Full opinion text
MEMORANDUM OPINION [REDACTED] PAYNE, District Judge. This patent infringement action is before the Court on cross-motions to enforce a settlement agreement embodied in a Memorandum of Understanding (“MOU”) that was negotiated on December 17 and 18, 2002, and that was executed on December 18, 2002 by the highest ranking officers of the parties, with authority to bind their respective companies. The parties agree that the MOU is a binding agreement that contains all material settlement terms and that, at least on December 18, 2002, they intended to be bound by that agreement. Thus, there is no dispute that the parties intended to settle the pending patent litigation. Unfortunately, the parties disagree over the terms on which they reached that putative settlement. Each party offers a different interpretation of the MOU, which it urges the Court to adopt and enforce. BACKGROUND The Plaintiff, Silicon Image, Inc. (“Silicon,” “SIMG,” or “Sil”), is a member of the Digital Display Working Group (“DDWG”), which released the Digital Visual Interface, Revision 1.0 Specification (“DVI Specification”) in 1999. Generally, the DVI Specification describes technology related to an all digital interface between a computer and a digital display. The DDWG is comprised of a number of “Promoters” — companies that formulated the DVI Specification. Like other Promoters, Silicon owns a number of the patents required to create products that implement the DVI Specification, including, U.S. Patent Nos. 5,905,769 (the “ ’769 patent”) and 5,974,464 (the “ ’464 patent”), the two patents at issue in this action. To promote DVI technology as an industry standard, and to allow manufacturers to produce components that comply with the standard, the DVI Specification Promoters agreed to give anyone that signed a DVI Adopters Agreement a royalty-free license to practice “Necessary Claims.” Generally speaking, Necessary Claims are any Promoter-owned patent claims that one must infringe to implement and comply with the DVI Specification. The DVI Adopters Agreement refers to all other Promoter-owned patent claims as “Non-Necessary Claims,” which, although potentially useful in implementing DVI, are not necessarily infringed when complying with the DVI specification. The Adopters Agreement provides no license for the Non-Necessary Claims. In 1999, the Defendant, Genesis Microchip, Inc. (“Genesis” or “GNSS”), signed a DVI Adopters Agreement and began developing DVI receiver technology, which Genesis later incorporated in a number of its products. In April 2001, Silicon filed this action against Genesis alleging that Genesis infringed: (1) the Non-Necessary Claims of the patents-in-suit; and, (2) the Necessary Claims of the patents-in-suit by selling DVI components for use in the consumer electronics market (“DVI-CE”), a field of use that the DVI Adopters Agreement license allegedly does not cover because, in Silicon’s view, that license is limited to the field of personal computers and associated digital display devices. In response, Genesis alleged that: (1) its DVI products did not infringe the asserted patent claims; (2) the asserted claims were Necessary Claims and therefore licensed; and, (3) its sales of DVI-CE products were within the scope of the DVI Adopters Agreement license. Thus, the crux of the dispute was Genesis’s alleged use of Non-Necessary Claims for DVI components in the personal computer market and both Necessary and Non-Necessary Claims for DVI-CE components. The Court stayed this action while a like proceeding between the parties progressed before the United States International Trade Commission (“ITC”). The stay was dissolved when Silicon voluntarily terminated the ITC proceeding before a hearing on the merits. Thereafter, the Court entered scheduling orders that set discovery and other deadlines, scheduled a final pretrial conference for January 7, 2003, and set trial to begin on January 17, 2003. The Court held a Markman hearing and issued a claim construction opinion on December 10, 2002. Summary judgment arguments were concluded on December 4, 2002 and, on December 16, 2002, the Court entered an order severing two claims of the ’464 patent for a separate trial on April 30, 2003 and setting a discovery cut-off of February 28, 2003 on the severed claims. On December 17, 2003, the Court advised the parties that a summary judgment opinion would be entered on the following day and suggested that further settlement discussions might be in the best interests of both parties. In a telephone conference on December 18, 2002, the parties represented to the Court that they had reached an agreement to settle the pending case, including the severed ’464 claims. The parties memorialized their agreement in the MOU, which the Chairman and Chief Executive Officer (“CEO”) of each company signed. (Evid. Hearing. Pl.’s Exh. 6) (“MOU § _”). The MOU called for the parties to prepare so-called “Definitive Agreements” by December 31, 2002; but the MOU also provided that, if the parties were unable to reach Definitive Agreements by that date, the MOU would be the binding agreement until the parties signed Definitive Agreements. (MOU § 7). Accordingly, there being no Definitive Agreements by December 31, 2002, the MOU became the binding agreement. Nonetheless, in early January 2003, the parties endeavored to negotiate the Definitive Agreements envisioned by the MOU. During that process, it became apparent that the parties were not of like mind respecting the meaning of the royalty provisions in MOU Section 1, entitled “License Agreements.” The discussions and draft agreements in January also involved potential terms for inclusion in the Definitive Agreements that are not mentioned in the MOU. When the parties abandoned their efforts to reach Definitive Agreements and filed the pending motions to enforce the MOU, all potential contractual terms not appearing on the face of the MOU fell to the wayside. Briefing on the pending motions has revealed that the sole disputed issue respects the royalties in the MOU License Agreements. Both parties agree that, under the DVI Adopters Agreement, Genesis has an existing, royalty-free license to practice Necessary Claims in the personal computer field. The parties also agree that the MOU License Agreements confer a license permitting use of: (1) DVI Non-Necessary Claims; (2) DVI Necessary and Non-Necessary Claims in consumer electronics; and (3) HDMI Non-Necessary Claims. The parties disagree, however, on the royalties payable for these new licenses. Silicon contends that the royalty rates described in the MOU apply to all the DVI and HDMI transmitters and receivers that Genesis produces, whether or not those products infringe any patent claims. In Silicon’s view, although the MOU license grants are limited to specific patent claims, the method of payment for those licenses is independent from those limitations, that is to say, the royalty base consists of all Genesis DVI and HDMI transmitters and receivers irrespective of infringement. Under this paradigm, when determining whether Genesis owes royalties on a particular Genesis product, it is not necessary to determine whether that product infringes a licensed Silicon patent claim. Genesis, on the other hand, asserts that the royalty base is limited to those DVI and HDMI transmitters and