in this case sales force dot com filed a petition for c b s review before a scheduling conference had even been set willing day all of the other defendants and sales force but filed a motion to stay the that yes your honor what i suggest to you is that for purposes after evaluating the second saw which is the timing problem for purposes of that form certainly you should look at the time when the motion documentation has been exchanged but so far no a part of the depositions have taken place martin has not occurred expert discovery has not occurred the difference is sliding scale then one shouldn't then should that there is a consistent application of the law it gives you that the novo review tool to do so this court has recognized that in many instances in order to ensure that there is consistent application of the law  that fools that no wrote a review of the entire record is necessary and that's what we submit that this case should be reviewed under a complete to know are you aware of any statute that review should be quote unquote may be to no an hour we've seen we have point to a statute that has a similar language that indicates that review is available for the courts and the case flying the case that it's up to the discretion of the courts to apply for them but in our in our specific case if i may say so this court has more guidance and that because of the expressed language of the statute says that the court is is given the mandate to ensure consistent application of the law and so the gives you the discretion to use the turnover review to ensure that this happens so how would you divided up into the whole inquiry complete  their record and for example in a situation where you have a fully developed record such as after a trial there may be instances where a judge has already made conclusions based on credibility at that point concern that perhaps an attorney wouldn't be available if the case were stayed a year or more would such a credibility terminations be suppose the judge brought the attorney in in good health what are your medical records look like anything i should know and suppose the judge made a fact finding these guys on death's door you know is that the kind of thing that you think ought to give we would give deference you know in that scenario well that it's really the sort of thing that where  credibility terminations has been made and you know that tilts more toward providing some deference to those facts but those are not the facts in our case the judge never spoke to any witness and in fact the individual that was appointed to his being over seventy years already both parties to examine that witness so i don't think there's an issue as to that the other individual is pointed out as being old or is the widow of the inventor of the patent but the evidence does not show that  this person has any relevance knowledge i mean to strip the widow of the inventor that's all that we know therefore i think the argument that the police may make regarding lost memories and fading memory are just not should just not be given weight based on the information we have at this point is that by the same token there's no information to tell us that if there are fading memory that they could also favor appellants so it's that it's just a neutral  out of curiosity what do you see as daylight between the first and the fourth factor and they seem almost identical to me it's hard for me to imagine what pieces of evidence  direction one that wouldn't be exactly the same on the fourth visit do you think that the fact that the articulated it factor one in four means it's doubly important in alice's somehow or do you see daylight between the two of them you can help me understand yes because if the two factors are different and there has been there is some ambiguity as to how they should be applied and if we look at the congressional history of the congressional history it's clear that congress added the fourth prong which is the reduction of the burden on the party in the court in addition and to be weighed separately than the first prong which is the simplification issue first prong just look at are the issues going to be simplified if a save granted in our case we say significantly so but the fourth prong also looks looks at the birds for example in our case in your scenario let's assume that some but not all of the claims are invalidated so some claims survive and there's an immediate injunction are you better off with  but you certainly must have considered all of these possibilities and instances of significant ones well certainly there's a possibility that some claims can survive and saw may not survive that does not mean that there's going me if if that order had been decided earlier on then potentially with it we would have avoided the cough up to date now there's still plenty of litigation left to go in plenty of expenses to be avoided burden on the pardon since it would also a c b s proceeding would simplify the issues for any subsequent litigation what what are the the boundaries of your position i mean when would a sta not be appropriate well you've got to look at the specific circumstances for example if it happens that the c p m is requested or instituted happens that the plane to be retired and that would seem to need to be quite novel and unexpected are you suggesting that if there were four patents suit against you and one of them was subject to a c b m or view you would suggest  district court state discovery as to that one but proceed with discovery on the other three no i'm suggesting that all the factors have to be way but the fact that only one of the patents is under c v and review m review is scheduled to have a final determination by november of this year after that there's a possibility of appeal but we don't know the parties are going to appeal so it could be a transitional proceeding so it's when a final written decision comes out from the p b m you know i can't tell you exactly what that is an interpretation is certainly that it could be after the p p p issues their final  court's decision in john findings of historical fact particularly the virtually gelati in sales force for direct competitors in the market for enterprise level cloud based services pacifically the market for government customers given what the