to focus on the contract interpretation this is a contract which is to be interpreted to nova by this court it is an issue of law and the issue i'd like to focus on is that the district court which has been followed you know for the last twenty five years make it very clear that you essentially always look at extremes of evidence to look at the parties intent at the time of contracting the contract was entered into not to add terms or or take away terms but you have to look at it for the intent the court in this case decided the integration plus trumped all that but that's directly contrary to the bird case the bird cases  if you look at the grant clause we focus on three parts of it there's a definition at least in the third part which talks about if you license products and licensed products are defined as the products into which these fonts are integrated are the present tense verb in this court has in the past interpreted there were you know there's an issue at least whether there were any other products available at the present tense of her and this is an agreement to two chips it's basically acquiring licensing privileges for those fonts it seems to me that as of the time the licensing agreement was entered into the fonts hadn't been incorporated into any right if that's construed as a literalist literally as you want us to construe it it makes no sense to me because they they hadn't agreed to it to to use those fonts anywhere or with a licensing agreement only says you can use the copyright here if you will without being sued doesn't mean that no work had been done in fact you look at schedule c to the agreement schedule c in the case that the beta testing are even finish judicial notice if you have a computer you're always getting requests throughout you know what modifications in there so that by itself doesn't mean that it was a different operating system entirely  and i will concede that its agreement is not a model of clarity it has certain things in it would suggest it's just microsoft ninety five and certain things and it suggests that maybe there are some other versions that's i think why it was improper to have dismissed this government and microsoft and and therefore the contract didn't affect the license but there's a couple responses one is the license itself has the chinese government as a signatory so the chinese government was second of all that agreement itself mentions both in the ammonia in the supplemental ammonia so they were relevant and third is if you look in supplemental in over him or you our company has mentioned as one of the partners and there is a part i prefer not to argue that now we're not pursuing it so that's not something you're interested in you know and nor i just got to keep the court up to date i believe last month there was a retrial and beijing so we're not argue about the finale more either that list three things so yeah use modify translate in create divert derivative works based upon the fonts in object  and you read this in a vacuum this would be a license grant to microsoft they can do anything they want with the font not just limited to putting it into it to an operator that they could go into the business and sell their own fonts and that wasn't that wasn't contemplated at all so the parties at least i believe agree that this is an agreement that's contemplated for use of the funds in some product the only suggestion of which part of it would be as a license ok thank you during your honour's morning i'm steve ramage i'm appearing this morning on behalf of microsoft corporation and frankly mr jack it just took off the table some of the issues that i plan to talk about this morning so i'm going to focus on the contract construction issue and talk about the fact that the doors your scheme wide open and then little over ten years later the court decides medications were seattle times a case that frankly i handled in that case what the court did was clarify that bird versus didn't didn't just throw open the doors and what it says is and i think very important the context of this case is it says first of all this is at one fifty four washington second at five o to quote show any intention independent of the instrument or do very contradict or modify the written words what can you use it for you can use it to determine the meaning of specific words and terms use and so for example if if the contract uses the term possession date you know you get possession of the property on the possession date and doesn't define what that should look at it she discussed it but what she found was that there was no ambiguity in in any of the language in the license grant and that's significant and the reason that's significant is because one in judge by as i believe that you alluded to this when you look at clause one cause one says that you may use the fonts in object in source code form without limitation in need clause one says you ma works based on the fonts create derivative works based on the font so that's not just talking in the present tense about fonts that already partly works that already exist it's same going forward i can create works based on the fonts it also says you can't sell copies of the fonts and says you may sell derivative works based on the fonts as well so leave aside mr yaki best argument which is the definition of licensed products throw out subsection three of the license grant there's two questions there it seems to me one is the question of what is washington law generally say about recitals then the second question is what about these recitals here so for washington law generally recitals are considered extrinsic evidence because they're simply is done no problem with those i don't think that's the case here because i don't think if one looks at subsection one and two of the license grant in section two point one of the contract i don't think there's anyone the word that is difficult to understand in there that is qualified that is ambiguous now having said that if your honor thought that i was wrong and thought that when needed to go to the recitals to look to evidence that recital clearly says it's not limited to windows ninety five in the two places are in the first recitals and in the last recital the first recital simply says you know microsoft in developing windows ninety five entered into an agreement with the chinese ministry of the electronics industry and nothing more than background the last honor just said that microsoft is iris to license fonts to be used for microsoft windows ninety five p r c version or any other microsoft product any other so that tells you that th claim that they're making that the words of the license grant are limited to windows ninety five is simply wrong even if one goes to that extrinsic evidence and i would add that even if one goes to the m o u's i thought it was an interesting response to  i believe your honour's question about what does it change