see good morning writers may please the court this case presents a unique set of circumstances that test the very limits of what a district courts are probable properly state case pending c p m review  appears that section eighteen of the case law heavily favors a stay but in this case the facts and the law compel a different result this is a six year old case this isn't the first time there's been a stay for c interactive brokers in order to avoid a stop while enjoying the benefits of a stay i apologize sometimes i see a train station and that you are police your trade station and interactive brokers and i meant to say both of them  all defendants need to do your honor i actually think that the rules permit them to do what they did but i think that you know we're in this world right now where everyone thinks stay should be almost automatic when a see v m is pending i think the difference here is and the problem here is that when you sit back and watch a c p m occur and you have the ability to join in it or to file your own c b s it's unfair under the third factor the third pr and question here is we have a discretionary decision did that should that not have been permitted your honor i think that the judge i mean you know i got out in the briefing there's a big question of and balance the equities extraordinary complexities of this case your honor i would say that the judge just plain got it wrong and i i think there's an element here of the judge and  i frankly think this is throughout the land right now the judges think they kind of have to stay when you look at the president when you look at the cases that have come up to this court i want to say that i've i there's one of published opinion where a stay was affirmed but mostly the states have been reversed and it's interesting after after she had to the stay we asked for rehearing on submissions we said you know let us at least finish the few depositions that have already been schedule and thankfully she let us do that but during that hearing and this is on page thirty two of our blue brief and it's in it's eight two nine three zero three she says and she's a one of these patent pilot program judges judge virginia kendall she said it's enough to make me not want to be this case alone is enough to make me not want to be a patent pilot program judge because it doesn't move it strategically stop constantly and it's frustrating i agree that the case the chances of the case go away completely are not realistic and so i'm going to grant part of the motion to reconsider i think judge is there hasn't been a case that i know of where a court where this court has said hey you know what you should have stayed and i think this is the case i think when you look at the considerations i think that the district judge is is normally in the best position but i think this judge failed to consider all the factors i think you know she stayed the first the first other seat she stayed based on the first  different order why is that relevant to incineration this case i think it goes to the third factor very strongly i think that kind of what i said when i open that sitting back and kind of watching this all go along and not participating in the first same company no they're separate campers have separate interests well i don't know if they have separate interests i mean these patents have a long have a long history you know our client is a company in the business competing with these defendants judge lorries but on panels that have dealt with at least two of these patents before in fact this patent that some of these patents have come up to and it appealed to this court that's the first day we talk about when they were that putting so much reliance on the polygamy injunction when you look at the whole history of the case i mean if my client would have gone back in twenty ten almost seven years ago would have brought these cases that that this case would linger this long the decision might have been different injunction and putting so much weight on that factor i think led to her lead to the error here i think that you know there's many many reasons why why a client wouldn't i mean this case two of these patents the three or four that one patent eligible are due to be argued in this court i assume that the you know the schedule will come out soon but in any case these are patent these are just you know that looking at this in isolation and say well they didn't move  together and it seemed to me could great weight on the complexity the number of patents and the number of claims and the advantages to the court if nothing else to have a determination by experts that your honor i understand that but again i and we've laid out our race i think the way that she looked at the factors you know you don't know what a judge is thinking but it just analyzed the factors just was an error i mean for two i don't think congress intended to allow a party say there were a string of defendants can each of all wait i mean if there's five defendants for the first one t only questions of one on one of the c b s and the c b s will only be one a while so the fact that this court is about to rule on one hundred one for two of the patents i think should have been considered much more strong credit for gamesmanship to the other side she also found on page thirteen of her opinion quote while it is true that the nature of this litigation has been stop and go both parties have been responsible for the near cost an i'm not mistaken about twenty three six forty four of the the bottom line here but to go through the thirteen and a half page opinion that judge kendall did there is no issue of law and so it becomes one of her exercising her discretion should look at this case and these parties for multiple years this was the change one would think supports the description in the way she exercised it does rhyme but i don't know whether it's right for us to put that into the record having happened have to the moment in time that she analysis has been supported by subsequent events and the other thing it tries comforting her personal she sits in the tree perhaps perhaps it also l submit that the first to lay was the engineering of the rule fifty four b final judgment an appeal by trading technologies is first to having one appeal at the end of the case and in terms stage of the case i think it's very interesting this judge kendall help them to their word on the stage of the case and even if you look at their own briefing i think they project that it would have been a least another two years the other thing that i think i thousand and fifteen in the c p g case in two thousand and sixteen there were no stays for c v s or otherwise in those cases and yet they took ten and eleven years before other judges to  case judge kendall used her discretion and her opinion is remarkably thorough and frankly addresses i think pretty much every argument if not every fact that the trading technologies brief addresses in arguing for an abuse of discretion and while they then argue for the de novo review they give no explanation at all saying why there should be  novo review the statute says you can have did you know of a review for consistency in law but they give no explanation as to how she was applied the law she followed the law she followed the statute state cases and that became a magnet for patent owners filers because they knew their case would be stayed that would allow the federal circuit to correct that situation the dean of the review is really meant to in have been initiated received they're now going to trial i suppose before three administrative law judges and peter on october fifteen thanks your honor thank you for give me some extra time first but that first delay being our fault you have to understand they went to the judge and they said we want to brief invalidity this report anything happened before there was discovery and they to judge kind of we want to brief invalidity on some of your patents and they want to invalidate some of our items we felt we had to bring it to the score i don't think the record supports that we asked for a stay during any of that time but you that not much happened in that case wall the wall of the appeal was pending and we won it was reversed and we won the other thing is i didn't touch much on the simple fixation factor aleve that's in our briefs but you know this point or not neither the other point i want to make is you asked where the c b s are you know when they with this case came back down from appeal  imagine if this isn't gamesmanship at tactics i'd that that extra year probably and i don't know what the position of the court would be if some of the c p s were done in the world the a few tail and left but you know that that projects this this delay out even further again we are in our third state i just cannot believe that this is what congress intended i believe they put the four factor test in the safeguard