please the court would like to reserve five minutes for my rebuttal by the district court erred when it ruled on summary judgment against right medical based on an interpretation of a supplier agreement interpretation of an indemnification provision that was in a supplier agreement rather than determining the parties intent as expressed by and then big us language within the four corners of the agreement the district court turned to a faulty trade usage analysis in doing so the district court did not consider the plain meaning of the claims arising from language that other courts have found to be both an unambiguous and broad in the context of  negotiated the terms of a supplier agreement for spine ology shape and that's a surgical instrument that spine ology designed to cut bone spring i would you design the shape or to be used with the product called is nothing more than a hollow metal tube that is used to guide the shape or through the patient's flesh so that it can then be taken to the location where it could be they didn't sell you the can you or they did not sell us the canyon and so how does that substantial next nexus between the claims and the conduct that's contemplated by the purchaser in this case what if you materially change what they sell you in this case with respect to this particular something else and i'm going to insure you against that because the infringer minor standard is the infringement allegation what had to involve the canoe and the shaper so it's not just the product that was so would they why would anybody in their right mind indemnify you against everything that could possibly happen later if they didn't intend to indemnify for the indemnification provision to be broad what could have happened which did not happen in this case is that there would have been combinations or a you could do either one we we don't have either one in this case that's right that's why should we construe it against you we're not sure if you drafted it right well it was it was a form agreement but it was also a negotiated agreement and the only time the when the rules of construction for contracts to be construed against the drafter that happens and when there is an ambiguity right but if i'm not sure which one judge now bandying just pointed you to two scenarios where it would be clear we're not sure which one would absent either of them and we say ok it's ambiguous and you lose well i think in that case that there should be a factual inquiry that's undertaken to really understand what the parties to this agreement intended and none of the circumstances that were existing at the time that the parties entered into this a great let's say there's more to that possibilities judge nalbandian just gave you one is  alone the shaper and one is subsequent modifications are covered we're not sure which one fits in this language and we say it's ambiguous then do we construe it against you and say well it had to mean alone because you drafted it or are you saying you didn't draft you say it's a form agreement it is a form agreement but it was not an agreement that was necessarily accepted by default again the parties negotiated the agreement and this is if if an ambiguity is found then i think that the court the court needed to do was look at the circumstances surrounding the formation of the agreement those circumstances included if the parties negotiated it spine ology didn't accept all the provisions in the agreement they fact insisted that several of the provisions and grima had to be eliminated because they wouldn't accept them would it then be a jury question it could be a jury question yes so and again this was decided on summary judgment so it would have been inappropriate for the judge to dismiss it at this stage if there were the these factual issues that needed to be considered we don't think that my device be used without a canyo instructions to its customers instructions the only way to use it is with a canyon and it can make sense this is this is a long instrument you're passing it through the patient's flash so they can then put it next to the bone location where you could cut a cavity in that bone and this is to provide some table stable passageway once you put the instrument through there open up the blades then you rotate the instrument within that t itself it's just nothing is apparent to us about how that could be used without the canyon and they open up a person surgically and then use the device or on a bone i guess you'd have to do it on a bone if you're  just cutting them open first and again we have not seen anything in the record or any of the documents where that is how the instrument is used to go back to the pattern doesn't it describe the procedure without  talking about the cane the and i will the patent does say that the canyon is optional and it does in the abstract describe the use of these schaper without knology the only apparent use of that is with the candle and again that's what spike knology is own instructions to its suppliers directors those to the surgeons direct those surgeons to do so you're saying that they knew of they would have indemnified you against the use of that combination that's that's correct and i also point out at the time that they entered into the supplier agreement with bright medical a couple years before they had been there shapers had also been accused of infringing those same patterns so they knew about the risk papers alone again it was the same patents so it was it had to be the shapers in conjunction with with the with the canon law so it was it wouldn't have to have been a method or a process i mean it could have just been the shape i mean in theory i don't i'm not sure where guess we could look at the i mean you are correct with respect to that but other circumstances where they would not accept liability for infringement if i was going to change to the other issue that he wanted to go on with no might my first question was do we even need to get to the other issue  this if you rule in our favor on the contract on the contract issue the no we don't need to reach the u c c issue and with respect to the u c c issue where we're happy to rest of our briefing with respect to that i think that lays out the