ok before we begin i just wanted to address the council question just to make sure we're all on the same page with respect to confidentiality and what we can and can't talk about here and otherwise and it gets a little confusing because there's a lot of confidential marking in appendices but it seems to me so i want to clarify if i'm wrong but there is pretty close to very little if anything in the briefs themselves and most particularly when i'm interested in it is the weather is it please the court david willey for the infineon entities i would like to begin with the duty you could face felony by irreparable harm and then the issues with respect to paragraphs three and four of the injunction the district includes technology transfer this was error because there is no consensus rule the case law relied upon by the district court and by may come before this court applied a different legal standard a different legal doctrine than the one advanced by infineon on appeal the cases relied upon by mekon in the district court concerned implied in fact covenants the duty of good faith and fair dealing which the subject of this appeal is a covenant implied in law and it is error to conflate the two doctrines by calling it a consensus rule the court has conflated the district court has conflated the two doct these two doctrines are based upon different policy considerations and have different legal requirements so it is error to blend them together rather than focusing on the legal requirements for huge separately there are some fundamental differences between these legal doctrines first implied in fact covenants may or may not exist in a particular case the implied duty of good faith and fair dealing however and implied a l sixty six for that which is cited with approval by other courts none of which is binding more instructional to our circuit for the purpose of  faith in this context i think what is important about the vermont decision is that the policy underlying the duty of good faith and fair dealing is the same and for mine as it isn't california and so we submit that the california courts will treat the issue similarly but just to be clear you were unable to find any california cases that address this issue well is california state law that would apply i understand your position that you know there are a number of cases that have been around this time going one way some going out there in various different jurisdictions but what your best case support your position in california ok we cited  district court case of copyright case where the court recognized in implied obligation not to interfere with the with the copyright but that your honor the interfere with the others parties rights to enjoy the benefits of the agreement considering the nature and purpose of the contract and the legitimate expectations of the part of the shocking case in vermont found that the legitimate make something like that where is this the field of use that you seem to be talking about might be one that i can't even tell if it's actually within the license it's not fit all because it seems that the was regarding the size of the of the filaments so it is similar in that there was a technological feel of use limitation but context of this transaction  stronger case for the violation of the duty of good faith and fair dealing the context of this transaction is that it may comes predecessor on these patents they were sold to infin predecessor for nine million dollars with it carefully negotiated fuel use licensing the technology back to make in a limited field of  contempt motion that was filed and we just had a hearing on contempt that actually is relevant to one of the issues before the court which is whether or not the injunction satisfy us requirements of rule sixty five those things right so could you tell it to us a little about your argument in that regard because i think the other side hey we've got wrongful termination if we assume that the district court was correct on her analysis of likelihood of success and have found that even after there has been a claim construction a trial on the merits before a jury and an adjudication of infringement of a discrete product it violates rule sixty five yet it's not a different kind of case in the sense and in fact this is worse than the typical kind of case in the cases that this court has decided there has been in it an adjudication there has been claimed construction there is a product here there are thirty nine with the contempt motion below is perfect evidence that this was not this this was not a clear injunction under rule sixty five the court decided that as a side the contempt motion would require it to do claim construction and decided to postpone analyzing the content motion until it had done claim construction as well as until it had heard from this court that is evidence that the injunction was fake if the injunction set forth clearly what we were prohibited from doing the court wouldn't need to do any claim construction to decide is this challenge the injunction is vague or that it's just over prop well it doesn't clearly specify what we're prohibited from doing injunction does not clearly prescribe the conduct which we are prohibited from doing i think many maybe the end up the analysis you're short cutting is because it's not explicit enough and circuit you to pick up where your friend left off because frankly the sixty five who is the on that i'm now can only speak for myself absolutely does certainly seem to me that contempt on the details that are included in paragraph three would clearly bump up against our president and would be arguably unworkable so can you tell me why you would just like your argument for justifying the scope of this injunction absolutely sousa starting point remember that the district court in the ninth circuit has broad discretion to fashion equitable relief to remedy the irreparable harm ok here i think you you said it and you hit it right on when you said isn't this a different type of case this is a different type of case because this is a contract case yeah i know but if we're talking about content couldn't infringement and breach of this implicate we're talking about infringement we're talking about not a concrete of contract case necessarily but really having to do the entire kind of analysis we do in our years and we agree and acknowledge that to prove contempt we do have to show that they're practicing one of the patents that being said i think it's too high of a standard to require the district court to have laid out cl wanted to own it because everyone understands that these are foundational patents everybody understands and it's within the context of the record that there is no commercially feasible way to get it's they haven't denied that they've contested that we haven't put in the dents on that point and it's correct that we did not put in an expert report on that point but they haven't actually affirmatively denied that in the to have an injunction i agree that there's discretion whether to bring an injunction but isn't compliance with rule sixty five day review did no go and that is that is correct but i will also say that