attempting to establish causation in the face of patents needs to put on evidence from which a jury can conclude that it is more likely than not that the patent challenge there will be the patents  let me ask you this question can we decide this case without delving into the patently shoes in the st instance and just on the issue of whether there's any competitive conduct and as a consequence think that there is no question that we've demonstrated and i trust injury in this case ultimately to prevail in that case we will have to show that the patents would have been invalidated or found not infringed but in this case the judge didn't even take a look at the patent evidence your position is there was an excuse clearly arrangement that precluded you from getting any more product but there's a couple things that we need to talk about one is the opportunity that b c n portably offered your client to money related to being a monopolist and the expert conceded the car would always outfit it would always outbid everything that we had in addition to that we couldn't bid for exclusively they were working with the c n and they were the r l d and that was the only type supplier that was you know approved to support their drug so if we had tried to get them in an exclusive not only when we have had our own tortious interference problem we may have had other issues because now you've taken the a p i supplier for the only drugs or in the market taking it looked at them and they weren't either and i'm interested very early in the process or haven't started yet and we're talking about delay of generic entry that is really important because those people while they might have been available they were going to prevent delay in into a formulation and then put on stability so that you can develop the product if they don't have the product manufactured yet you've already got time that's running and while parkway to these other people that were able to file in on those later on if you look at the timeline we were ready to go in the middle of two thousand and sixteen the next filer did not file for almost two years so part was successful in its attempts to lock these people up an exclusive deal and probably the most probative evidence of all together over the importance of the dmca holders exclusive on our a p i and we're well protected and the answer was a competition on our a p i source and the analyst comes back and says no competition in the guidance and mr camp and i respond yes no competition in the guidance so the fact that par entered into three and strategic exclusive deals to delay arrival that's exactly what happened here and just because they're all there operate the other people that are there other opportunities that doesn't take away any anti competitive effect in just why they just report had been critical of the competitors in the market saying that they had they had other routes they could have gone direct they weren't competing aggressively enough and cetera and the rd circuit in report reversing the district court said no just because something is tussle doesn't make it something that could you know correct the anti competitive problem and so i think we are in the world of possibilities here are we i mean we have we know what market was what we don't have in the record and which i think is part of the unavailable really well with her into the percentages i don't think there's a reason or any requirements of a discrete precedent to calculate the percentage of the pages the court did not calculate a percentage for closure and don't want them to maintain their monopoly to delay entry so that prices go down and so at the end of holder and on g m s holder at the time when we're talking about delay is not viable because it's going to be anywhere from a year to three years before they're going to be ready to be the basis of any of the filing so there is a pretty sort of a sliding scale of whether or not they are in the market in available supply and here we had b c and then we had polypeptides and bokken who are locked up in exclusive deals and the ones that we went to when we tried to find somebody else to assist us they didn't have the amassed some of them just dropped out we ended up with three of the ten that we reached out to one of them had technical issues another one dropped out and the other and we didn't like how some of their safety issues looked when we expected to play it so they eventually became available they eventually became available for eagle to five but they were not available they were not there to fix the competitive problems at the relevant because they have to have st of all they have to have a p i that is level sometimes they have lab samples that that's not sufficient right they have to have the that in manufacture it under good may factor practices etc that we can then formulate the product then it has to see it for six months of stability test so there is a natural delay that is happening and that's exactly what part was going for they wanted to delay and keep the prices up as long as they possibly can and that's an injury to the market that's an agrees to support our ana in putting us in l a right so we are starting that process then we go through some back and forth we've ordered the samples they talk to us in july they say they were being pursued for x to city we they say sorry we're already in excess of deals we reach out to others we're still trying to figure something out but but in that process e c n is being i would say pressured by i've got a sheet that has most of those they do too but the question is why should we look at this series of events as  ask for the exclusive they will always outbid that us as a matter of economics and so it's not a fair fight just as it wasn't a fair fight and that's why when a district court was saying look these other competitors they didn't fight hard enough they didn't try to go direct dental labs the rd circuit reversed the district court on that saying if you don't have a fair fight it's not an actual opportunity to compete and that's exactly what was happening here but does that mean that every time a generic is trying to enter the over the line and frankly it just brings out the fact that this is probably a fact question for a jury to look and see did we actually fight for b c and in our multiple requests for some i s u seventy did we have a fair opportunity to compete or was this a situation where you have the monopolist that has all the advantages has the ability to pressure and coerce and we don't have that ability because we are not even in the market yet and it goes right along with this court's precedent on exclusive deals so it's not going to be every could got it from a non d m of holder and the delay still happened we would still have antitrust injury because again you would still have to lay in the market because we were ready we could have entered in the middle of two thousand and sixteen and because we were ar dealing precedent sometimes the exclusion of one competitor can be enough to impose an injury on the market yeah i think r j images may be cut off earlier if that happened because there would have been other opportunities and the delay may have been less because we would have anybody i mean if there were many many competitors at the same time as we were trying to get on obviously that changes the dynamic significantly that that was not the case we were the one that was ready to go we had been in the market before it got