judgment that wouldn't have been needed at all but the rd circuit where this case originates follows the st restatement of judgments from nine hundred and forty two and that rule as the th circuit explained in the hicks case forces a losing litigant to take an appeal it knows it will lose on the basis of one alternative grounds now the inefficiency of requiring an appeal like this one was one of the reasons that the american law institute did away with that rule in the nd restatement but the rd circuit has stuck with it that means that the district court's findings of lack of utility and written description which we believe are legally erroneous are in the rd circuit potentially considered material to the judgment even though the judgment is supported by the independent obviousness finding well we are content to let the obvious  it right that the only asserted concrete potential harm from the district court decision not now that you are conceding one of three i in light of your acceptance of the one of three invalidity wouldn't the following statement from the rd circuit decision and in re combustion engineering eliminate the collateral i rule on ground x i also rule on ground why are you aware of cases in which a court has treated and alternative holding when phrased in the form of if i didn't decide x i would decide y which i think is the form of the language at issue here you're absolutely right just trying to that is the form that was used we haven't encountered another case like then maybe that would mean maybe that would solve the problem as well because then there would be nothing to be no decision to be precluded but in that case we think this court should say that it read the opinion that way in order to give the district court and the parties guidance in the subsequent case because as holdings and that's that's why we're here your honor because we we didn't want to get to a situation where if we didn't appeal in this case and then went through the nd case and were found has been precluded that this court might have said well you should've in the subsequent decision can be sufficient to create a case or controversy i mean i don't think we need to advocate for that brought a proposition i mean we clearly have standing to appeal the judgment to of our patents have been invalidate d so let me ask you this do you have cases to support the idea that a party that lost can seek summary of permanence on the ground on which at last when both parties there's no dispute between the parties as the background is there a case or controversy in that circumstance i think there is for the same reasons as in conn in san francisco patrol i mean we're trying to be candid with the court as to what we think the right answer is i mean we could just as easily have have written briefs that remain silent and said please reverse on you on the obvious and said please reverse on utility and rent written description and it would have been exactly the same posture as con and and separate this go patrol we thought that might not have been useful to the court so we went the further step said because we're doing this here's what we think the right answer is which is the same answer as in conn and san francisco patrol which is to affirm on the uncontested grounds leave the other two on a dry yes and make clear that it should preclusion doesn't apply to those other two but i think the fact that we in briefing the bases it makes clear that the correct outcome here is an affirmative on the uncontested ground but i don't think that changes that changes the standing because there is a case or controversy among the parties as to as to the that we shouldn't do a summary affirm it's there i'm not sure that i haven't encountered a case like that obviously we wouldn't have appealed in that circumstance and that is exactly what would have happened had this case come out of the th circuit or that or any other well i think you understand think that would be the right thing to do under under under all all of the cases we've been talking about i don't think would be a jurisdictional problem with doing but where according to why why wouldn't the right thing to be done in that situation be this is where if i could just follow up if the import of what i thought might have been judge trying to point in this question is correct that there would be no case or controversy under my hypothetical then what if i extended out the hypothetical to be again what if the district court opinion stopped at page fifty nine dollars spoke only about one of three but the you miss believed that there were alternative holdings that also invalidated the patents on other grounds but there's no earthly reason but a way of reading that district court opinion as actually having made such for clues to the facts and then once again affirm on the basis of the of the uncontested primaries ground i think that would be the right way to do it but but i recognize these hypotheticals quickly become very  difficult because and not least because there isn't a lot of guidance out there we couldn't find very many cases that arise in this area this isn't a common occurrence it only happens in cases that come out of regional circuits that follow the st three statements and i understand i understand  i'm just getting back to judge tronics initial question of the morning which was what is your asserted harm here and as i understand it it's the possibility of issue preclusion and  i don't i didn't hear you identify another his there was well i think the harm for standing purposes to invoke the jurisdiction of the court is the fact that our patents have been adjudged to be invalid and that if you've conceded on one ground in as here conceding that the patent was obvious in that scenario there would be no jurisdiction for the court to hear the appeal and you can imagine a similar situation and why an appellant might try to do something like this because there are so i can i just connect can i just double check something and i have no idea if this matters in the ordinary course the notice of appeal is filed and then some weeks or months later longer contest the decision so in that situation the court has lost a jurisdiction that it originally had right by virtue of the new position of the why do they do not present position is that they may do constitute alternative holdings if i understand the question is the question as to whether or not they are alternative given the way the court phrase and i think there's there's certainly an issue about that i did notice that last year the th circuit in talking about the difference between and presidential alternative holdings cited in a case not they truly are alternative holdings or whether the balance could argue that they're not that's a separate issue that should be presented to the district court the issue of whether or not there are alternative owning and whether or not they have collateral is not and in front of this court that if there's if there's a substantial risk of their being so treated why doesn't that meet a pretty low threshold for article three injury non speculative you know it's not speculative because you just said you're going to seek it because any injury that flows does about it is a result of its own decision not analogous they're there the equitable remedy of baker was being considered but the court said that the injury didn't stem from any equitable concern the injury was a result of the party's own action