a threshold issue that the court does not have discretion to issue a pulmonary injunction and say they will decide you know venue later at this decision there will almost certainly be objections to the district court judge whichever side you know wins or loses if i had to ballpark it i would say were i we're six months you know down the road from which will put us you know well past a year of when we filed our venue motion we think that this is a slam dunk on the venue it is things were happening extremely fast by the way i mean just to be clear the the new motion to dismiss on venue was filed on five twenty six that was four days after t c heartened the contingent motion on the motion to dismiss saying hey if the orderly comes on our favor you know we believe we're out of here was filed on april twenty five two thousand and seventeen so i mean we were not letting any grass grow with respect to our filings the court did find that our motion was moot in light of a revised complaint that complaints however had nothing to do with venue itches it was a replevy you know substantively but did not affect any venue issues that you know were before the court d now the court has reopened discovery and the issue that discovery was reopened on was finding by the court the discovery is incomplete because tele brands has not produced all relevant discovery related to its placement of products in retail stores including the engagement of agents for product placement purposes and so where this apparently is going in part of our you know discovery was certainly guided by the judge still strapped opinion that this court subsequently reversed with respect to regular established place of business the theory that we now seem to be dealing with is one that to the extent the t talk to retailers like kroger's and wal mart are walgreens and talk about store placement where you know we want the top shelf or the bottom shelf or the end cap or whatever it is that that might be a regular an place of business in texas so my point your honor is that discovery has been searching does not seem to be anywhere close to an end  therefore would ask that the court would address the venue issue as a directional issue with respect to non infringement of the patents the easy einstein product is truly different than the battle b product it has a plug it has a valve that does the work of holding the plug on to the tube that's completely unlike any other product in the market and it is also that valve which closes and seals when the plug is dislodged from the two  now the question that we are asked is for an elastic fastener is it has to clamp our respective one of the plurality of containers to respective to and it has to automatically seal it up on detachment of the container from its respective to in deciding those issues against us the district court credited some experiments that were done by an expert on the other side that in the district courts words showed that  sometimes fall off plug if you remove the outer p v c cap which is the focus of the inference we are going here and uncap blooms frequently leak out of water at a faster rate than the balloons with ca on the other side the the problem with this it doesn't matter that the p v c cap on the outside of the plug may contribute to less leak which of course it does i mean it's there to hold the plug in place it keeps the plug relative to the balloon neck so that it doesn't move up or down moves up or down because the p v c cap isn't on there  doesn't always not work but sometimes it doesn't work that's why the p v c cap is there that does not mean that the p v c cap which is holding the plug and the valve in place is either clamping plug and the glue hypothetically were necessary to hold it in place in the next and if you take out the glue it's going to turn sideways and it's going to leak and it's not going to work we're e rather than that in the middle that that's exactly correct your honor and in fact that's what the experiments show well that's what i'm trying to find out where is it clear that balloon and the plug that's what the experts set now the the other end so that goes to the automatically sealing appointed attachment and the other side would like to ignore the words upon correct that that's correct and that's because it holds the plug in a perpendicular direction to the neck of the balloon but that does not make it an elastic faster that automatically seals up on detachment doing anything different after detachment that it was doing before detachment is holding it perpendicular and that is not enough under the claims to meet that point limitation now the the other claim i'm patient is going to cover very fast is clamping the court found was that there was a clamping force reach that conclusion based on the expert testimony that it was harder to pull the plugs off a clamping force it says it has to clamp clamp means you have to hold so invision a situation where you had a very weak rubber band so you stick it on the tube and it it go again it slides off again well it doesn't work it's not clamped it's applying some impressive force but it's not clamping the patent seven for nine patent column to forty nine through fifty of containers eighteen may be clamped for example attached fastened held clinch secured etc every one of those words is the concept of you gotta hold it there are a lot of cases where people do trials and it goes up and it was the wrong venue and you wipe it out there's one indication out of the ninth circuit case which we cite in our brief which is where the ninth circuit said that it was a that the court should have reached there it was no harm no foul because the ninth circuit went on to find that yes venue was proper that is the case law we have as you can imagine this does not come up very often but if the court doesn't have a venue this purpose i don't think it makes a bit of difference and i would refer you know the court the illinois central case a supreme court venue is not a mere nicety it's a vital protection the defendants are entitled to rely  invalid is awfully close to the same standard for vulnerability in a p r context and we certainly believe that the key tabs should be taken into a fact  particularly here were doctored cruder with us as made a series of admissions which are in our brief which i think are extremely damaging for plaintiff's position with respect to the invalidity and on is i think a case of serial infringement but they've now taken the additional step of adding this past exposure that was much talked about which i'll address in a second first with respect to venue our position is that as this court said and more versus standard register if sliding scale and you're going to move it back towards the beginning of the case but i don't think so so i think the key to venue your honour's venue venue is privilege and if it if they didn't object to venue at the outset it's way vocal so there's an the answer to that we don't know what happened that's right and the reason i don't do that oh sorry i'm sorry we don't know what's going to happen there and we also don't know when the judge is going to decide this and it seems to me