receivers that actually infringe the patent claims described in the MOU license grants. On January 13, 2003, Silicon filed its Motion Re December Proceedings in which it proffered the foregoing construction of the MOU, alleged that Genesis was attempting to renege on the MOU as thus construed, and requested the Court to find that the MOU bound the parties according to Silicon’s construction. On the same day, Genesis filed its Motion To Dismiss, urging its own construction of the MOU and arguing that the terms of the MOU require Silicon to dismiss the pending patent infringement action. On March 7 and 8, 2003, in accordance with the controlling law discussed below, the Court held an evidentiary hearing to resolve disputed factual issues respecting the MOU, its formation, and the conduct of the parties immediately following formation, all to the end of ascertaining whether the MOU was the product of a meeting of the minds on December 18, 2003. On March 17, 2003, Genesis issued a press release announcing a merger with Pixelworks, Inc., a competing producer of digital display technology. That same day, Silicon moved for expedited discovery respecting the Pixelworks merger, reasserting its position that Genesis was attempting to renege on the MOU and arguing that the merger and associated negotiations might explain why Genesis had changed its position. On March 19, 2003, the Court issued an order granting the proposed limited discovery. On March 24, 2003, Silicon too announced a corporate transaction, revealing its acquisition of TransWarp Networks (“TransWarp”), a privately held company focused on switching and storage management — product areas that are unrelated to the technology at issue in this action. On April 3, 2003, Genesis moved for expedited discovery on substantially the same basis that Silicon had sought discovery respecting the Pixelworks merger, but that motion was denied because, inter alia, it became evident that the structure and timing of the TransWarp transaction, and the nature of the affected market, were such that the transaction could not have borne on the settlement negotiations here at issue. With some difficulty, all discovery and supplemental briefing respecting the MOU concluded on May 6, 2003. This procedural context informs the ensuing discussion and application of the substantive law. DISCUSSION The parties’ request to enforce a settlement agreement containing disputed terms presents several issues. First, it is neces-' sary to determine the procedure that a district court must follow when asked to enforce a settlement agreement in an action that remains pending. It is next necessary to determine the law applicable to the formation and interpretation of the settlement agreement as well as the parties’ respective burdens of proof with respect to those issues. Finally, the Court must determine whether the settlement agreement was the product of mutual assent to the material terms of settlement. To do that, the Court must interpret the settlement agreement. Each of these issues is addressed in turn. I. Procedure For Resolving Disputes With Respect To A Putative Settlement Agreement The solemnity with which the federal courts approach settlement agreements cannot be overstated. On that point, it has been said that: Agreements settling litigation are solemn undertakings, invoking a duty upon the involved lawyers, as officers of the court, to make every reasonable effort to see that the agreed terms are fully and timely carried out. Public policy strongly favors settlement of disputes without litigation. Settlement is of particular value in patent litigation, the nature of which is often inordinately complex and time consuming. Settlement agreements should therefore be upheld whenever equitable and policy considerations so permit. By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before over-burdened courts, and to the citizens whose taxes support the latter. An amicable compromise provides the more speedy and reasonable remedy for the dispute. Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.1976); see also Hemstreet v. Spiegel, Inc., 851 F.2d 348, 350 (Fed.Cir.1988) (“The law strongly favors settlement of litigation, and there is a compelling public interest and policy in upholding and enforcing settlement agreements voluntarily entered into.”). District courts have inherent authority, deriving from their equity power, to enforce settlement agreements. Hens ley v. Alcon Labs., Inc., 277 F.3d 585, 540 (4th Cir.2002). A court may enforce a settlement agreement within the context of the underlying litigation without the need for a new complaint. Id. When asked to enforce a settlement agreement, a district court should engage in two distinct inqui'ries. First, the court should ascertain whether the parties have in fact agreed to settle the action. Moore v. Beaufort County, N.C., 936 F.2d 159, 162 (4th Cir.1991). Once the court determines that the parties have agreed to settle, the court must discern the terms of that settlement. Id.; see also Power Services, Inc. v. MCI Constructors, Inc., No. 00-1358, 3 Fed. Appx. 190 (4th Cir.2001) (unpublished). The court cannot enforce a settlement until it concludes that the parties have reached a complete agreement. As the Fourth Circuit has held: the district court only retains the power to enforce complete settlement agreements; it does not have the power to impose, in the role of a final arbiter, a settlement agreement where there was never a meeting of the parties’ minds. Where there has been no meeting of the minds sufficient to form a complete settlement agreement, any partial performance of the settlement agreement must be rescinded and the case restored to the docket for trial. Ozyagcilar v. Davis, 701 F.2d 306, 308 (4th Cir.1983) (citations omitted). “Thus, to exercise its inherent power to enforce a settlement agreement, a district court (1) must find that the parties reached a complete agreement and (2) must be able to determine its terms and conditions.” Hensley, 277 F.3d at 540-41. When a factual dispute arises over the agreement’s existence or its terms, the district court may not enforce the agreement summarily. Id. at 541. Instead, it must conduct a plenary evidentiary hearing and make findings on the issues in dispute. Id. A district court cannot enforce a settlement agreement if the evidence reveals that the parties did not reach an agreement or that they did not agree on all the material terms. Id. If the Court determines that there was no meeting of the minds, i.e., that there was never complete agreement on the material settlement terms, then the action must be restored to the calendar and come to trial with the parties placed in precisely the same position as they occupied before the putative settlement. Wood v. Virginia Hauling Co., 528 F.2d 423, 425 (4th Cir.1975). As explained in Section II.A below, the procedure a district court must follow in deciding a motion to enforce a settlement agreement is a matter of regional circuit law. In keeping with that principle and the decisions of the Fourth Circuit, the Court held an evidentiary hearing and allowed limited discovery to aid in determining the terms of the MOU and whether the parties in fact agreed to those terms. Before addressing the evidence thereby obtained, it is first appropriate to outline the legal principles