ai sends well i think under the i a e a it said there's two pieces to it the first is that they're reviewing this court to ensure the consistent application of established precedent that's the scope of the review then the next see don't impact whether president with the application of the law to those historical facts in this case i think the other reason that the novo review is not appropriate is because the statute says your honor was  says maybe dunno though as opposed to shall be to know though the general rule of the party invoking the statute that's permissive such as may as the burden to show why it applies when the section eighteen was inactive the establ whether it should invest its resources into litigation or stay that litigation because of the district court there is the consequences of that decision whether it's stating a case that comes back three or four years later with the balloon prosecution terms of understanding what are the appropriate considerations for each factor and what the ultimate determination of whether a station be granted in light of those factors would be a question of law that we would review de novo i don't think that's correct i don't think it is a discretion standard necessarily includes that so they went back further in the statute so well did they anticipate we would get to know the real deal so they did not say what further in the sense that they gave the court the option to go further because it says such review may be to nova not shall be to nova and it did and it is a case by case determination because the way the statutes worded it is not the most ideal wording is that such review of the district court's decision may be to know the which in the case in a particular case would work quickly at our discretion whether to give discretion to the district court that that's correct and if it is a situation judge moore that i think would be appropriate it would be if you have same had two different districts case might involve big companies suing big companies the other case might involve big companies doing small companies why would the mere fact that it's the same patent somehow converted into a repeal well i would assume that if it is the same pattern is filed at the same time as against similar parties the facts of the two proceedings would be the same wine may be well on your to your assuming everything is identical about the suits i mean that's the are similar enough that there would be a conflict use of discretion and next came the identical fact if the court has gone the other way my inclination might be to say not with the use of discretion but are you saying under the statute that that's exactly when i should insert the question what is the established precedent and if the established precedent is that the stay was properly ruled upon in the first case the second case would have to follow that precedent and that would be assuming that the fact identical i think though in most cases the question is what were the facts of the case in our case because of the prejudiced point that is inherently found with this case  i just need a yes or not well we would mean there's no evidence of that sales force that i mean after all it was a small business set asides wasn't it i believe that's correct on that that's correct and sales force dot com doesn't though i agree with you that it's highly unlikely so for sales force to qualify for this that they never deny that they didn't put in a bid and they would have evidence of whether they would have put it of the second point is the government does not take these brand name products out of the hat sells for starters fails force and its website is in the search results separation as a substantial amount of government customers the fact that the government is one of my clients major customers lifted sales cloud and services by the products that we have accused and then solicited a bid from us off to have a product that each of those specification that isn't one of our customers telling us that sales force is products in our products are in the same market i think they're in the same general market but it's not clear to me that seems a very large market that you two have ever actually bumped up against each other and competing for the same contract that's that's the question i'm having  similar we have similar customers and with the stage with the state agencies and federal agencies so one of our customers was the state of new jersey that's one of their customers i don't think at this pulmonary stage and you have to go back and remember they filed their study research reports other things are quite a very small client and doesn't have the money to subscribe to something like m t v reports we have a declaration from mr rudolph that it's just a customer virtue agility have tested sales force judge feels track seems to have relied on in multiple places in the opinion is what appears to be his own view or sort of second guessing of the likelihood was look at what is the risk or what is the true potential for that proceeding to simplify this case and it's undisputed that for for there to be a significant simplification  discuss it in the simplification of the issues section my concern is that it does seem clear from the purpose of the statute that congress intended this to streamline proceedings and what makes me a little nerve this is the idea that district court judges would feel compelled to do their own independent merit based analysis of all the issues in the petition to the p p you know as part of the determination it just doesn't feel honestly to me like something that he should have been doing it doesn't feel like that was what congress meant when it said will simplify the issues and streamline the trial it feels a bit strange to me to think that what that included was the idea he would do his own independent review of what the p t o didn't say i agree or disagree with their initial assessment that feels like an awkward thing so i want to hear your of whether that is really fair grounds for a district court in the consideration of the four factors i think it is and the reason for that is the two factors you alluded to the first factor for the fact that likel standard now for interested in these proceedings it isn't any longer substantial question now it is