position taken absolutely your honor we accept and understand that we lost is that unfortunately somewhat difficult when you come your in a two eighty five sure you do have to sort of relate back to the merits of why we thought we could have won but yes you're correct what they meant was in the context of looking at both of the license agreements together i looked at the stein seat agreement if you look at the m f tech agreement you see how they fit together and you look at all of the different provisions the first recital all the way down to exhibit three point one point five when you look at all the relevant provisions together in the two license agreements you arrived in the context of those two agreements that in their refutable conclusion that and that detective had an exclusive license to fully exploited these patented technologies except for the fact that stein seed had a non exclusive right to commercialize it and went forward but there's other reasons why including all the language that you just cited other reasons why our reading of the contract responsible as it said judge andrews denied the motion to dismiss and of course retired justice lord collins not only said that our reading was plausible but that ours was the only reason and having he acknowledged that he wasn't aware of the factual make trix right and then he kind of had to back away in light of being questioned by the judge below  opinions as to issues of law and are just a lot applied to facts and are just supposed to to say what the law is and i think that's what he was saying but irrespective of the district court said the plain language allowed only one reading and retired justice this note witness point those circumstances do not exist and are not justified margaret keating the lawyer who negotiated the deal for bayer testified over and over again that she read the contract the way players thought it should be read first she said we wanted to that nobody was thinking about or no one that was discussing at that point time at the time of the license agreements that they are at any intention of reserving commercialization rights well at a seven four five four page one bear was getting out of the soybean business that's absolutely correct and it's utterly consistent and so now they were looking to liquidate their assets in the soybean technology world absolutely judge chen and that brings to the point what syngenta or dour or pioneer the price would have been different it's not retain commercialization rights in the sense that they are intended to jump back into the business and all because witnesses testified to that effect it's a retained right to be a part of the conversation if is going to fund that slip and turn around like they did and go to dow and hand over our vital valuable ip at a price that we never would have accepted from dow and we know that because dow's been ordered to pay five hundred million dollars for what it did with respect to enlist in the bay or three arbitration we have a good idea of what it is they are would have demanded if you've been acting as a straw for doubt and that's what mark keating said forty eight forty four when she said we were only wanted to transfer what was appropriate and only as broad as it needed to be but she also said i have no specific memory of them not having the right to sound she on the prior page in her testimony well which which is really not surprising she actually said she had no specific memory of conversations about that but that's really not surprising the best evidence of what could be done are the agreements themselves and to turn it around judge still there is absolutely no explanation from dow and there never has been of why the subway sense of why the commercial right stein seat agreement are not sublicense of all there is no explanation for that there can be none other than when the bundle of rights were handed over the commercial rights that were handed over to the steiner were non self licensable but i understood that there is heard they are you didn't care if klein didn't care who was paying what for what part of the rights that they were able to divided up amongst themselves as they wished at least there's testimony that if that's absolutely correct or still when it gets to the key non sequitur the district court's opinion how stein allocated these rights to mean bay or didn't care what the rights work that's a non sequitur they are care deeply miss keating said it at age forty eight forty four in testimony the district court relied on for finding that no witness supported they are in fact miss keating over and over again said that our interpretation was correct she said she remembered discussion of retained rights as upset at a seven four four three she said that steinberg really commercialise if they work together she said that mistyped did not get commercial rights at a forty eight forty five and yes she said she had no specific recollections of discussions about this but this is memorialized in the agreements themselves and actually if you take a look at eight fifty seven eighty nine that's the first draft of these provisions authored by m s tax lawyer mr solar and if you look at the provision for a mistake in there it's clear as day that the exception is meant as an exception to the power complaint those are inextricably tied up with the merits of the case you can move quickly if you have a good case and you can file for an injunction if you have a good case as to ownership it is down it's actually late it douse door what went on with ownership  apparently i guess what we're supposed to do is agree to lose both cases and irreconcilable factual theories no we when we what we did was not litigation misconduct it was it to do anything else would have been malpractise to go to the bigger three arbitration and agree to lose on a theory we had already lost on in the district court it doesn't make any sense and yes we did appeal the issue to this court there was plenty of evidence that doubt had some ownership interest we lost we did the right thing and we did not litigation misconduct to tell the arbitration panel in paragraph one forty eight of our submission that it was judicial stoppel del says we didn't used to additionally stoppel it's right there in our library thank you i'll take the rest of my time deferential the court explained because the district court lives with the case over a prolonged period of time where there really is a fundamental issue is there not on the question of when attorneys  that i think that's that's well quite yana to the point i would like to make is underlying but i think this court and certainly supreme court jurisprudence is respect for the district court process and what happened here is we had a district court po over the record today summary judgment hearing issue a thirty two page fees award finding that bears theory here rested on control of theories a contract and investigation they didn't call their witnesses that some of them were the the kind of former employees they had no theory about why we couldn't work with the partner on a stack that was named in the press release and even worse as an additional wrinkle here the relevant agreement here is  liner english law and it's common ground under english law the facts have to be developed have to be understood before you can read the contract and they made no effort to to to explore the facts that my colleague on the other side mentioned judge anders and he did deny the motion