to be used to “determine the terms and conditions” of the MOU. II. Applicable Legal Standards A. Sources Of Law A settlement agreement is a contract and disputes respecting a settlement agreement are resolved according to the principles applicable to contracts generally. Power Services, 3 Fed.Appx. at 192; Byrum v. Bear Inv. Co., 936 F.2d 173, 175 (4th Cir.1991); Armstrong v. Davis, 275 F.3d 849, 876 (9th Cir.2001); Howard v. America Online, Inc., 208 F.3d 741, 747 (9th Cir.2000); Core-Vent Corp. v. Implant Innovations, Inc., 53 F.3d 1252, 1258 (Fed.Cir.1995). This dispute, however, concerns an agreement to settle an action arising under the federal patent laws. Thus, it is first necessary to determine whether the federal common law or state contract law shall provide the applicable contract interpretation principles. In Gamewell Manufacturing, Inc. v. HVAC Supply, Inc., 715 F.2d 112, 115 (4th Cir.1983), the Fourth Circuit, directly addressing that issue in a patent infringement action, held that federal common law principles govern the standards by which federal litigation may be settled. The Fourth Circuit explained, “[s]ettlements ... assertedly entered into in respect of federal litigation already in progress implicate federal procedural interests distinct from the underlying substantive interests of the parties ... [, so that] the standards by which that litigation may be settled, and hence resolved short of adjudication on the merits, are preeminently a matter for resolution by federal common law principles, independently derived.” Id. (emphasis added). As a result, the Fourth Circuit found it proper to “apply an independently derived federal standard to govern resolution of the settlement issues raised in [that] case.” Id. at 116. The courts in this circuit have continued to follow the Gamewell holding in various types of federal litigation, including settlements in patent cases. Commonwealth Film Processing, Inc. v. Courtaulds United States, Inc., 717 F.Supp. 1157, 1158 (W.D.Va.1989) (applying federal common law to a patent litigation settlement agreement that was, in essence, “a complete, fairly complicated, license agreement”). The Fourth Circuit, rather than the Court of Appeals for the Federal Circuit, decided the appeal in Gamewell because the underlying action was filed before October 1, 1982, the effective date of 28 U.S.C. § 1295(a), the statute vesting exclusive jurisdiction over patent appeals in the Federal Circuit. Because the Federal Circuit now receives all such appeals, the Fourth Circuit may never have the opportunity to revisit the Gamewell holding in the patent litigation context. This procedural nuance is of some moment because the Federal Circuit has held that, in some instances, settlement agreements in patent cases are governed by state contract law. Gjerlov v. Schuyler Labs., Inc., 131 F.3d 1016, 1020 (Fed.Cir.1997) (applying state contract law, as opposed to “federal patent law,” in interpreting a settlement agreement because such was “a question of contract interpretation”); see also Rhone-Poulenc Agro v. DeKalb Genetics Corp., 284 F.3d 1323, 1327 (Fed.Cir.2002) (finding, in the context of a license unrelated to a settlement agreement, that “in general, the Supreme Court and [the Federal Circuit] have turned to state law to determine whether there is contractual ‘authority’ to practice the invention of a patent. Thus, the interpretation of contracts for rights under patents is generally governed by state law.”). But see Core-Vent Corp., 53 F.3d at 1256-59 (looking only to decisions from the United States Court of Claims for applicable principles in resolving a dispute respecting the settlement of a patent infringement action). Nevertheless, in reviewing procedural matters that do not “relate” to patent issues, the Federal Circuit adjudicates the rights of the parties in accordance with the applicable regional circuit law. Wang Laboratories, Inc. v. Applied Computer Sciences, Inc., 958 F.2d 355 (Fed.Cir.1992); Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1575 (Fed.Cir.1984). A procedural matter is related to patent issues where it: (1) is itself a substantive patent law issue; (2) pertains to patent law; (3) bears an essential relationship to matters committed, by statute, to the Fed eral Circuit’s exclusive control; or, (4) implicates the Federal Circuit’s jurisprudential responsibilities in a field within its exclusive jurisdiction. Bose Corp. v. Infinity Sys. Corp., 274 F.3d 1354 (Fed.Cir.2001); Midwest Industries v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed.Cir.1999). Because the present questions respecting the formation and terms of a settlement agreement, which arise in the context of deciding whether to enforce the agreement, are not peculiar to patent law, Fourth Circuit precedent is controlling and, therefore, federal common law is applicable. State law, however, remains an appropriate source from which to draw contract law principles. As the court noted in Sadighi v. Daghighfekr: To provide some content to federal common law, a district court “is free to choose any rule it deems appropriate, and it may look for guidance to other federal contexts, to what it perceives to be first principles, to considerations of equity and convenience, or to the law of the forum state.” Charles Alan Wright et al., Federal Practice & Procedure § 4514, at 457 (1996). As the Fourth Circuit put it, district courts should “seek the appropriate federal rule in the usual sources — the best-reasoned decisions in the general common law.” Gamewell Mfg., Inc., 715 F.2d at 115. 66 F.Supp.2d 752, 759 n. 2 (D.S.C.1999) (applying forum law to the settlement of all claims). To the extent that state law does inform the contract construction principles applicable to the MOU, California law is most appropriate. The Virginia choice of law rules provide that contracts are governed by the law of the place where the contract is made. Johnson v. MPR Assocs., 894 F.Supp. 255, 258 n. 1 (E.D.Va.1994). Unless otherwise provided in the contract or by statute, “a contract is made at the place where the contract is executed; the contract is executed where acceptance occurs; and acceptance occurs where the last act is done which is necessary to make it binding.” Western Branch Holding Co. v. Trans Marketing Houston, 722 F.Supp. 1339, 1341 (E.D.Va.1989). Here, the MOU was negotiated, written, and executed in California by California residents and the parties were in California when they participated in a conference call to confirm that the MOU had been executed. Therefore, California contract law is the applicable state law source. In any event, whether to observe federal common law and, where helpful, California law, or whether to apply only California law, is not outcome determinative because the parties have identified no conflicts with respect to the legal principles that apply here. Nor has the Court ascertained any difference between federal common law and California law on the controlling principles. B. Applicable Principles In Interpreting Settlement Agreements Two basic points require consideration: (1) briefly, the burden of proof; and (2) more fully, the applicable principles of contract interpretation and formation. (1) Burden Of Proof With Respect To Asserted Contract Interpretations The parties agree that each bears the burden of