that there are some sort of and the court was prepared to make a decision but it was discovered as mr underhill pointed out he was very honest about it the telegrams the court found telegrams misstated some facts during the initial value discovery so the court reopened venue discovery in november so why we're here is it's tele brands he's cost us i mean that's what the court said so that's the first issue the second issue we do sort of know when a venue decision will come out because the parties have agreed on a briefing schedule that i believe begins the beginning of february oral arguments so there is a reasonable estimation that it's going to come out well before trial and well before much else happens in this case but i think the key point here is that the district court hasn't had a chance to make a decision on venue because they've just raised it and and part of the reason it's taken so long is telling brands own actions that cause the court to reopen the whole issue had they not had to reopen it we would be sitting here with a venue decision so soon we can d all it's a privilege it's a privilege of the plaintiff and i understand that this case came out in the middle but there's still no facts before this court there's a question of law before this court with respect to a district court's factual decision on venue  makes it not infringing any more of the two and two and seven four nine patents and i kind of thought about this last night and i thought about the piston and so you had thought about cool i thought about it before and i just thought well how how how what other examples are there of this there are millions of examples obviously i've been thinking about it for three years now i think something like that but what other examples of this are there in the world and a piston is a good example you have a piston cylinder and you've got a gasket and we all have cars and if your car  around infringement by saying i'm going to take that gasket and make another smaller gasket inside of that and all the sudden my gasket doesn't infringe it's the same thing that this court looked at in sun tiger sun tigers a great case it was the blue blocker case with the sunglasses where this court course and now as long as you infringe on the plate as long as the product infringes on the patent it's infringing a little infringements enough and i don't even think we have a little infringement here so what mr underhill said is that there is no evidence that it provides any sealing function or any clamping function and i would disagree that the show a lot of evidence and the court chose to believe having seen both experts and person having seen dr corder once in dr cameron in person and having seen videos from both of them the court chose to say well doctor could or which is tes provided a video of himself conducting the tests dr cameron made a theoretical argument about stress which to me is an opposite has really nothing to do with what the spacer does which is really nothing yes it does it does it performs healing yes but i heard mr underhill say earlier then so so in our view it has an outer lastic bring it stealing the balloon upon detachment and the outer lastic ring is clamping providing a clamping it's measured which their expert didn't measure at all so there's only one piece of evidence at all anywhere in the entire case about whether or not it was clamped and that came from us and the court chose in its discretion to believe that it's your hon we feel again that this is that the third time that twice a day are fairly efficient there but the third time that we've been before this court and the appeal the preliminary injunction the last time we were here  fifteen minutes ago but in that case the court found that we would likely succeed on the merits and they had presented a substantial question of liberty and they found the same thing here and we expect fully expect ultimately a jury trial whether that's  discovery your honor at the beginning of the case when they first raised this motion this motion to transfer to the courts that are right i'm going to grant plaintiffs some we have to take some venue discovery during the course of that discovery we concluded it and amended our complaint and we discovered during the course of that discovery the telegrams hadn't disclosed everything they were supposed to disclose that's the finding the court made at a hearing on this motion and so the court said i'm going to reopen discovery on november twenty eighth two thousand and seventeen so there should have been a decision that day which is before this day but literally the judge said in his opinion because tele brands didn't disclose everything in their in discovery process i'm going to reopen discovery and so we have seven more depositions to take and a whole bunch more people that are involved in the venue inquiry that we still have to look into and it's not plaintiff who has delayed this venue decision its defendant so they from there not infringement we do their part of our to look different i mean i don't know maybe when not in this case or yeah we don't have any in this case that's in tennis too so that and that's to make the jury verdicts the case extraordinary we don't i believe we don't have any pending sanctions motions in the tennis for two years but that we don't your honor so it's that's the other the other matter  in conclusion your honour's and again i don't think it's a very good time because it's their appeal and i may be those points for not using all of your time but we would ask that this court find that the district court did not abuse its discretion affirm its ruling we had hundreds of dr ques not exaggeration hundreds and we produced you know lots of documents what the court found that we should have produced were documents that relates discounts granted for temporary store placement and favorable positions that's what telegrams did not produce in the earlier discovery now we have  and so we thought we were going extremely broad but apparently we didn't go broad enough because we didn't just we didn't produce these documents that relate to you know conversations we have retailers about store placement it does not occur to us your honor that that that is in any way appears to be the theory as i understand it with respect to the scientific evidence we're not quarreling with the judge picked his evidence over ours we're saying his evidence doesn't show anything ok fine they leak and he says the water leaks around the room ok what does that have to do with whether or not it's sealed upon detachment that's key on the patch very briefly on my glue example that is sealing under that hypothetical we don't have who by the way but hypothetically but is it sealing upon detachment no it's not doing a thing upon detachment it's sealing the plug to the balloon and then when it drops off the valve closes and you're good to go i mean similar you know example would be what if you had a problem with the then this of the rubber in the network and so therefore you were getting tears and you're getting water all over the place and you fix it because you make the next sturdier and you add more material well