to dismiss but let's look at exactly what he said this is that appendix seven three seventy east all he's saying is if you were sort of a licensed offense that's a fact for the fence and you're not going to win a motion to dismiss and that's what the for the key question this case is whether amistad has the right commercialise that's congress that's the key question she was asked this question three times here's a quote do you have a memory of anybody involved in the deal suggesting that  have the right to commercialise so that's the key question and she was asked it three times and you want to refer to this earlier the same page quote i don't have a specific memory of that specific comment and another part of their argument now  are retained its commercial rights but she was asked that as well that's that same page she was asked that question and again no specific memory of anyone ever discussing their retaining commercial rights now remember this is hundreds of millions dollars decision we had the head of the morgan saying we had a choice we did a study we decided we were not going to spend one hundred millions of dollars to do the research and the development they were getting out you would have think you thought that the general associate general counsel negotiating this would remember that as you members many of the details now she does in a few places indorsed the current theory that fire is arguing but if you look at the language again it's a four point four five what she is only saying is she's just reading the contract or are she just council's not in the picture when they decided to file this lawsuit you know if he enters a picture much later and as a district court found and he testified live so this is a win the world of difference when you have additional court listening to a witness you concluding  and also the let's talk about the plain language reading of the contract the church and was asking about there are simply two agreements and when you read the two remus together there's only one answer and so it's exceptional you are because we have the lack of the precept diligence we have a plain language argument that we have not backed away from the church and explained the plain language argument of the tissue here found contorted and here's the key part you are no witnesses that support their theory that's another reason why this case is so unusual no witnesses came forward to support the theory that emma's tactic not have commercialization rights to the contrary there when this morgan says no we were getting out of the business we were done with that business so it's exceptional because no priest intelligence is exceptional premised on a theory that doesn't hold up when you actually just read the words of the two contracts and it's exceptional because they have no witnesses to support their theory and just to qualify that past a moment they do have more tolerance and i do have keating saying that they read the contracts and that's only back commercialisation rights saying i understand your response which is that's their present day reading it has nothing to do with facts on the ground factual matrix think about the eat three ownership question you know while you're in litigation you don't know which side different tribunals are going to come out you don't want to be on the losing end of the stick in both tribunals it's illogical to be on the one likewise the winning side of course and when you're arguing x and then you're arguing not tax and two tribunals but in order to preserve interests why is that some terrible to advance a position that helps you in both those tribunals not yet knowing which way you are tribunals going to come out and then potentially stop yourself needless expense upin litigation and the e three conduct illustrates the harm when you have parties not taking the process seriously so yes now in the arbitration they quickly agree about who owns the three but they made a big there was a big fight about it in district court on that very topic and that was a complete waste of the system's time that's the part that the district court was upset about i think you know gone and there's also some sort of you shouldn't refile on may it now but i am not going to mean so it's there i don't know what to make of it i think your honor is used the word factory and i think it factors into the overall picture but what we have here is a fatality in the circumstances inquiry from the supreme court and that is part of the story of the unreasonable manner in which this case was litigated the other piece aside from lack of p c diligence here is is the preliminary injunction that i think really upset the district court she didn't use the it's an example of stressing the system in a way that section two eighty five is designed to but it's a little speculative always and we have you know there's nothing wrong with not there's nothing in it shows that they were just really just trying to get your side was still years away from are actually commercializing exactly are and actually to do if you look at the water that they proposed and it's a twenty one one two to three what contemporaneous memory and things like that yes the time the time did did seem to the district court to be playing games with the way the depositions were coming out it seemed like the depositions were gods at father country but so yes that's another thing that upset upset the district court market anything on the other side of the ledger you just have what the district court called creative lawyer i next eight nine seven eight there is just quote no record evidence of any other theory of the one that's described just fully briefed by both the party correct and it's not unusual by the way to file for their injunction motion well in advance of the event it's really going to hurt you actually do it all the time it's because you want to give the district more time to get whatever evidence you're hearing it needs to evidentiary hearing that some circuit told is actually mandatory so it's not that unusual so just to be clear your side never withdrew from a minor injunction that's correct it just laid there yes without it and nobody went and picked it up filing of this motion for summary judgment in the hearing there on one three months later ruling against us sort of what the and to all of that but what i would like to go to the first point counsel opposite mentioned which is the so called rush to filing something the district court at eight look in to all of this and hundreds and hundreds of hours billed by the milgram firm outside counsel it was not forty eight or seventy two hours the operative complaint here was filed six months after the doubt press release which is where i'd like to go next and i know  and that was only cleared up when dow's witness gave testimony in a declaration summary judgment so that entire time there is pursuing a plausible alternative theory that has nothing to do with the commercial rights issue that is that this is not our irreconcilable factual theories and yes there's a lot of money at issue here but that really confuses the issue stein only paid five point six million for this if dow had been our counterparty if e s f had been our counterparty they would have paid a lot more which is exactly why however you look at the language barrier did retain a right to be a part of the conversation with this is did support bear marketing to it and the last point i'll make is david morgan testified repeatedly