proof on its respective interpretation of the disputed MOU provisions. Genesis, however, asserts that Silicon has the burden of overcoming the standard presumption against the drafter of disputed contractual terms. Because the MOU was negotiated and drafted by both parties in a joint drafting session, that presumption is inapplicable here. See Hendrick v. Brown & Root, Inc., 50 F.Supp.2d 527, 533 (E.D.Va.1999) (“ambiguities in unilaterally prepared contracts are ... resolved against the drafter”) (emphasis added); AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 274 Cal.Rptr. 820, 799 P.2d 1253, 1265 (1990) (insurance policy not strictly interpreted against an insurance company where the policyholder did not suffer from lack of legal sophistication or a relative lack of bargaining power, and where it was clear that the insurance policy was actually negotiated and jointly drafted); Bristol-Myers Squibb Co. v. United States, 48 Fed. Cl. 350 (2000) (“When the contract terms are negotiated, contra proferentem is inapplicable.”) (citations and quotations omitted). (2) Applicable Contract Interpretation Principles As previously set forth, a settlement agreement is a contract. Hensley, 277 F.3d at 540; Core-Vent, 53 F.3d at 1256; Timney v. Lin, 106 Cal.App.4th 1121, 131 Cal.Rptr.2d 387 (2003); In re Marriage of Hasso, 229 Cal.App.3d 1174, 1180-81, 280 Cal.Rptr. 919 (1991) (“A settlement agreement is in the nature of a contract and is therefore governed by the same legal principles applicable to contracts generally.”). To interpret the contract, i.e., to ascertain the sense and meaning of the language setting forth each party’s contractual obligations, the Court must look to their objective manifestations of intent. Core-Vent, 53 F.3d at 1256. The clearest manifestation of intent is the contract’s plain language. Providence Square Assoc., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.2000); U.S. Cellular Inv. Co., Inc. v. GTE Mobilnet, Inc., 281 F.3d 929, 934 (9th Cir.2002); Barseback Kraft AB v. United States, 121 F.3d 1475, 1479 (Fed.Cir.1997) (citing McAbee Constr. Inc. v. United States, 97 F.3d 1431, 1435 (Fed.Cir.1996); C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1543 (Fed.Cir.1993)); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991); People v. R.J. Reynolds Tobacco Co., 107 Cal.App.4th 516, 525, 132 Cal.Rptr.2d 151 (2003). Where that language is clear and unambiguous, the proper interpretation is that which assigns the plain and ordinary meaning to the contract terms. Providence Square, 211 F.3d at 850. If the language is ambiguous, however, the Court may resort to extrinsic evidence to uncover the intent of the parties and, hence, the proper interpretation of the contract. Providence Square, 211 F.3d at 850. Although extrinsic evidence respecting contractual terms is thus relegated to those situations in which a court finds the terms ambiguous, only “[w]here contractual language is capable of two reasonable interpretations,” is it ambiguous. Safeco, 26 Cal.4th at 763, 110 Cal.Rptr.2d 844, 28 P.3d 889 (emphasis added); see also Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed.Cir.1999); Lange v. TIG Ins. Co., 68 Cal.App.4th 1179, 81 Cal.Rptr.2d 39 (1998); Aetna Cas. and Sur. Co. v. Fireguard Corp., 249 Va. 209, 455 S.E.2d 229, 232 (1995). In determining what is reasonable, a court must examine the context and intention of the contracting parties. Metric Constructors, 169 F.3d at 752; Hunt Constr. Group v. United States, 281 F.3d 1369, 1372 (Fed.Cir.2002) (“The contract must be considered as a whole and interpreted to effectuate its spirit and purpose, giving reasonable meaning to all parts.”); Sy First Family Ltd. Partnership v. Cheung, 70 Cal.App.4th 1334, 1342, 83 Cal.Rptr.2d 340 (1999); County of Marin v. Assessment Appeals Bd., 64 Cal.App.3d 319, 134 Cal.Rptr. 349 (1976); 5 Arthur L. Corbin, Cor-bin on Contracts § 24.20 (Rev. ed. 2002) (“When the principal purpose of the parties becomes clear, further interpretation should be guided thereby”); 1 Witkin, Summary of Cal. Law Contracts § 695 (9th Ed.1987). Contract terminology cannot be found ambiguous in the abstract. Avemco Ins. Co. v. Davenport, 140 F.3d 839, 843 (9th Cir.1998). As the Federal Circuit has explained: “[T]he language of a contract must be given that meaning that would be derived from the contract by a reasonably intelligent person acquainted with the contemporaneous circumstances. ” Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 351 F.2d 972, 975 (Ct.Cl.1965). Thus, to interpret disputed contract terms, “the context and intention [of the contracting parties] are more meaningful than the dictionary definition.” Rice v. United States, 192 Ct.Cl. 903, 428 F.2d 1311, 1314 (Ct.Cl.1970); see also Western States, 26 Cl.Ct. at 825; Corman v. United States, 26 Cl.Ct. 1011, 1015 (1992).... Before an interpreting court can conclusively declare a contract ambiguous or unambiguous, it must consult the context in which the parties exchanged promises.... That context may well reveal that the terms of the contract are not, and never were, clear on their face. On the other hand, that context may well reveal that contract terms are, and have consistently been, unambiguous. Metric Constructors, 169 F.3d at 752 (emphasis added); see also City of Tacoma v. United States, 38 Fed.Cl. 582, 589 (1997) (finding that a court may use extrinsic evidence for the limited purpose of explaining the circumstances affecting a contract by shedding light on the parties’ objective intent); Restatement (Second) of Contracts § 202(1) (1981) (“Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.”). Here, the “context in which the parties exchanged promises” was in settlement of the pending patent infringement litigation and the Court must adjudge the intent of the parties, and the reasonableness of any contractual interpretation, with that context in mind. (3) Mutual Assent/Meeting of the Minds Closely related to the concept of intent in contract interpretation is the principle of mutual assent as respects contract formation. Under this principle, “[i]n order for a normal settlement to be effective, it must comply with the normal rules of contract law, and there must be a ‘meeting of the minds’ as to the terms of the agreement.” Said v. Virginia Commonwealth Univ., 130 F.R.D. 60, 63 (E.D.Va.1990); see also Weddington Productions, Inc. v. Flick, 60 Cal.App.4th 793, 810-12, 71 Cal.Rptr.2d 265 (1998). A meeting of the minds requires a manifestation of mutual assent. See Rest. (Second) of Contracts §§ 17-19, 17 comment c (1981). Assent is not mutual, unless the parties intend to agree upon the same thing in the same sense. Weddington, 60 Cal.App.4th at 810-11, 71 Cal.Rptr.2d 265. Although mutual assent to the contract terms is crucial to the formation of the contract, in evaluating intent, it is the outward expression of intent that controls, rather than a secret, unexpressed intention. Id.; Wells, 229 Va. at 78, 326 S.E.2d 672. Therefore, in determining whether the parties mutually assented to the settlement terms, the focus is again on their objectively manifested intentions, Moore, 936 F.2d at 162; Weddington, 60 Cal.App.4th at 811, 71 Cal.Rptr.2d 265 (“The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestation of consent would lead a reasonable person to believe”). Again, the