its and  the f d a had asked others to get out of the market it was the two of us competing apart knew that great they knew exactly who they needed to go after to maintain their monopoly as long as they could it was just the two of us right before  before the f d a asked us to get off the market if i could ask a question about the n d a process when the under the the regime where the st guy who filed the n b a requires others to the that car was such a monopolist that it delayed their entry into the market or any other claims about this exclusivity are there any lawsuits challenging their conduct not that i'm aware out but i also don't know if they were as close to getting on the market as we were i don't know if they were subject to their cars conduct in the same way that we were we know that eagle didn't file until almost two years later but they may have not been ready to go as we were ready to go before they yanked the l a from us and what is it that when you got to do with their samples we put them on stability batch testing in october we actually put them on six weeks early they were supposed to go on a little bit later they went on six weeks early we're doing some technical back and forth while the conversation is happening with about the potential ask about that and set the record also reflects it during the same period there is communication with other sources so it's not like you're putting all your eggs in the sea and back because it's clear that you are quite was looking for well we want to get out of this market right and we're starting to see that we're having this back and forth the east and we would face that not medication of damages argument i think if we had not actually looked for some other alternatives so we had an obligation to do that i should also add to your question about what evidence in the record we also have malls declaration dr walsh who is the head of generics who said this is what we were doing this is what we are planning and frankly the lawsuit demonstrates that present is calm he was trying to file this product and wanted to do to do so by everything that is necessary for the non infringement and elses is there the formulation the ph the degradations everything you would look at to determine the non infringement position is there there's nothing it only thing that was left was some paperwork none of that is important to note infringement analysis so everything is necessary i mean the court focused on and end up but that takes work you trained which is basically an instruction for causation and turns it around in the for the benefit of the anti trust violator and basically says as long as you can prevent the actual filing of the error that you're home free it doesn't matter if you know we patent does american activist and that we patents are not a block in the chain of causation you're home free and  that seems like it's completely inconsistent with everything about the antitrust laws which are trying to protect competition it just moves it back and says instead of entering into settlements etc just prevent the end of filing and you're fined and so that that is a qualification speaks of an alternative that you had which was to go the i p r route and i want to make sure that i understand your your argument on the i p r route is there isn't a have to go through this process as opposed proving it in their case and it also creates more delay in a case that's about to lay their expert testify that an ip are from the time the file is about eighteen months and then potentially another year plus on appeal so you have more ability on top of the delay of generic entry which is what the case is in doubt so that seems inconsistent again with the antitrust laws and none of the other cases anybody can file an ip are you don't have to have particular standing to file an i in all of the other reversed payment cases no one has ever or no judge has ever said that they need to file an i p r and go and figure out the patents before they make arguments that the inability of the patent not being a break in a chair let me ask you this question just  let's just deal with this hypothetical for a moment let's take one of the a p i the potential it p i suppliers which you argue are not we're not buyable at a point in time in fifteen into the beginning  we the way we put it forth in our theories damages essentially which is what this goes to is the period of time where we were prevented from filing the end when we would have filed the end and started the clock running on approval to use the number of different marking points right one was let's say a reasonable file or i got an a p i and filed the day of or the day after eagle that is one way to measure it another way to measure it is the difference between when we would have filed and when we did file we have a number of different models that are in the damages and so it's so that so we measure it we can you measure the delay in a number of different ways and that's why in the hypothetical that if we had gotten by peptides we might have had a short amount of pages and in c f marriage where there was only one market it was the ultimate market so there is not a requirement to define two markets are expert did look at the a p i market did assess what was available etc so we did go through that and they talk about substantial foreclosure about foreclosure is essentially a proxy for looking at parts of the market and here we have farms the market all of the reversed payment cases the harm is the delay and so we don't really even need the foreclosure analysis because under this court's precedent in the smith kline case any potential entrant should be included but it would at a minimum include any suppliers regardless of whether they have been d m not for not and it would include potential entrance that there was there is a requirement to define market because you have to show that in that up straight you have to show that part cut off a substantial portion of the market does otherwise how  you able to execute on any exclusionary comp ok great that's the great point so let me that goes as you this question right so the argument is that that definition should be poly and bochum right because they were the only viable supplier at the time and any other perspective manufacturers were not capable of manufacturing market ready a p i scale i'm not sure you know if i understand your argument correctly you're sitting on will judge be enough because then you factor is deal all the time in this hypothetical point because i think you're doing a good job and it's in helping me with this let's assume for a moment not your clients of course but let's assume for a moment that there's a manufacturer that has indeed engaged in any competitive cut right so it's a out there there's only one and now that's their a p i supplier ok there's one other potential a p i supplier they say they have those supply it's all theory they're not going to get on however and i just want to come back to this because this is a theoretical discussion in this case we do not know there is no evidence on which suppliers are in that market in fact presenting us completely washes the town says we don't need to do that which we disagree as a matter of law but there is no disagreement as a factual  but as it relates to this case i mean they set forth yeah you you you cut off their access to the c n at a point in time and the same with regard to poly peptide in bochum and i've seen nothing in in the