fujifilm the appeal last to food you felt has been resolved by agreement of the parties and so the appeal is only proceeding as to h p there are some differences in the record as between food film and h p and i think a lot of those things were addressed in the briefs we obviously will focus only on the h p record and the so called five thirty two file format in fact neither of those arguments regarding the cat files or the five thirty two files was answered it played a generic license to fund this is even before the microsoft license was untrue in two or us before they just played a generic license to function and further discovery  continued and for the next eight months h p that nothing then thirty days before discovery was over h p for the arguments were ultimately made that is that the license is based on the spot cad files and five thirty two that was never raised  where does this all take you in terms of this case i mean your arguments maybe they did something should've done something sooner what is it what is what is that only not even into this goes to the rule fifty six  the declaration that was filed in the case in response to the summary judgment motion pointing out that the i c is never any opportunity and if those through in these k l demonstrating why precisely there was no opportunity for discovery as to these fact thirty two and  nothing associated in those documents associated with the declarations that support each piece conclusions so there are you know apparently those documents were never the i c could not address these arguments about a fab thirty two we can't say the h p argued that this is microsoft fact thirty two files again the declaration point that out we have no evidence that these catalog files came from microsoft we've never had t even if it came from microsoft what of these catalog files do as far as we know these dot cat files on the cd and then about how all of these things are supposedly microsoft and where they're found and that is what we were doing that in your question really work on the scope to make arguments but yes we have issues as to the process which is that this is dumped on us we filed the rule fifty six the declaration of the court ignores it but then we have more substantive issues and that is how the court construed and interpret the dream and so that these you know these  map microsoft or any microsoft release parties including without limitation imposed on and on and on and on and then it contains a phrase does it not that to the extent that there's an ambiguity your honor referred to the language of section one point eight in the microsoft agreement is enormously broad i had in my outline breath taking the brunt so i'll take either word the the key question here is that all of the h p accused products qualify as microsoft products under this enormously broad language and no amount of additional discovery is going to change that  but how do we know that that i mean you know they're saying that they don't have the ability to ascertain whether that that is correct or not and that is what discovery was necessary but and let me explain to you why they did they had all of these products in their possession they had all of the source code that runs on those accused products in their possession they had documents that describe the use of the fat thirty two file system and the accused products they had depositions of witnesses who were designated as thirty six witnesses on the function structure and operation of each of the accused products they had those depositions after after we served in iraq toward response that set because all of h p s accused him an instrumentalities incorporate use of or used with microsoft technology software equipment methods or services they're licensed and so they had an interactive response that told them we believe every single one of the products you're accusing is subject to this license and it was set up to the license they took ten depositions after that including three of the folks who submitted decorations on this motion and didn't ask a single question about microsoft about how this license might apply to the products that these witnesses were designated testify about no testimony was alyssa did during these depositions and they all occurred after we had the conversation that your honor referred to where we said we're asserting this defense we issue the iraq atory response saying we're starting this defense against all of our accused products and let's keep in mind that as one of the panel members pointed out he i see had an affirmative obligation to go out and withdraw infringement contentions against h p that were subject to the license now counsel says we removed we remove the products that we deem to be covered by the license i think that's not enough i think that the agreement required them to affirmatively go out investigate and figure out which one of these products were microsoft compliant and therefore subject to the license and they didn't do that they left that burden to us to get the license from them figure out which of our products were subject to the license provide them discovery and access to witnesses to could explain that and then we follow summary judgment that's how the timeline goes and if you read their brief you won't see  timeline because the timeline doesn't work for them now on the issue of the microsoft catfights i want to i want to be clear that the undisputed evidence was that the microsoft cat files are sent by microsoft to field packard once each product passes their what's called little testing money acronym is called wiggle testing and we provided evidence that for each accused product microsoft provided those kept files and those cat files were shipped out with the products so that the products would work with microsoft platforms as the factory to file system the evidence was undisputed that the products especially the printers use it as their main file transfer system and so  had declarations sworn testimony that all of the products used the fat thirty two file system as their primary means to exchange information between the peripherals that were accused of infringement and  and so the district court took all of this information and made the correct decision even in the pre motion conference we had with his honor below he looked at this language and said this is incredibly broad u p d i explain to me when you opposed the summary judgment motion how it's possible that these products are covered by the license and we still haven't heard we still haven't heard why these products are covered what we've heard is we don't understand we didn't get discovery we had no access to it this was dropped on us this is an agreement that p d i seen negotiated and signed and then sent to us as part of discovery it was not our agreement it's not agreeing that we found from a third party in or asserting some license defense based on it it was their agr not that i am aware of the only i believe there was an e mail attached to the declaration of mr potts that's in the record where microsoft expressed a view that they never wanted to hear from p again either by way of a lawsuit or through an indemnity request from one of its customers and i believe that's the only statement of any intention that there is in the record from microsoft  so your honour's we believe the correct reading of this agreement is exactly as the district court found and that is the agreement unquestionably covers microsoft third parties of which h p is one and in fact as you noted p is called out in the very minute by name and the litigation is called out leverage by him and the microsoft product definition includes combinations hybrid's aggregations of something whatever it be and a microsoft offering now that microsoft offering language i keep going back to it because it's software technology product of equipment method or service so it's anything that microsoft uses distributes sells imports licenses etc the list goes on so this definition could not be brought up in  i haven't heard anything in this appeal either in the briefs or from counsel today that disputes that fundamental point it's simply well if if we were to go back and  discovery we might learn something well that's precisely what blondie and the other cases we've cited don't permit a plaintive especially one with the kind of discovery that the point of his had here to do and that is to speculate to make conjecture about what might be obtained from further discovery i can tell you that the three witnesses who submitted decorations in support of my summary judgment motion were each deposed three of the forward opposed and each of their depositions lasted between an hour an hour and a half so these were not depositions where they were exploring the intricacies of how this license agreement the p d i see itself sign might apply to the products they were never asked that question and despite that one of the witnesses didn't testify about this whipple testing this windows hardware quality labs testing that each h p product has to go through to be certified as microsoft comply no follow for what is now our license defense based on the microsoft agreement a license defense that was pledged at the initial meeting and they failed to discover the facts that we set forth in our summary judgment motion but setting that aside the fact is that there are no facts that they can uncover that are going to change the result here and they're not identifiable and so ultimately since we're you know an abuse of discretion standard on the discovery point i would submit that we're nowhere close to judge sullivan having abused his discretion in granting summary judgment and denying the fifty sixty requests i've nothing further thank you i come back because apparently it's still not clear regarding fact thirty two we say it's not a microsoft technology we say there's no evidence this white paper we claim a license but we don't have from h p all we have from h p is that they use that thirty two but there's nothing use five thirty two but house of the microsoft thirty two no evidence as to the dot kept files we say it's not in combination with the accused products because broad agreement but you still have to have a microsoft acknowledging that is combined with the accused products and in one case there's no