clearest manifestation of intent is the plain language of the agreement. The Restatement (Second) of Contracts is also a proper source for common law principles of contract formation. Gamewell, 715 F.2d at 115. The Restatement treats the issue of mutual assent thusly: § 20 Effect of Misunderstanding (1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and (a) neither party knows or has reason to know the meaning attached by the other; or (b) each party knows or each party has reason to know the meaning attached by the other. (2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if (a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or (b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party. Rest. (Second) of Contracts § 20. “A contract should be held nonexistent under this Section only when the misunderstanding goes to conflicting and irreconcilable meanings of a material term that could have either but not both meanings.” Id. comment d (emphasis added). And, in that respect, each meaning must have a reasonable basis in the contractual language for, “ ‘[hjaving second thoughts about the results of a valid settlement agreement does not justify setting aside an otherwise valid agreement.’ ” Hensley, 277 F.3d at 540 (quoting Young v. FDIC, 103 F.3d 1180, 1195 (4th Cir.1997)). A court need not be swayed by, or meticulously probe on its own initiative, a conclu-sory declaration that a party (at least one who was represented by counsel) believed that the basis for a settlement agreement was something other than that recited in the agreement itself.. Korangy v. Commissioner, 893 F.2d 69 (4th Cir.1990); Consolidated Gas Supply Corp. v. F.E.R.C., 745 F.2d 281, 283-84 (4th Cir.1984) (“It is, of course, elementary that an unambiguous document controls, unaffected by contentions of one of the parties that he, she or it meant something else”), cert. denied, 472 U.S. 1008, 105 S.Ct. 2702, 86 L.Ed.2d 718 (1985). Here, the License Agreements and their associated royalties are, of course, material terms in the MOU. Each party acknowledges as much by asserting that, if its own interpretation of these provisions is not controlling, there is no settlement because there was no meeting of the minds. Thus, if each party to the MOU had a different, albeit reasonable, understanding of the royalty provisions at the time they executed the MOU, and neither party knew, or had reason to know, of the other’s understanding, there was no mutual assent, no proper formation, and, therefore, no settlement. In sum, the clearest manifestation of the party’s intent with respect to the MOU is the express terms of the written agreement, interpreted in the context of its purpose — to settle the pending patent infringement litigation. In addition, whether the parties in fact reached a mutual agreement to settle depends, in the first instance, on whether the contract document demonstrates a meeting of the minds on the essential terms of settlement. Where the written agreement is genuinely ambiguous on either point, the Court may resort to extrinsic evidence to resolve the ambiguity. III. The Terms Of The MOU In accordance with the foregoing principles, the first task is to determine whether the MOU, by its terms, unambiguously evidences the intent of the parties. If so, the MOU is singularly dispositive. In that regard, four aspects of the MOU are relevant: (1) the text and structure of the “License Agreements” in MOU Section 1; (2) the product exclusion provision in MOU Subsection l.c; (3) the “Cash Payment” provision in MOU Section 2; and, (4) the “Recitals” and “Dismissal” sections. Although each of these aspects is addressed seriatim, in the end, intent is to be determined from the MOU as a whole “so as to harmonize and give reasonable meaning to all its parts.” Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed.Cir.2003); see also Cal Civ.Code § 1641 (2003) (“The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”); Blecher & Collins, P.C. v. Northwest Airlines, 858 F.Supp. 1442, 1459 (C.D.Cal.1994). A. The MOU “License Agreements” The License Agreements section is separated into three subsections each of which addresses a separate technological area. MOU Subsection l.a addresses DVI Non-Necessary claims, Subsection l.b addresses HDMI, and Subsection l.c addresses DVI Necessary and Non-Necessary claims in the consumer electronics market. Subsection l.a provides: 1.... GNSS seeks, and SIMG agrees to provide the following licenses for GNSS to have the right to: a. Use of SIMG non-necessary claims under the DVI adopters agreement, subject to royalties of $X.XX for integrated receiver IC’s and $Y.YY for discrete receiver IC’s or any transmitter IC’s. (MOU § 1). As Silicon interprets this section, “the right to use” certain patent claims is “subject to royalties.” Thus, says Silicon, Genesis agreed to pay royalties to obtain “the right to use,” without regard for whether it actually uses, the patent claims in making any particular products. Accordingly, says Silicon, the royalty calculation is based on all Genesis integrated receivers IC’s ($X.XX per unit) and discrete receiver IC’s and transmitter IC’s ($Y.YY per unit) sold without regard to whether the units actually infringe any Silicon patent claims. In other words, Genesis is paying for the right to practice patent claims in each product sold, even if Genesis chooses not to exercise that right in making any of those products. As legal authority for the viability of this interpretation, Silicon cites Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 834, 70 S.Ct. 894, 94 L.Ed. 1312 (1950), for the premise that such licenses have been used for years and are perfectly appropriate. Hazeltine was essentially a patent holding company that did not manufacture any products of its own. Instead, the company licensed its hundreds of patents as a package to manufacturers in the radio and television industries. Hazeltine’s licensing packages charged royalties based on a percentage of the licensee’s total sales. Essentially, Ha-zeltine’s licensees paid, on the basis of their total sales, for the privilege to use any patents in Hazeltine’s patent portfolio, irrespective of whether the licensee actually used one, some, or none of those patents. As Silicon points out, the Supreme Court upheld the “right to use” licenses, accompanied, in that decision, by royalties based on total sales, because such licenses are convenient, i.e., they allow the parties to avoid the time-consuming and expensive process of determining whether the licensee’s products practice the patent claims. Although the Automatic Radio decision indicates that Silicon’s interpretation would result in a lawful contract, it has little bearing on whether the MOU, by its own terms, evidences an intent to create such a license. Wholly apart from the substantive impact of the “right to” language, Silicon further explains its interpretation by differentiating the license grant clause from the clause setting forth the royalty base. According to Silicon, the license grant clause in MOU Subsection l.a is: “SIMG agrees to provide the following licenses for GNSS to have the right to ... Use of SIMG non-necessary Claims under the DVI adopters agreement.” The royalty clause, consisting of the language immediately following the comma, reads: “subject to royalties of $X.XX for integrated receiver