reasons there we believe that there is an intent for the warranty of non infringement to apply to the buyers use of a product that's provided but at the time of the delivery of the goods there was no infringer an action infringe those patents and at the time of delivery there was really no other way to use the shaper except with the can you thank you thank you morning randall scar first biology a bully first like to start addressing the actual how all this all came about as far as the the steps involved so in two thousand and six two thousand and seven spy analogy sells right at a coal fifty shapers right medical eight years nine years later get sued by earth a phoenix for patent infringement presumably they're still using our out you put in some other stuff and usually afterwards you pack in some material after you're done with the after you're done i didn't get this shaper in if you don't can you live because you have to put the bore he put the bore in the bone he put the shaper into the bore and there's absolutely no need to put the can yell and they say the surgeons usually do that because what is sorry that i'm not a doctor what is the board's there like you take a drill works crew it could drill and you make a done you don't need a canyon but the canyon is used because you normally are inserting a lot of other stuff in there afterwards and just to keep it opens keep it from other things getting into the bore and speed only in a canyon as the pattern says on the very product that it's optional because you may only be doing a very simple operation you don't need to can but i think that i think the canyon is kind of a red herring here we didn't sell the canyon and the canyon was needed for the infringement but a rising problem is pretty broad the purchase use or sale of materials or articles required by the purchase order to me that's the that's the linchpin required by the purchase order is the shaper not the candle but it arises from the materials required by the purchase order and so what you're saying is that it's clear that the only thing that arises from the materials required by the purchase order is the shape because that's always sold as a sales or good case we get far afield here but the shape or the coin has its origin in the shape or right i mean it's the shaper and the the infringement claim i mean it only happens because you sold the shape array and they put it in the kit i mean i understand it's the whole thing that's right the infringement but then again the frenchman but for causation well i think that the mean example wasn't for this product there would not be these in the infringement claim against the system right so it's a but for cause right i don't think so  right right medicals the one that tells the surgeon how to use it they're the one to give an instruction booklet it's on the record they give them and this is how you use it and north of phoenix says that's an infringement you can't use it that way you  required by the purchase order because to me it's got to be arising from those from what we sold them and it did not arise from what we sold them and in a rose you know years later under this fact that they use it in a kit and they give the instruction to the surgeon and the surgeon is the one that's the direct infringer here not even right medical so we're so far afield it does arise from the use of articles required by the purchase order i would argue we interpret this just to go off on a tangent you agreed we interpret this not as a sale of goods but as a service provision right this provision was a sales of goods no i understand what it is i'm going off on a tangent i'm not understanding so will this provision of the contract we interpret consistent with it being a service right this being a service so i think that if we go back and focus on the fact that these are method claims are not actually accusing the have there been patent claims involving just the shaper and not method or process claims of patents they thought that we might infringe but in the end there was no action taken there was no settlement they'd everybody's walked away because assumably we convince them that we didn't infringe when they settled with right medical saddled with the wor did they said all over so it was a six hundred thousand dollars or whatever settlement did that may produce this extreme right the extreme your shaper plus there can ya or is it because you made indications in the beginning that it might not even be your shape or they made their income a copy or shape or made their own you know in this case we never got into how far you know actually if there were any if they made their own shape or and sold it no can you would discover it based on your so they get your shape or they copy it they sell it i hope not i mean it's not covered by the sales agreements is the sales agreements here and we didn't sell  copyright you know they copiers at their own risk i guess but it's not the goods that we sold them so if you're going to read if you're going to read the thing that that's covered by the purchase order well certainly weren't covered by the purchaser and do you don't and if i were in our we were safe spy knowledge on them in big letters and so you know the question that we never got to in this case which would be the next question is you know did they actually accuser reamers of infringement here but the assumption for this appeal is that they did right but this was summary judgment right correct so presumably one or another side could have produced evidence as to who shapers were involved in this case certainly they could have you know we don't know  you would through discovery right know this is a pretty discovery summary judgment motion based on just the facts based on the facts meaning what the contract were saying the lines of the contract is clear enough that we don't have any undon vacation we could both sides agree to that because they both they cross moved and so if we thought the language of the contract was ambiguous why wouldn't we move on to looking at extrinsic evidence and say that it's a question of fact for a jury i think if you followed to be ambiguous you probably would do that to us and we wouldn't construe it against the drafter