more likely than not invalid and the p t o concluded that that was true here on two completely independent unrelated grounds for every claim in the patent is this a scenario where we really want judge still strapped to spend his time energy and resources and the party's time energy and resources converting this into a likelihood of success analysis that is a well known factor  work discussion there's twenty one claims some of them are dependent client this best of five particular type of user interface none of which have got into making it fairly likely that at the time of final decision at least some of these claims will a motion to amend the claims in c b s this yeah it's wrong so if there was no stay how would the litigation go how would you do a claim construction which every way in the jury in the trial would just pretend the what's going on in the parallel proceeding in the p t o is not nonexistent that's not exactly correct so the defendants ha won't there's only one narrow circumstance that it might and that he would take up the rolling plain construction of the oath into a rolling claim construction on that basis one of the points of the defense may is that they claim obstruction record in this case isn't plenty of time to incorporate how the potential amendments or any statements that we make and process the c p m proceedings would impact the scope of the client and i think the other point to make is that more than half of the claims are not even subject to the and  direct path to a result which may or may not be final when it's all over there but for this to to go on concurrently seems to be the one direction the congress ought to avoid and i think that that's correct in the general case but the difference here under what judge bill strap found is the difference between do we do this concurrently or do we do i fourth factor i mean it's a separate factor is it not so you shouldn't be given separate weight it is separate from the first factor it is a separate factor and the judge addressed it as a separate fact it look earlier there is a lot of overlap it's more simplified cases a case of less burden on the court i think the other point to that is is in the opinion judge feels trapped summarizes the defendant's arguments below and sports factor as being the same as their arguments on the first factor and the new arguments they've raised on appeal about the burden on third party never raised them so you'd agree then at least that when it comes to the fourth factor perhaps because it's so similar  first factor in terms of its consequences that if we feel like the first factor points in one direction and it's kind of like a doubling down that the fourth factor sort of doubles the weight on leaning in that one telling me give deference to his decision about what is or is not a burden on him that would seem to me to be somehow meaning uniquely affiliated to him as opposed to to all district court judges because i don't know why all seven give deference to him when that decision and i see nothing in picking fifteen or sixteen is opinion where he went to the burden on the court whereby he said something about how this would be a burden or not a burden on him but i think he ties to the simplification issues and  made a decision that it would reduce the court's burden if this case comes back in a more complicated form or in a substantially similar form when weighed against the prejudice to virtually agility from a multi  is that congress was trying to change the prior of what had happened before as far as the non uniformity and motions to stay pending reexamination we're just talking about a floor statement from a single senator right now that's correct bill ok when you move on let me ask you a question tactical advantage to help that to prior art references feels really tactical to me you have three prior art references that you've asserted in litigation are all one of two references you only give the p t o one of them you clearly did it to avoid the stop or you wanted to keep something in your pocket to be able to go forward with the district court that seems like quintessential tactical behavior you could streamline this a lot more by giving all three the p t o and letting them make that decision honor judge feels trapped states in his record in his opinion that one of the references the pex the reference we have to go through an extra judicial process to get talking patients from canada the fact we only obtain those documents in at is oracle politics and that's why we mention that project because there are witnesses in northern california that we have for the court that we would need to be poked at some point because they work for  that is a one zero two barring novelty read on anticipation reference there is nothing i see in a section eighteen c b m procedures that prohibits you from bringing that to the attention of the p t o for their the after the summer was done in the early fall we knew that there were going to be witnesses from or not alter your odds are we did not have that evidence early on in the case the reason the judge culture points to that or a project is because we moved to transfer the case and we indicated that oracle posits was a source of good prior art and that there were witnesses in northern california that would allow us to pay that information back when now that you have it can't you supplement the proceeding as a p t l with that information so that everything will be consolidated in one forum i'm not aware that it can stop them as the well not really because the post grant review this is the beginning of section eighteen says all normal post grant review procedures shall apply to different well one of the normal post grant review procedures that exist for exams for example is i d s this so it seems to me that the patent he could quite easily give these two pieces of past prior art to the  consideration also so why well did you do that figgy could be done through a separate separate sufficient be it would just throw out off the whole process because the process  to a second procedure figure or sent on appeal to be clear it's those other two references that judge feels trapped mentioned you did not have them confess them or know about them there's no way you could have given them fifty t l at the time you file