they haven't said in a single case in the context of contract law out of the ninth circuit or anywhere else that has said that this kind of injunction in a contract a license case is improper they've only senate authority from the federal circuit that's arisen in the context of let's talk about the elephant and the dancing hippopotamus lining in the back of the book which is to say the next case yes and leaving aside whether the court acted improperly because the matter was on appeal the court took certain action and if it has if we determine that that was properly peek at the pearl evidence to see if there is a latent impunity in that contractual provision to see if there's something in it that would lend itself to a meaning that would be different than the plain ordinary meaning of the words and if it t if you get to the full record we submit that section two point one is an ambiguous and you cannot simply read out that language in the first sentence that talks about how the exclusive license is exclusive including as against i  and the reading that in fenian gives to section two point one completely at this relates those words the parties here we think pretty clearly knew how to spell it out specifically when i are was retaining some right that's the beginning of second sentence about the not withstanding part to clarify a somewhat unusual and what would otherwise be perhaps confusing relationship between the field of use and the explicit field and i think that you know we submitted a diagram a graphic on page eight of our read brief that we read that language in the notwithstanding section as being designed to clarify that relationship between the blue ring donut that goes around that green exclusive field in the middle case but the next case that comes before he just recorded in contempt you could be dealing with a product that is without market that some new product to design around goes on the market next month and you say it infringes one of the the world i don't recall ever seeing a kind of contempt for sitting that does that and in fact that's i think it's exactly that reason that results in our case law saying none of this is not the way we run contempt here so what i will say is that the order that so that's what we're left with well that's fair but it's also fair to say that they asked for that language be added signal for them to challenge the injunction because they got what they wanted puts us in a little bit of an untenable position we would have preferred that the language not be there did we look i don't i'm sure we did i don't recall with the answer was i don't think there was anything particularly on point although i don't remember off the top of my head so i don't want to you know say that firmly i seem to remember being or i can well let me say this there is a very well developed body of case law in california about the covenant of good faith and fair dealing and what everyone here what everyone good faith survive promise to one of you that don't know your loan and you're going to give me some money for it and i come in and i cut office and a meter and you look at it and can't tell anything has been done you can say hey you need to perform here i've been deprived of the benefit my bargain because we both understood that you were going to be moving my one for real you can't imply from the promise to to mow the lawn you're going to do something else you're going to trim the trees or paint the garage what  operate outside the field of us if anything it implies the opposite and here when you look at the use of the word only within the context of section two point one it's actually used twice i r says that they give a worldwide hundred sixty six there's been a lot of cases since then a lot would be a stretch but there have been half a dozen cases since that and it could easily have followed this implied coming in a pretty thin fair deal of reasoning none of them half and you can say that the fact if there's been a technology transfer that has enabled the the license you go beyond the scope that's not here and there correct that show is the only one that has gone on to consider the implied covenant of good faith and fair dealing with the other ones who could have and didn't and that would have been an easier path and some amends to the resolution that came out and so i think that it's fair to say that this would be a substantial expansion of the want to adopt their argument limitation on the patents in the injunction because what the district court was in joining us from was violating the exclusive license provision which required practice of the patent so the broader injunction would have been in  and in the same brief where we said you need to you can't just enjoy this from practicing in the exclusive field because they even said we could do that as long as we didn't infringe the patents so you can't just say we can't practice in the what we had argued in that district work is that would have been an error if you give an even broader and junction because all the license agreement proscribed is violating their exclusive patent license they wanted to say we couldn't sell products in the exclusive whether they violated the patents or not ok a couple responses to some points that counsel raced on the beauty of good faith and fair dealing not every state has the duty of good faith and fair dealing number one number two the parties here chose california law california law in the duty of good faith and fair dealing and implied in law covenant looks more at fairness fundamental fairness in good faith then do other state yes in these other cases maybe the parties could have raised a good faith and fair dealing but they didn't so those cases aren't really relevant to the question before the court that's not the legal theory we are espousing we're a spouse saying the duty of good faith  which is an implied in law cuff innit second point i want to make is that the the california case law council referred to this textual hook argument to clarify points there number one the california law does not require the implied duty of good faith and fair dealing to violate a particular contractual provision the care or case makes very clear that the obligations are imposed by law based upon the expectations parties due to the purpose of the contract not particular provisions within the contract the purpose of the contract overall that is why showoff found of violations for the same reason the expectations of the parties were that the parties wouldn't go outside the field of use the second point is that textual if they keep saying well this only argument that we're making is new on appeal it is not new on appeal what we argued below was the contract which led to the violation of the duty in good fair face and fair dealing was the in the field of use limitation which is the same basis that the shock for it found the implied duty of good faith and fair dealing was violated under the same policy that california follows so that was the basis for our argument not the only language in the contract the only language is simply an additional argument in favor of our position which is perfectly acceptable under c c s tha