because it was a negotiated contract well it's their contract i don't you know negotiated i guess but we didn't change that clause we understood that caused method we didn't supply the q i didn't you asked for the word alone back to test now banyan question why didn't you ask for the word if you were negotiating other provisions why not ask for the word alone in this but we thought it was clear that they only covered items that were subject to the purchase order and we did and that says alone but do you want to address the statutory issue provision doesn't apply and because you've already negotiated a way to you know to deal with any claims of infringement and you know i think the comments under section under see section clearly state that that doesn't apply to methods and i think the case law so those apply to methods and we have a method claim here i think it's pretty straightforward issue i don't just don't think that that applies  just like to clarify a couple of points that my friend here had brought up first off there was no evidence is ever been presented in this case that that canyon light can be used that this shape or i'm sorry can be used without the canyon again there that i know if there's no evidence there's no there's no evidence various to dispute it to us there's there's no use that's apparent no real world use that how that instrument can be used without that guide to be able to guide it to the location where it needs to be used simply don't know how it can be used in that manner there was also a question that was raised about whether spine ology shapers were ever at issue in the case there is very limited discovery before summary judgment happened here but there is evidence it was in the record and i believe that this is addressed in one of the i think it's in the reply prepared it may not be but million shapers and only forty five of them were supplied ology shapers does that have any impact on this it doesn't have any impact on liability it would have an impact on the amount of damages that we were seeking from from spine ology to fulfill their indemnification obligation so regardless of whether some of the the shapers that were at issue in the or at the phoenix litigation were right medical  and that was what we were seeking in our indemnification cause of action against them the other thing that i wanted to address real quickly is with respect to the the  the arising from language there's other cases that have been cited in our briefing that also have include indemnification provisions some of those there's one case the worldling case that specifically included  to the buyer's combination of the seller's product with the buyer system it's very different in the other case in the american family case i believe there was an indemnification provision but then there was an express card for modifications or combinations and in that case again the parties were disputing whether the infringement allegations fell within that express card but the but the main point is the parties have addressed the situation sophisticated parties have decided we need to figure out what to do with the combination and nobody did that here either way and or agree with it exactly but i would also you know give another example of a case that's has for facts very similar here which is a solid southern california gas case and in that case there was neither an inclusion or an exclusion of combinations and the court in that case found that the arising from language was very broad you had was the california ninth circuit case that's correct and the indemnification obligation there was very broad despite the fact that there were other suppliers of components that contributed to the infringement nonetheless the court found so your position is that the statute basically create indefinite for all time or into you against any infringement claims no i would not say that that's what our position  statute i think what our argument here is been is that in this case it would apply to the facts of this case because at the time that those shapers were delivered to right medical by spy knowledge they were not free of arises they're insuring you forever against any infringement claim because in theory it could have existed at the time of delivery and i think in many cases that the infringement claim will come after the product has already been delivered to the seller so if if the infringement is based on prevents the buyer from using that that product exactly in the manner that it was intended to be used then we would say in that type of claim of infringement it would have been based on the north of phoenix infringement allegations in the orthopedics lawsuit so again it was the same underlying facts that had to do with the breach of contract claim so whenever there is a claim such as or the phoenix  notes commentary in terms of the adoption of the use you see a provision or cases that interpret that and you're saying that you really haven't come up with any on this that is correct and again there was one comment  the the in the tennessee code there that did mention refer to protecting a buyer's use to ability to use the good and what we are taking from that is is that we're seeing that there is some intent in that comment as well as other case law that is interpreted rightful claim that it doesn't just protect infringement of the good but also protects the buyer's ability to use that good and wouldn't be all uses of the good but in this particular case this is the precise manner in which that good is meant to be used it's meant to be used with the canyon law and the thought that a seller can deliver a good to a buyer and then the buyer can never use that good without fear of infringement and exactly the manner in which was designed to be used seems to compel the conclusion or support the conclusion here that the warranty of non infringements should apply to the those types of circumstances what about my knowledge of the argument unless otherwise agreed language means that you agreed in the contract you have a specific provisions so it's otherwise agreed what that language means is not that there's another contract that's existing but whether the be submitted with the clerk called the next