IC’s and $Y.YY for discrete receiver IC’s or any transmitter IC’s.” Silicon argues that the former clause describes the right conveyed, while the latter clause describes the compensation for that conveyance. As such, the license grant clause in MOU Subsection l.a, for example, makes no mention of Necessary Claims because Genesis already had obtained a license to Necessary Claims when it signed a DVI Adopters Agreement, and there was no need to grant such a license in the MOU. The royalty clause, however, does not distinguish between Necessary and Non-Necessary Claims because it is based on product categories. The only limitations in the royalty clause respect product types — “integrated receiver IC’s,” “discrete receiver IC’s” and “any transmitter IC’s.” Thus, under Silicon’s view, the royalty payable for the right to use Non-Necessary Claims is determined by applying the enumerated royalty rates to sales in each of the enumerated product categories, without regard to whether the products practice any patent claims. Genesis argues that it is impossible to analyze the royalty clause and the license grant clause separately because the license grant enables one to determine which royalties apply to which products. For example, the integrated receiver IC’s in Subsection l.a are subject to $X.XX royalties, while the integrated receiver IC’s in Subsections l.b and l.c are subject to $Y.YY royalties. Without reading the license grants, says Genesis, it is impossible to determine which royalty schedule to apply. This argument lacks merit because each subsection addresses a separate technological area (DVI, HDMI or DVI-CE) and one may differentiate the products on that basis. In further support of its position that the royalty obligations of Subsections l.a, l.b and l.c are linked to actual use of a patent claim listed in the licensing clause, Genesis asserts that the “have the right to” language in the introductory clause of Section 1 has no significance. According to Genesis, all licenses, by nature, confer a right to use and all licensees pay for such a right, but that right does not necessarily inform the scope of the royalty base. Instead, says Genesis, the vast majority of licenses base royalty payments on products that actually infringe the licensed patent claims. Thus, according to Genesis, the “right to” language, without more, is not sufficient to create a license and royalty base of the type described in Automatic Radio. That argument is not compelling as respects the textual analysis of the MOU because, even if Genesis is correct that the vast majority of licenses calculate royalties according to actual infringement, that particular piece of evidence is extrinsic to the MOU. Genesis also points out that the language in the introductory clause does not grammatically cascade into Subsection l.b. It is correct that, if the introductory clause in Section 1, “GNSS seeks, and SIMG agrees to provide the following licenses for GNSS to have the right to,” is combined with the opening text of Subsection l.b “GNSS intends to sign an HDMI Adopters Agreement,” the result makes no sense. Nevertheless, it is a “cardinal principle of contract construction [ ] that a document should be read to give effect to all its provisions and to render them consistent with each other.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Here, it is inescapable that each of Subsections l.a, l.b, and l.c is subject to, and limited by, the introductory clause of Subsection 1, notwithstanding the superficial grammatical discrepancy on which Genesis relies. Moreover, the structure of each subsection makes the reason for the anomaly apparent; the DVI Adopters Agreement referred to in Subsections l.a and l.c had been previously executed, while the HDMI Adopters Agreement was yet to be signed (“GNSS intends to sign ... ”). Following the parenthetical statement of future intent “to sign an HDMI adopters agreement,” Subsection l.b mirrors Subsections l.a and l.c by describing the substance of the license grant and articulating the royalty terms. To read Subsection l.b otherwise would be to assert that “use of SIMG non-necessary claims referred to in the HDMI adopters agreement” is not one of the “licenses” that “GNSS seeks and SIMG agrees to provide” as set forth in the introductory clause. Under that view, MOU Section I.b. would merely set forth the agreed terms of a license, but would not act as an affirmative grant. Common sense and well-worn rules of contract interpretation forbid that result. Genesis also argues that, by virtue of the “right to” text in the introductory clause, “[Genesis] has the option but not the obligation” to use the Non-Necessary Claims. (Defs.’s Reply In Supp. of Mot. Dismiss p. 9). As a result, says Genesis, it has the option of using Silicon’s “non-necessary claims and paying a royalty, or using only the necessary claims without paying a royalty.” (Id.). That would mean that the MOU confers on Genesis an option for free. That argument finds no support in the text of the MOU which contains no mention of an option and does not directly link payment of royalties to the use of a Non-Necessary Claim (which would be the exercise of the option, according to Genesis). And, Genesis does not explain how the text of the MOU supports that result. With respect to the actual MOU language, Genesis argues that the clause, “subject to royalties” modifies the preceding language so that Genesis pays royalties based on the degree to which it uses the licensed claims. For example, as Genesis interprets MOU Subsection l.a, only “use of SIMG non-necessary claims” is “subject to royalties.” Thus, when there is no “use,” there are no royalties. From the foregoing, it is apparent that neither party contests that each license agreement consists essentially of two clauses: the first granting a license and the second fixing royalties for specified products or a product market. They disagree over how the limitations in the former clause relate to the subject matter in the latter clause. In resolving this disagreement, the starting point for the analysis is the text of each subsection within the MOU’s License Agreements. MOU Subsection l.a provides a license for the right to use Non-Necessary Claims under the DVI Adopters Agreement that Genesis previously executed; and Subsection l.b provides a license for the right to use Non-Necessary Claims under the HDMI Adopters Agreement to be executed by Genesis. The royalty clauses of Subsections l.a and l.b specify royalties on certain products made, or to be made, by Genesis: integrated receiver IC’s, discrete receiver IC’s and transmitter IC’s. Except to denote the types of products on which royalties are to be paid, the royalty clauses in Subsections l.a and l.b do not further limit the Genesis products on which royalties are due. The royalty clauses certainly do not confine the obligation to pay royalties only on integrated receiver IC’s, discrete receiver IC’s and any transmitter IC’s that infringe a Non-Necessary Claim. Nor do the royalty provisions expressly link the obligation to pay royalties on those products to the use of the licensed claims in making them. The structure of Subsection l.c is slightly different. Although it too contains a license grant clause and a royalty clause, the license clause confers the right to use both Necessary