if we look at the m o u in the supplemental m o u and again what i didn't hear was what is the word in the license grant whose meaning is altered or clarified wrong and we have to go to the supplemental m o u one of the interesting aspects of the supplemental m o u is in addition to the fact that it has a delivery schedule as mr yok is pointed out that is in appendix c to the agreement  that has a delivery skipper partly that's the that's the license agreement itself to me the most interesting thing about the supplemental ammo you is that it has the standard terms of input method editor license agreements that at page thirteen of docket twenty nine excerpts of record are indexed by docket number and what that says is that the agreement shell include a license for microsoft to use the relevant technology in all microsoft products designated by microsoft again nothing to suggest of limitation so every piece of evidence even if one goes to extremes of evidence leads back to the words of the license shows that she did look at them well because she said to the effect that she look to see who signed them well no but she also talked about what's the legal effect because essentially what she's saying is if i if i'm wrong in the integration clause allows me to look at is this is done over review and so if your honour's look at this and say you know we think we ought to pay a little bit more attention a judge peckman did to the extrinsic evidence i got no problem with that if you had know the truth because as i said  we'll look at this supplemental memorandum it contemplates clearly a license agreement that was beyond windows ninety five and that even if you look and give all the consideration all day long to the extrinsic evidence it doesn't change the meaning of the words of the license agreement to  those two agreements talks about the fact that the agreements are executed both in chinese and english and i cannot recall right now because it doesn't matter which one takes precedence for the m o use but there is only one version of the front license agr mind since we started off with the law i figure maybe i'll go back and finish with the law because really what they're trying to do is take an unqualified license grant which i think everybody agrees even mr jocose agrees on it's face is absolutely unqualified  know universal all around the country apparently all around the world it is perpetual it is irrevocable and it is extremely broad and what they're trying to do is import a limitation into it and when you look at the first case first communications seattle times very similar thing happening there all right there's a very complex dispute over the computation of the losses under a particular agreement and hirst communication argued that referred to only certain types of losses and not other types of losses right trying to limit a broad term in the contract in the washington green court listen footnote fourteen of it's opinion about ten pieces of extrinsic evidence that are offered by the proponent there and what they say at the end of the day is none of this evidence changes the meaning of the words used and so even though we look at it we cannot change the meaning of the words used and then in the conclusion the court actually sort of expresses asking for a broad license grant to be enforced as it was written so that microsoft gets the full benefit of that product for which you paid a million dollars and johnny wants to get more money out of that it is not an exclusive license they are perfectly free to shop it wherever they want but we bargain for something and we believe that the district court gave us what we bargained for and so we ask that your honour's affirm the judgment below i'm happy to respond any more questions i don't know that i've ever finished an argument early before in my evidence in the record if you look at page one twenty eight which is from the transcript and this is what microsoft represented to the chinese court and i'm reading from page one twenty eight which is page three of the transcript  intermediate people's court the english version has even clearer statement indicating that it can be used in all microsoft products and on orders microsoft's own counsel represented that the english translation wasn't really the same as  up a couple things i want to address one is first question with the laws and in washington with berg and even i think with with her some other cases you don't even need an ambiguity that's not a prerequisite requirement so this idea p r c version was after the microsoft microsoft ninety windows ninety five version was after the microsoft ninety five version but you're right we're talking about what was being integrated into it right so when it when the distance that the skosh in about other products that could just as easily be referring to the nine p r c versions of windows ninety five the recital that that council refers to the fourth recycle is only about windows ninety five p r c first resettles about windows ninety five per so there's a difference there so so it is again well so because i pointed out it goes on to say or any other microsoft product what does that mean well i believe in that and he's only that only means windows ninety five derivative versions of night w chinese windows ninety five product project when you look i mean the good is there any other version of windows ninety five could have said that and microsoft written this contract clearer so that it was clear that it was not just a current product but any follow any other private any any other microsoft product ripen in the context of it which were asking for the extent of evidence the other products were being talked about were not any possible operating system ad inf um it was just the versions of the windows ninety five so that microsoft doesn't have to come back every time it updates windows ninety five to get a new license should i believe that's the context that's being referred to if you look at the m oh you use and the information in there for example paragraph one of the m o u says the goal is to cooperate deliver the chinese version of windows ninety five to end users doesn't talk about any other operating system or all operating systems in the future paragraph five and six that's entirely possible but we don't know what the negotiations were and we don't know what the what the thoughts were but the more you suggest that it was only for ninety five well it suggests that that that ninety five was that was the about fonts and input methods in the should be doing approved by the ministry and i was only referring to again windows ninety five as an operating system as well we're asking for this court to do by reversing the district orders to go back and allow the extremes of evidence to be considered we believe the exchange you have is going to show that the contract was only limited to two windows ninety five ok thank you cancel