that if you are not the third party beneficiary either at all or for any purpose other than section two point one that section two point one doesn't provide you a defense to infringement on the necessary for you to invoke that as a defense and second i'm not sure that third party beneficiary status is all or nothing as to the entire contract maybe it is it gives you the right to enforce two point one but not the form selection clause why did they stand or fall together ok so you suggested two possibilities one of which is that we would be able to enforce two point one in texas but not necessarily in california and i suppose it's very possible that they might not stand they might not stand together the problem is of course that once once you look at the question of whether one way is a third party beneficiary for purposes that the way to prove he is written is to say that there i think it was section six was an exception to the other broad and there are no third party that fisheries clause in the in th in the agreement that could not it's not written to say that because there is one exception namely section six in that case that the plaintiffs there could enforce all of the is a very clear provision like eleven point three here there are no third party beneficiary that there is another provision that is so clearly inconsistent with that within a particular so we have to treat that as an exception the the problem is that once you are asserting that benefit under the contract then it is the right thing to do under the contract to serve as in the place where the contract says exclusive therefore puts their standing when one or both together and issue as the threshold to their affirmative infringement and if that is the case judge toronto of this case in that practice of that court not ruling transferred motions until certain pretrial things are concluded so we have in to see we have the ability and i certainly don't walk out of this court having to disclaim the ability to make these arguments and in the same way that this agreement says donors to our customs and section two point one could it not be a basis for and against a plot of the license but it feels actually like an express license wholly apart from any third contents on the information and believes that once we had it in hand we played it we attached it to the complaint and it's our position here that this in this case because of the way should proceed in california because that is that this court agrees with the district court's opinion to dispense with third party been fishery claim pursuant to rule twelve b six and that dispose of the of the issues with respect to smartphone from suing any access customer relevant to any infringement of any bad pasteboard are less of the product purchased or service purchased from from access that affirmative defense i believe could pr that can be a third party beneficiary for purposes of one but not all obligations in the country in the first to follow rule two to those issues where the district court did not its affirmative defenses and there's no reason that these redistricting texas is not equipped to handle any of the issues that are that are being discussed and then you would be you'd be ok be fine if we were to do that nothing it goes to the particular problems but i think it's worth considering a couple of things that are relevant here with regard to that question if you've raised with me in particular about the applicability of the for selection clause if you look at the language and i have to be careful because this agreement is under seal of if you look at the language of nine point one if it applies to any subject i think i can say that without  and i think that in that context it's worth taking a look again at the two california cases that are cited of the bottom of page thirty two of our little one of them's named sessions and the other is not these are two cases involving whether a was either party to the contract but we don't have that language here we have language is much more kid in to the night case where it said in that case the prevailing party would be entitled to attorney's fees in that case  third party beneficiary of another provision was also entitled to take advantage of the attorney fees provision so i think there's a very strong analogy here that we're the contract under which for claiming a third party beneficiary right not to be subject to licensing because of the risks that are place and i'm not sure my friend or the other side made a distinction on the record between claims and defenses the claim would be precluded that not the defenses i'd like to see how that plays out i'll take that concession as