and Non-Necessary Claims under the DVI Adopters Agreements in a certain market. And, the royalty clause is keyed to products in that certain market — consumer electronics— and is not limited to specifically defined products sold therein. Like the parallel provisions in Subsections l.a and l.b, however, the royalty provision in Subsection l.c is not explicitly linked to the use of the rights conferred by the license grant. Nor is the royalty provision made applicable only to infringing products in the consumer electronics market. The most straightforward reading of each of these provisions thus accords with Silicon’s interpretation of the MOU. Nevertheless, the Genesis interpretation is also plausible because the royalty provision in each subsection is presented as a dependent clause, incapable of standing alone, as a grammatical matter, without also reading the license grant clause. Although there is no explicit link between the enumerated patent claims and the royalty base, and, although there are no express limitations on the royalty base (other than the exclusion for existing licensees in Subsection l.c), the dependent format could be seen as creating the inference that the author had two objectives: (1) to convey that the royalties described are remuneration for the associated license grant; and, (2) to convey that the royalties described are limited to actual use of the patent claims enumerated in the license grant. The Court concludes that, without reference to the remainder of the MOU, the text of Subsections l.a, l.b and l.c, given its plain meaning, is consistent with either party’s interpretation. What remains, then, is to determine whether both interpretations are consistent with, and reasonable in light of, the remainder of the MOU. B. The Subsection l.c Exclusion As further support for its interpretation of Section 1, Silicon argues that, where the parties intended to except certain products from the royalty base, they did so explicitly as in MOU Subsection l.c which provides: 1- SIMG agrees to provide the following licenses for GNSS to have the right to: c. Expand use of SIMG necessary and non-necessary claims under the DYI Adopters agreement for use in the CE market place, subject to royalties (excluding existing SIMG licensees for use of DVI in CE) starting at $Y.YY and adjusting to a floor of $Z.ZZ — adjustment schedule to be determined based upon timing, volume, adoption rate and average selling prices. (MOU Subsection l.c) (emphasis added). Silicon points out that, in MOU Subsection l.c, the parties excluded from the royalty base products that Genesis might sell to certain existing Silicon licensees, but there is no similar express exclusion for products that do not infringe the patent claims enumerated in the various license grant clauses. However, there is no need for such an exclusion if, as Genesis asserts, the royalty base includes only those products that practice the enumerated patent claims. Thus, this argument does not provide support for Silicon’s interpretation of the royalty provision because the argument is entirely predicated on the premise that the royalty base includes all products, irrespective of infringement. C. The “Cash Payment” Section The MOU’s “Cash Payment” Section provides: 2. Cash Payment. SIMG will accept $A.AA Million payment as cash consideration for the settlement. The payment of $A.AA Million will be paid as follows: $B.BB million on date of execution of Definitive Agreement, and the remaining $C.CC million to be paid in equal quarterly installments over 8 quarters commencing on the first day of each calendar quarter, with the first payment to start on January 1, 2003. Royalties pursuant to Section 1(a) above shall not apply until such time as more than DD,DDD,DDD integrated receivers have been shipped subsequent to the date of execution of Definitive Agreement. (MOU § 2). Silicon points out that this provision does not limit the DD,DDD,DDD integrated receivers shipped to only those integrated receivers that practice Non-Necessary claims. However, as Silicon admits, and as Genesis agrees, the integrated receivers in Section 2 are the same integrated receivers that are subject to royalties under MOU Subsection l.a. Thus, if Subsection l.a already limits the royalty base to only those integrated receivers that practice Non-Necessary claims, there would be no need to repeat that limitation in Section 2. Here too, Silicon’s argument respecting Section 2 proceeds from the premise that Silicon’s interpretation of the License Agreements is correct. Therefore, this argument also fails to provide independent support for Silicon’s interpretation of the royalty provision of the License Agreements in the MOU. D. The “Recitals” and “Dismissal” Sections The MOU’s “Recitals” and “Dismissal” sections provide: Recitals Silicon Image has filed actions against Genesis in the U.S. District Court for the Eastern District of Virginia, Case No. 3:01CV266, alleging infringement of U.S. Patent Nos. [’769, ’464]; and The parties wish to terminate the pending litigation and explore a long-term business alliance based on the respective resources of the parties. NOW THEREFORE, in consideration for the mutual covenants and promises set forth herein, the parties agree as follows: 0. Dismissal. Silicon Image shall dismiss, with prejudice, the above-referenced U.S. District Court action, upon execution of the Definitive Agreements and receipt of the payment of $B.BB million as discussed in Section 2 below. (MOU p. 1). Thus, the “pending litigation” is a matter intrinsic to the MOU. And, on that point, the text of the MOU reflects an intent to settle the litigation over which products infringe Silicon’s patents and to explore a long-term business relationship. Also, Silicon agrees to “dismiss, with prejudice,” the pending litigation “in consideration for the mutual covenants and promises set forth [in the MOU].” (MOU p. 1) (emphasis added). In other words, the MOU is purposed on settling the pending patent infringement litigation. Because the dismissal shall be “with prejudice,” the most reasonable and consistent interpretation of the MOU must be one that addresses and resolves the disputes underlying this action. It would be unreasonable and absurd to presume that Silicon, or for that matter, Genesis, agreed to settle and dismiss this action with prejudice while simultaneously leaving unresolved each question underlying the core issues in the case. Yet, the MOU interpretation urged by Genesis would yield precisely that result. For example, under the Genesis interpretation, for each Genesis integrated receiver sold, one would have to determine: (1) whether the receiver practices any Silicon patent claims; and, (2) whether those claims are Necessary or Non-Necessary claims under the DVI Adopters Agreement. These are the very questions at the heart of Silicon’s Second Amended Complaint and Genesis’s Answer. Under Silicon’s interpretation, however, royalties are due on specified products (as to Subsections l.a and l.b) and on all products in a specified market (as to Subsection l.c), without regard to infringement and, therefore, neither of those questions need ever be addressed again. Under that interpretation, a dismissal “with prejudice” would be appropriate and desirable for both parties. Under the Genesis interpretation, in contrast, such