where i begin i want to take a moment to welcome some members of the air force judge advocate general's corps major jeff laura who is here with them used to be an intern for me or xterm i never know the difference we call them court this morning for aren't new cases as a matter of fact three of which are patent cases and one of which is an appeal from the court of federal claims the one issue that i want to address and i'd like  to address when they when they stand up respectively is that in many of these cases there are a lot of confidential markings in the briefs and so the extent that you are concerned about something we might say we're not going to go through and necessarily make sure that we are censoring ourself in every place so if there is something particular that  concerned about i think you need to let us know that when we have that many confidential markings in cases and i'm not they're not all the same but we when we have that many it's almost impossible to ferret out the issues without stepping on some of those toes so the first case before the court is all biotech it is an appeal from the patent trial an appeal board with it is case number one seven one four eight seven i understand mr countrymen that you want three minutes for rebuttal it's ok you may be you know they may or may not have an action for breach of contract i think we disagree about that and i actually don't think we think the contract walks us but even assuming if we did happen with still walk so if we were to file in the end of tomorrow they would still be able to relationship based on the may twenty year level contract i assume you would agree under those circumstances there would be no standing i don't your honor actually because i think this is unique because because of the a stop something for lack of standing it's without prejudice the person can always come back when the injury is more in minutes but here this is our only shot to appeal hearing our and if we don't and if we don't have that shot we've got right to terminate the contract leaving aside what else they say how would that change things i think it would we would still have standing because it would go back to your father would have a stronger case though certainly i think it would i mean it was again maybe twenty one would think were you know saying they be two months away from that the judge is going to rule on the summary judgment issue probably before too long because he's context is different because it didn't have to have standing to file the p j r so there was no tasking of your standing at that point in time and now you're in a different circumstance where if we say you don't have standing to appeal then there is this bar on this decision that would last forever presumably i think that's right around in the statute gives us a right to file p g r without kind of the you know having to show the typical article three things and so am nowhere in this position where we're not allowed to appeal we have the stoppel we can't get rid of them we've lost our only chance and that's very different than the district court you're going to follow the clerk for judgment and i just report where when they say you don't have right you didn't submit enough data with respect to one of the testings up front and then when you really get some it dated that they could rely on it wasn't until you reply those are pretty discretionary decisions how do we say that the their discretion so a couple things i think with respect to both types of testing there was a key argument or key fact the p tap didn't address so with respect to the h p l c testing we put in with the petition the control experiment where the doubt the reliability of the testing but at a minimum that was critical evidence showing how the testing was conducted and showing that it did actually work for its intended purpose in the piece have been addressed and so at a minimum i think the court would need to of discretion of yeah ok so just to get back for a moment just to this standing issue is there any merit to the court considering waiting meaning this court waiting until the district that's certainly an option for the court and in getting back to our earlier exchange you know we think they're standing regardless but at a minimum certainly we prefer to wait out of and to dismiss it just and i can only speak for myself but it seems to me be it be a lot different case on the standing issue if say the court will rule that they don't that paragon does not have the right to terminate the contract that may or may not be the case i'm not saying what the merits on that issue but it would have an impact on the standing question right i mean certainly we think they're standing either way but yes i agree i mean if the court thinks that would be worthwhile to weigh the th i'd do my wife why can't we could do your client could do that today in court if we stipulate that we're not going to terminate then we could end up in exactly the same position that they gave to the f d a yes so they relied on those methods is that true it is true that they relied on their data to provide to the f d a but remember two very important differen but it doesn't meet the protocol for purity and in fact this is a this is we i love to talk about the judicial stop because i actually think it works directly against them but it is important to remember we're not saying th work you can do these tests correctly the problem is they have to prove that they did this task correctly they did all of these tests in house it's an example would be a bathroom scale  it's fair to say that they were really surprised by the position that you chop in the p j r no no in the board again let's let's focus what's before the court is whether the board made it mistake the board's civically addressed this point remember the burdens all around them is the patent owner does nothing they still have to prove their prime official case and they said you didn't do that but what i'm saying is that when then you look to see whether or not it was an to exercise discretion goes hand in hand with the notion that that discretion can be abused right right that the problem on on all of these start stems from the position in fact i thought it was startling in their opening group that they say we know that the institution decision was wrong and yet we let it go until the end they even recognize that they had an opportunity to put in supplemental eviden geraghty what testing methods did you use to make sure that that you properly had the invention again we had no problem with the test that it's possible to do the test correctly yes we sawiris declaration this first exploration even though he didn't qualify as an expert he makes a big point that validation is important if you don't validate it it doesn't count the only thing they say about validation has what is your response to the question that i asked mr countryman about a waiting or a suspension of proceedings waiting to see what the district court in brooklyn does on this track case because that would i think we can agree without saying which way that gulf effect when one looks possibly affect how one looks at standish i think it could and there's still assumptions that you built them but it could affect that i guess my concern would be that we're to be putting them on the scale at that point right because they had an obligation to establish jurisdiction at the time they filed if if that is the only way they have jurisdiction essentially that concede that they didn't at the time so i do while i suspect that the court has the discretion to do that i'd i'm not even sure about that but it certainly seems like the court would be act altera from selling its product that it manufactures to anybody else did their exclusivity provision was my understanding of the contract so  so they were still exclusively provisions but i didn't i didn't necessarily maybe i'm not reading it correctly that i don't see anything in there there is exclusivities so you'll sell you have these schools of contract with us erica but you're saying the provisions of the contract operate to bar altera from selling to anyone else besides paragon leaving aside a possible pet infringement  their product a product that they had been distributing and and think the details of which they gave to you how could you possibly be listed as the sole inventors because let me unpack that question a little bit i do actually think the two purity at a certain point they have argued very very clearly they don't even think a problem exists much less that we solved it so so one of the things an inventor has to do is have a conception and keep refrigerated on that off no there are lots of reasons why you might want to keep it refrigerator however i will point out this is another glaring inconsistency throughout their case one of the problems with a lot of their data is they were lying on samples that were never refrigerated so their position throughout has been from the petition all the way through the oral argument or it has been temperature doesn't matter right so if temperature doesn't matter there's no guarantee that any of the handling it on the product has been correct so so one of the whole point there are cases essentially an inherent see case that you will necessarily and always have this purity level and yet they've simultaneously told you that there's absolutely no reason in there why you have to handle it that way so the patent says is we've shown you that if you keep the call you can maintain the security level they've told you that temperatures absolutely not even an issue and that's why you can rely on some of their test data that's why they don't have to tell you whether their standard was properly handled they want you to give them both both sides of the assumption and that's just not  out so yes that the method claim but our prior products practice that method because all the method was was the product plus chiral purity which the data showed plus refrigeration which are probably things level that meaning the product she sold necessarily resulted in you your customers practicing a math correction or you practicing the math the during testing correct so you would be on the hook in your view i guess for say contributory infringement or induced infringement rotation data was an institution and it was only after paragon argued against it contrary to what they told the f d a the board rejected it and so here they should have been prevented from doing that and had they done that more necessarily but at