the judgment was review e the party chose not to review it and it would be no different than if the party had chosen not to appeal at all and that is i connected can i just ask you about the quote that i read from combustion engineering  it your view is that when the issue statement of issues was filed any dispute about when a one on one hundred and twelve became moot in which case why doesn't that rd circuit statement apply a ruling or finding on a moot issue issues become the entire case the comes that once they concede in the the judgment and this is also in the case which the party did once the case is moot the proper action is to dismiss the court should not make a pronouncement and nothing that considered the counterarguments of the nd restatement and rejected them they did so because they favor vishal economy the party should have one bite at the apple that the decisions of a st court should be afforded deference and later action and all of that is perverted by this action here the ballot does not want this court to reach the substantive merits of the district court one  decision so that it can go back down and relive the gate these issues after we've had a full trial that's entirely in contravention of the st circuit pool and to allow a party to so easily make an enron around the decision by filing a pro forma paper that can't be challenged to strip everything from the district horse decision defeats all of the objectives that the court laid out in that you know how xander case if so our particularly with respect to the written description reading this opinion and holding that the claims are invalid for her to comply with the written searching requirement as an alternative grounds for an additional ground for one it's not written that way and honestly you know having looked at a fair number of opinion this is really unique i haven't seen anything written this way usually and you know i find the claims invalid for obvious and in addition i find the claims invalid and written description and utility or you know it's much more this seems to be a contingent i understand they are the that's the question that the district court should consider in the  as i think about and i'm thinking about our jurisdiction about whether this opinion is actually presenting an alternative holding or whether it's a contingent holding on written description and utility if if the court has jurisdiction to hear the appeal we can defend the judgment on on any of the grounds that would support the judgment and i don't like it so i don't think that whether or not it's a contingent ground has implicate the court's jurisdiction because if it's not if it's a contingent rather than an alternative holding and the court does as well then there is no precludes of effect if it is truly an alternative holding there's precludes of effect but the the court the court can for me to rule on it would be to say there is no precludes effect because this is an alternative this is a contingent ruling and so therefore i don't have jurisdiction so that's why i'm asking you these questions and again my question is pretty simple do you have anything else that you would want utility or utility but if the court has jurisdiction regardless of whether or not these grounds are alternative holdings the court can consider them even if they work in the opinion that if this is just been litigated but didn't factor in the opinion the court is still allowed to consider any ground in the record that could support the judgment and here where the parties have conducted  costly trial in a complex litigation fully considering these issues the purposes stated by the gene alexander court would support considering these other grounds and affirming on on each  acknowledge that there are cases that say that a party i mean the court once it has won the ground sufficient to decide the judgment does not have to reach other grounds but there is nothing that says that the court is precluded from doing so and in this scenario the interests of the st statement rule as laid down in the by the rd circuit are better served by the court considering this and affirming on the written description had failed to actually make an expressed challenge in that circumstance to one of the alternative grounds i don't think that the court is required to elevate form over substance if the court how in this kind of situation where a party just fails to appeal on all grounds that the party has abandon its appeal that's also in the make a decision i did by san francisco where they conclude that a party that because of the fact that it's about express way of asking this court to affirm the judgment but in that scenario the court is not required to form over substance and the consequence of the st restatement rule the parties are required to appeal the judgment that is what the court said and they specifically considered the situation the counterargument that this would require parties to raise appeals where they might lose on an alternative basis and they rejected that consideration in favor of the overall judicial economy of affording collateral estoppel a fact to all of all of the grounds that support the judgment in the district  on the credible utility in reading a script from ground zero has not shown that the court committed clear air these are factual determination and the district court relied on the testimony of acts about was own experts testifying that person a they reinvented the testimony and on their reply brief as being about f d a approval but the testimony of the witnesses clearly demonstrates that that is not what they were talking about dr simon and seventy eight pages seven thousand one hundred and fifteen over the page seventy two line eighteen in his response he indicates that he is responding in terms of credible utility i was looking at the claimed invention in the past so there's no support for the idea that the experts were testifying about the requirements for f d a approval as opposed to what the patents required to meet the credible utility standard i think i think that's probably there we now but we're being candid with the court that we think they should wait another day but we certainly have the right to appellate review of those issues at some point which is why we brought this appeal and why we have briefed them in order to make clear that we do not want to give that up and we believe we need to do this in order to preserve our right to do so so that we wouldn't be accused of being collaterally stopped in the nd case the nd point is mr cutting argues that in in order for us to be able to preserve our opportunity to appeal utility and written description we also needed to brief obviousness as well he said no authority for that proposition that in the st statement jurisdiction a party has to load up its appeal brief with extraneous grounds just to preserve the opportunity to preclusion by alternative grounds that it does care about it's already wasteful enough that we have to bring this appeal at all and many regional circuits it wouldn't be needed but we were not required to burden the court with thirty added pages of arguments regarding obviousness as to which we've if we want to avoid issues because of effect we need to take an appeal we have and so we think the the right answer here is to recognize that we have an appeal from the judgment it is properly within this court's jurisdiction and the right answer is to affirm on the basis of the