a dismissal would preclude Silicon from challenging any Genesis assertion that, because the currently accused products do not infringe, they are not subject to royalties under the MOU’s License Agreements. Under the interpretation of the MOU sponsored by Genesis, Silicon settled this action and agreed to dismiss it with prejudice for $A.AA million ($C.CC million of which is payable over two years), the prospect of receiving royalties on infringing DVI integrated receivers after Genesis had first shipped DD.D million infringing DVI integrated receivers, the prospect of royalties on other infringing products, and a public announcement that Genesis had taken the enumerated licenses. Whether Silicon would ever receive royalties, however, would have to be decided in future litigation, for each new Genesis product, notwithstanding that the settled action was to be tried a month after the MOU was executed. That result is at odds with the “Recitals” section of the MOU in which the parties articulate a desire to put the patent infringement action behind them and to embark on a new business relationship. That new putative relationship is further outlined in MOU Section 5 which provides: The companies will work together to ensure (1) full compliance with DVI and HDMI standards, (2) full interoperability, and (3) the companies will use reasonable efforts to enforce each [party’s] IP against any third party who is infringing unnecessary claims and/or implementing non-compliant DVI and HDMI products. It is the intention of the parties to promote and influence (to the extent allowed by law through sales and marketing efforts, reference designs, press releases, plug fests, etc.) this interoperability in the market place to encourage customers to use SIMG/ GNSS products. The companies will work together to encourage the market to use only “fully compliant” DVI and HDMI implementations. (MOU § 5). Silicon’s interpretation of Section 1 is further supported by the text of Section 3 of the MOU which provides for a press release. The contents of the press release would reflect that: a. GNSS and SIMG have settled their disputes and agree to cooperate, support and promote interoperability of DVI and HDMI specifications and their implementations. b. GNSS has received a license for the right to 1. Use non-necessary claims referred to in the DVI and HDMI adopter’s agreements. 2. Expand use of necessary claims in DVI license agreement to use in the CE market place. c. GNSS has agreed to pay SIMG undisclosed settlement, license fee and running royalties. Here too, the MOU confirms the parties’ intent to settle the litigation, to cooperate and, inter alia, for Genesis to pay “running royalties” to Silicon. Under the interpretation of the royalty provision urged by Genesis, Silicon would receive no royalties because, in Genesis’ view, none of its products infringe any of Silicon’s Patents. (Evid. Hearing Tr. 243, 277, 614-15 (March 7-8, 2003)) (“Tr-”). And, more importantly, the stated intent to settle the disputes over patent infringement would not be achieved. Given the text of the MOU, the settlement context in which the parties negotiated the MOU, the goals expressed in the Recitals, and considering Sections 3 and 5 of the MOU, an interpretation of the MOU that would doom the parties to protracted disputes over patent infringement cannot stand. Moreover, that result is at odds with reason and logic. As Genesis asserted during the evidentiary hearing, (Tr. 682), and as previously recognized herein, a contract must receive an interpretation that is reasonable. Providence Square, 211 F.3d at 852 (“To the extent we are to rely upon any principle of contract construction, we believe the more applicable principle is that ‘the construction [of a contract] adopted should be reasonable, and absurd results are to be avoided.’ ”) (quoting Transit Cas. Co. v. Hartman’s, Inc., 218 Va. 703, 239 S.E.2d 894 (1978)); Gould, 935 F.2d at 1274 (“ ‘an interpretation which gives a reasonable meaning to all of [the contract’s] parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result.’ ”) (quoting Arizona v. United States, 216 Ct.Cl. 221, 575 F.2d 855, 863 (1978)); Safeco Ins. Co. v. Robert S., 26 Cal.4th 758, 110 Cal.Rptr.2d 844, 28 P.3d 889 (2001) (“Contracts are to be interpreted in a manner that makes them reasonable and capable of being carried into effect, and that is consistent with the parties intent.”) (citing Cal. Civ.Code § 1643). Silicon's interpretation is eminently reasonable given the structure, text and explicit purpose of the MOU and the context in which it was negotiated. For the foregoing reasons, the Court accepts Silicon’s interpretation as an accurate reflection of the terms to which both parties agreed. The plain language of Section 1 of the MOU viewed in the context of its execution and purpose as demonstrated by the other pertinent text of the MOU, admits of no other reasonable interpretation. Nevertheless, it is appropriate to examine the extrinsic evidence surrounding the MOU’s formation to determine whether there was indeed a meeting of the minds with respect to Silicon’s interpretation. In addition, because this action is destined to go further, and lest there be any doubt, it is preferable to reach a conclusion with respect to the disputed facts addressed in the evidentiary hearing and to determine which, if either, interpretation finds support in the extrinsic evidence. IV. Findings From The Extrinsic Evidence The ensuing sections set forth the Court’s findings from the evidence presented at the evidentiary hearing and in the exhibits attached to the supplemental briefings. This evidence informs the context in which the parties negotiated the MOU, each party’s purpose when forming the MOU, and each party’s intent at the time the parties executed the MOU. The Court is also mindful that the acts, conduct and statements of the parties after executing the MOU, but before any controversy arose with respect to the MOU’s terms, considered in light of the surrounding circumstances, may have significant probative value in uncovering the parties’ original intent. U.S. Cellular., 281 F.3d at 936; Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205 (9th Cir.1998); Cleary v. News Corp., 30 F.3d 1255 (9th Cir.1994); Saul Subsidiary II Ltd. Pshp. v. Barram, 189 F.3d 1324 (Fed.Cir.1999); Alvin Ltd. v. United States Postal Svc., 816 F.2d 1562, 1566 (Fed.Cir.1987); Arizona, 575 F.2d at 863. A. Backdrop Of The Dinner Meeting Three general background facts help to understand the parties’ actions with rfe-spect to the settlement negotiations that began on December 17, 2002. Those facts also are pertinent to ascertaining whether there was a meeting of the minds on December 18, 2002 and why the instant dispute has arisen. First, the parties do not directly compete against one another in either the DVI or HDMI product markets. With respect to the DVI products at issue in this action, Genesis produces integrated receiver products while Silicon produces both transmitters and discrete receivers, but not integrated receivers. (Tr. 196, 245, 249, 253). Genesis produces no HDMI products at this time. Although, Silicon and Genesis had competed in the market for DVI integrated receivers before the outset of this litigation, Silicon no longer produces DVI integrated receivers because, Silico