agreed not to license it in the license agreement that should be the beginning in the end of the analysis as judge dyke said in his concurrence  was contingent on the fact that there were negotiations for particular and then ultimately those negotiations failed to yield inclusion of that particular pat into the license and i'm curious is there any evidence of something like that happening here with a thirty six i didn't see anything like that mentioned in your that sense it's it is a patent that was identified and known to the parties and was part of the overall agreement but not part of the license agreement that's what you're focused on you know as to the license agreement was there some history as to attempt by c n n fujitsu to try to gain a license that was completely comprehensive as to the entire set of optical telecom patents and then that didn't work out for them so they were relegated to this i guess one chain of  wanted some coverage for the entire telecom portfolio and the discussion was we were only going to give you a license for specific patents but you could have a covenant for the remainder of the portfolio other than the text of the covenant and the text of the licensing agreement from which i take it you're inferring that is there any evidence that was presented to the court as to the negotiation  history of the negotiations cells e mails communications and so forth i didn't see anything in the appendix i don't know if there was anything outside of the appendix that was presented to the court there is very little you know very little really me there was it was primarily about the question of the clause that had the combination language in it and that was presented to the court with respect to this combination issue that was discussed and resolved by the district court or not but not with license well i guess my participation in part but i know that's not in the record per se but didn't put anything in the record down from which we could infer that were negotiations an effort to try to include or exclude the and thirty six explicitly that did not result in the inclusion or exclusion of the rd that's right nothing in the record art except for the agreements themselves to that effect ok but the so the important you know about the patent and you don't include it and there's no question and this is under sputum the record that c n n projects you were aware of it thirty six dollars patent and its history and its importance because there was a rise in lawsuit budgets who was part of the settlement of the rising lawsuit they were intimately involved in that lawsuit and they knew how important this eight hundred and thirty six pattern was to this concept of of the fiber to the home vibrant ramesses the things they could have written  grandchild it it dots now it discloses several different categories of inventions and each of those different categories inventions is claimed differently in the various patents and so just saying that it has the same disclosure doesn't isn't the same thing as saying it discloses a single invention and i think that's one of the relevant issues here but everything in the nine hundred and twenty five patent was claimable in a thirty six patent given that those continuation patents share the exact same disclosure d as the licensed and so you don't have to worry about being chased again and by this patent or any continuation so it's so it's not just a focus on clean rooms and claims go per se with the license patent it's more about seemingly the shared disclosure that all these different so i would is that fair d to say that's what's coming out of that's the underlying rationale of why we have the rule that we have in general protect i would say no into this reason that the rule st of all the implied license doctrine narrow back rooms or reports of said that nobody disagrees that general protect creates a narrow presumption and that presumption is very specific it says if there's a continuation that issues from  patent that previously has been licensed then as to certain products then those products not the patent but the products are implied licensed so it's not doesn't create a patent license it creates a license for specific products which is important because regardless of the fact that pattern disclosure might actually disclose twenty different inventions and now the continuation patents are claiming inventions and sixteen and seventeen whereas the license patent was perhaps merely claiming invention number one disclosed in the twenty inventions that share disclosure right that's true in courts of criticize general protect for that for that and and everybody both sides agreed that if this was a divisional case that the rule would not apply and that was a northern just really annoyed case that said that in we cited that th tee said yeah that's different because  divisional but that's the point the visuals are created because there are multiple inventions disclosed in a single application in if it's only this procedural nicety that the party the patent owner filed claims that were due to different inventions in the same application and therefore got a restriction requirement and therefore he became a divisional that's the rule that's that's that elevates form over substance the point is if you have different inventions in different scopes then that scope is important and trans core made that point endo makes that same point talking about trains work that the any implied license has to be limited to the scope of the license that protective even if you have an omnibus specification disclosing twenty different inventions and then you've licensee patent that claims only invention number one and then you have multiple well ok that the ok it and understand in general that's pretty close to being out of court maybe but general pro tax says we create a presumption from transport but when you look at transport transport was not as broad as the general prote eyes of the effect of its contract so there was that kind of express exclusion of any possible implied waivers in trans core you don't have that here that's right that's true but that also also didn't attention well that's where i started but but let me let me read them this is from the opinion not from judge dykes dissent in part this is from from endo pharmaceuticals this is page windfall to the licensee we expressly limited the implied license to the scope of the license claims that's what we're you're aware of the language right general protect and care and i guess the question is for our purposes is case if they weren't aware but i agree with that they're we wouldn't be standing here making the same argument so it comes down to d their awareness of these things absolutely they knew about it they could have included that they chose not to it was their burden to put it in they have the burden of proof when of making sure that the licensing agreement is is sufficiently complete to be informative why shouldn't that be the case here as well you could have put the end something about the eight hundred and thirty six instead you're saying it's their burden where do you lied took the opposite position with respect to the bird in his dissent you know the part of the dissent talking about i do know the part of the senate but that was a situation where the other side didn't know about the patents that were impending in the in the patent office at the time and then they should later that's a different scenario you can't it's not that it's not for us to we all agree that they knew about the thirty six dollars pad it's not like we hid that from you right if we had not told them about then we would have the burden to stand up and say we had to tell you about it in order for that to be a part of your your agreement but they knew about it they would if they wanted to in order they knew how to