort of remanded the injunction would we go back to the original injunction or will we stay with the modification i believe the rule prescribe so when the court can make a modification it's simply giving the district court the power to make the modification while the appeal is pending but if the appellate court doesn't do anything to that modification that modification would persist even after remand and i think the natural resources defense council case that we cited in our brief is an example of where that would make sense because that was a permanent injunction and they are the ninth circuit said that the district court had the power to modify the permanent injunction while it was on while the case was on a to clarify a couple of provisions which substantively change what the defendant was ordered to do and in that case but there wouldn't be any subsequent litigation after that because it was a permanent injunction so that state part of the permanent injunction after or after remand so we would say that that rule is simply giving the district court power during the appeal to do something which it might not otherwise have because first appeal without objection from the other party there is a case that we cite it's in the appendix at page twenty seven fifty three dakota industries versus dakota before the district court if the evidence was offered to correct a misrepresentation intentional or otherwise and that stated explicitly and we're not saying they intentionally misrepresented something but there was a misrepresentation there was an argument that the language in the second sentence of section two point one that the verbs market self service were a shorthand for the verbs in the first sentence and so we offered  evidence to rebut that misrepresentation and remember the district court had no briefing about the meaning of this language before that it goes to the moons it does go to the merits your are there was no briefing though on likelihood of success on the merits as to what that provision meant because there was no motion for a preliminary injunction for an alleged violation of that provision so there had been no briefing on the meaning of that language prior to that time do you think that what the district court did did not materially alter the status quo so excuse me your honor what the district court  what respect modifying the injunction well that depends upon what the status quo means and i don't i don't think that's clear from the from the ninth circuit case law but the natural resources defense coun case which i referred to earlier which we rely upon in our brief there the there was a specific water test that someone was supposed to do and it was modified to be  requirements for the defendant were changed the injunction was modified first more specific requirements but that that was consistent with the original intent of the injunction the intent of this injunction was to interfering with that but the jurisdiction of the appellate court and there what the ninth circuit has said is that does the change by the district court affect the core issues on appeal there is a big difference factually between this case and the the case the court cited in that case there was a change of the findings and of fact and conclusions of law which more or less change the question the appellate court had to answer and may have even required briefing depending upon how extensive those are i got that's not really discussed in the case but the implication is it was three days before oral argument the like this one where the change by the district court simply moves one of the issues before the court there is four other issues before the so forth that are the core issues on appeal and court's office court's docket so i think what is unclear from the case law is whether or not that difference interfering with the question this court has to answer versus simply removing an issue from the court is an ok with respect to section two point one the issues with respect to two point one we have always contended that the plain ordinary meaning of the slang which means exactly what it said which is i r which is now infineon has rights throughout the field of use and that the only rights that are circumscribed are those specifically set forth in the second section of section two point one are parole evidence again was not offered as an interpretation of the contract it was offered to rebut the misrepresentation that was made by may come to the district court in seeking the scope of the injunction that it saw so we would contend that  considers or doesn't consider the parole evidence that the interpretation of the district court is correct and below it during the consideration of the motion to modify the injunction may also contended that the language was clear however it before this court may com has contended the language is clear but they've contended it means two different things on the one hand they argue that the second sentence really is their venn diagram that they put in there in their brief which by the way is not something that was a record evidence during negotiations that's just a demonstrative that they put in their  contend that all the second sentence does it say we have rights in the field of use outside of the exclusive field in other words there is no rights given to us in the exclusive field but then they also present the parole evidence which the district court found was inconsistent with the plain language and couldn't be reconciled with the plain language in the agreement they also present the parole evidence saying well we did get some rights in the exclusive field it's just limited to this very narrow area of testing which doesn't make any sense because of course if the parties wanted to carve out a narrow area for testing that's what they would have done rather then taking out all the fir from the first sentence from the second sentence which is what they actually did so they not only have presented conflicting interpretations of the language to the district court they presented conflicting interpretations to this court in their briefing the finding by the district court is the correct interpretation of the language one other alternative for this court if the court decides that they agree with the district court's interpretation but think that the district court did not have the power to modify the injunction for whatever reason this court could treat the the finding as a as an indicative ruling under rule will sixty two point one allows a district court to do it and just to be clear we offered the district court those options suisse we said the district court could stay this issue an indicative ruling  and we felt that district court had the power to modify because this case was different in that it moved in the issue rather than changing the question the court was actually going to have to answer so the district court chose the district is allowed to modify an injunction while the case is on appeal are narrow and even though power controls hammer net ix they argue is a different situation than here we don't think it's really that different we don't think of the difference that matters but even if you accept that argument there's a whole body of ninth circuit case law that lays out the very narrow circumstances in which you can modify during appeal none of those circumstances are met here and argue that the district wasn't trying to assist you in your exercise jurisdiction and district court wasn't clarifying the district court wasn't putting in a more a a more robust and force that mechanism nothing like that those are the exceptions that you find in the ninth circuit jurisdiction of the district court and when orders on an appeal in the an application of that ok there were some points made about the demonstrative on page eight of our opposition brief infinium repeatedly complains about that but they don't actually point out anything in the venn diagram that they contest i think everybody agrees and then diagram is an accurate representation of the rights as divided by section two point one last thing is there was some points made about rule sixty two point one and being indicative of think being treated as indicative ruling i don't i don't think there's any precedent for doing that at least i'm not aware of and they haven't stated any he says that lose and it's a lesson for my clerks back there in a good lawyer and so thank you thank you thank