put it in there to put it in the competence why can they put it in the license that they would be immune from future litigation on not only the seven a numerated patents that were the subject of the c n n puget sooty geisha and but for any patents that were in those families up and down the chain if you will they're not asserting an express license that now and and to reflect the intent of the parties and the scope of protection that they were seeking they used the broadest language that i think you can really come up with on a certain patent it's always easy to go back in time and make the observation that we could have covered that a thirty six patten express wasn't kind of obvious when the a thirty six was in the covenants and it was not in the license what was the purpose of that distinction presumably somebody thought about that the the license agreement covers the seven patterns that were issue and then the continuation of the continuations import that flowed from those patents the covenant as they acknowledge in the gray preferred eleven is is a separate agreement with separate rights and the covenants not only covered the patterns that were the subject of the underlying you know at least one of the two covenants that is why wasn't it likewise contemplated for express coverage in the licenses what is the answer to the why question well i think i think with respect to the license agreement the lie is that the parties rather than a numerate ing every patent that could be covered they used the common vernacular parents continuations continuations and in part in an effort to capture fields of agreement and what should be out of the agreement but but the the claims of the eight hundred and thirty six patent they could have been a pin did to the claims of the nine to five patent and the ninety five patent claims could have been appended to the it's because of the whole point that the a thirty six is a continuation of the nine to five and what d the parties bargained for was complete peace with respective fields of invention they didn't bargain contrary to what we heard they didn't bargain for peace with respect to patent climes let me ask you this question the issue that seems i think we're all in agreement probably on this the it key issue with respect to the licensing part of this appeal is the question of timing general protests seems to cover the universe of cases involving continuations which this case involves in which the patented of the rationale in general protest is you've made an agreement you shouldn't be allowed to suddenly pop up with a newly issued patent and say aha gotcha that you are pulling a rabbit out of a hat after the fact but the argument made by the other side is this is not a rabbit that's coming out of the hat this is a rabbit that's been out of have and therefore there is no surprise why is that that ration an appropriate basis for distinguishing between the previously issued patents and the not previously issued multiple answer to that question judge  the federal circuit said quote the timing a patent issuance is of no more relevant to the implied license inquiry and the timing of acquisition well i think we can all agree that regardless of the particular phrases that are used here and there in some of the opinions there is no opinion of this court that deals with this precise situation general protect the eels with the not yet issued patent this is and already issue what is as a policy matter the question that we're faced with is why we should extend general pro tem so other than i know i'm familiar with the language that you you quoted i'm not persuaded that it is disp e here but give me a policy reason for why the same policy animated the court protect apply here your honor and this gets to the the pardon if you will that's discussed in both general and quite frankly discussed a lot by judge dyke in the dissent in the end of forma and and us the question about who really is the master of the information and who really understands the patent portfolio and who understands where they're going with their patent portfolio and there's a clear answer to that and that's the license or it's not the license and for example if we take if we take cheaters argument everybody knew about the varieties and deal and everybody knew about the eight hundred and thirty six pat and everybody knew that it exist expressly they excluded other other parties that they were in litigation with parties all the time exclude future litigants from license agreements expressly they didn't there are no  no exclusions with respect to the a thirty six patent or eight hundred and eighty in any of these agreements interesting like they implied license doctrine existed at the time that these agreements were in these agreements is in there twice it wasn't it's it wasn't the subject of the briefing but it was if you it's in the appendix it's the rise in agreement appendix are on the table and against the backdrop of these facts there are no wish lucian's at all and under general pro tax and under in the form the burden was on them that's crystal clear i mean i can read all the quote from you but i'm sure you're familiar with the burden was on the license or that if it intended to pull back from the scope of an agreement they needed to say so do so expressly and that's controlling  they didn't do it here and that should be enough to carry the day you want to talk about the covenant until you know what your honor absent questions from the court will stand on the briefing on the covenant but i'm happy to answer any questions that you have about it i think i think you know what i'm a make the following observations  it is a it's a free standing agreement if you look at the preamble the preamble makes clear that it's a dream and that separate and the stand alone agreement from the license cheeta acknowledges that in the enjoy and applied license in your view and it's only through a different patent apparent patent that also has the same shared specification that you get to argue for an implied license but  to be crystal clear your understanding of and i guess what yeah well i mean to be to be crystal clear the use of the word parent by definition creates an express license to the nine to five right and so if you didn't have an express license to the nine to five then under and assume there's d no way you could argue just by having a license to the seventy one for that you had an implied license t expressed license parent and you have a continuation from that then you have the vote you have an implied license do you have an implied license from what would they be cousins or sisters then we wouldn't be here that's wrong because if the ninety five dollars and had those same claims we would have gotten the restriction requirement from the patent office we were filed visually application and everybody agrees that that divisional would and eighty eight from northern to illinois and two thousand and eighteen and this is eight hundred and eighty statement trying to distinguish that case so there was no implied license to divisional emphasizing the original patents which resulted from a finding that he patent application discloses two or more distinct invention that's a rat we have two or more distinct inventions the claim separately have nothing to do with each other you don't have a divisional here we don't but that's form over substance it's the visual in the sense that i don't remember this being raised in your brief in what we cited the cascades case they distinguish it we made the point in our opening brief that the thirty six patent has these different categories of i'm i don't remember you're making an argument therefore that that's why you should win this case he may have made an observation i don't see true we didn't say that but we made the point that it's about the scope of the