in the record that anyone besides those three and you'll tell me if i'm wrong i'm sure you will that anyone other than those three there aren't any other non d m manufacturer suppliers who are ready willing and able to provide the a p i supply that we know that's the case because ultimately other manufacturers other vasopressin manufacturers were able to obtain a p i from those so i really just have to say that this distinction your honor that somehow you can't match up is the golden ticket and the only thing that you should look at odds when you're looking at who is in the market of an a p i supplier is simply encouraging and it's going to depend who are using our record will stay away from the hypothetical whatever it's in our records show th again it's not just it's not it it's not an issue yet for it's a tribal issue a fact because what we have in this situation is we don't know where a p i suppliers are saying we're ready were able were well and and for us any assange for whatever reason no we're not going to do well let me ask you this question because i think it's right in this wheel house i'm not taking you off your your your your point or the questions that that judge shorts is asking so you're talking to us about him oh i am asked or been the c s bio so my question is as we think about the teaching of geneva understanding of the facts are at the times that we're talking about none of the potential manufacturers who are suppliers could say that and i wrong on that in my thinking about this the wrong way i don't believe that any of the suppliers that we've talked about categorically could be eliminated from consideration under based on their ability to ultimately  supply in fact we know because they've now several of up d m ups so i think that the answer in the end going back to geneva the quote that case in fact there was there was evidence that the upstream market that there was a substantial portion of the market that was locked up that was tied up there were two markets that hasn't it's no evidence here or dense plot and the look pages cases in those cases this court has clearly stated that exclusive contracts do not give rise to anti credit or any concerns and less they substantially or close the relevant market and in this case the relevant market is the market for gossip press even conduct that disadvantage a single competitor is not sufficient there must be and record this discord in z f merits or could not have said it more clearly and i'm going to read it specifically says what courts and economists universally agree on which is exclusive contracts generally pose little threat to competition they are generally consider competition in such a substantial share of the relevant market so as to a personally effect competition later on that same page z f merit exclusive dealing arrangement is unlawful only if the probable fact of the rearrangement is to substantially less in competition rather than merely disadvantage ing rivals conduct in an exclusive dealing case even conduct that might disadvantage a single rival is not actionable there must be a substantial foreclosure a competition de laine is not enough and there's no with me spec two other manufacturers remember six manufacturer six under the exact same market conditions if or is any us claims prevented them from   i mean we we can't we we can't accept your statement in a vacuum right because just because at some point in time that happens doesn't mean then in the intervening time there was no any trust indri just bear with me as a theoretical matter you'd agree with that right well i do i'm not i'm not sure i understand what the theoretical where there could have been empty competitive condos leading to it the trust injury i mean the fact that at some point somebody gets in the game in dispositive of the question of delay or the alleged injury chew it competition reducing aspects where the exclusionary conduct here there is not a shred of evidence that there filings were delayed a single day or because of any exclusionary conduct there's been no timelines we have no evidence at all they would have filed an october of two thousand and seventeen but they were delayed because of our conduct there is nothing so to answer your question your honor and i hope that i may answer it theoretically yes you're right that just because something happens late that doesn't mean that a point in time but richfield case by the supreme court any trust injury only exists if it's connected to the competition reducing aspects of the defendant's behavior so you know well yeah i'm understanding your position can you talk about professor readers point about the distinction between exclusive examining an exclusive arrangement there has to be a substantial portion either of the upstream supply market or the downstream output market it's just flip sides of one another in fact  larger percentage of the available supply or outlets that entry into continued operation of the concentrated market is a reasonably construct and are you relying on those words to support your very that's the proposition you want us to lean on to say there's been a failure proof because there hasn't been this yes i think that the required yes your honor because we would contend that under this court's precedent well because the relevant market for competition because we are relevant competitors in the fossil press and market so the open market for showing substantial foreclosure is in the past a question mark at that is that because bad is the vertical supply the mechanism in order to show how the exclusionary conduct causes the anti competitive effect requires so as a simple common sense because it requires no we don't there's no evidence that we've cornered the a p i market not let me let me ask you this question on this particular point right so there's an internal party e mail and forgive me i don't have the page site but the quote is coming up this internal party emailed us stating that exclusivity with poly peptide would quote because more important if we reach exclusivity with b not exclusive contracts with upside or with bochum but we would concede that there is a disputed issue well that disputed issue is not material your honor it's of void the patent issues by affirming summary judgment on the ground of any trust injury yes absolutely why because the race tires case this court's decision and race tires confirms that one and any trust point of decides not to compete for desired business that does not and cannot rise to the level of antitrust injury in this case regardless of any exclusionary conduct in this case for as any us had every opportunity to compete for b c ends a p i supply despite multiple invitations from b c s and despite the express recommendation of its global head of portfolio strategy that it make an offer for semi exclusivity to b m and an offer which would have included substantial milestone payments for his innocence top brass said no we're not going to do it we are unwilling to compete we're unwilling to make an offer why because they didn't want to get into a bidding war because they thought they were entitle your honour's under race tires summary judgment should be granted explicitly on the point that there is no disputed issue here for zinnias never bit never made an offer now they have a lot of if they take issue with race tires they say ok well partial monopoli so being a monopolist is different not so in race tires hoosier is the defendant had a seventy nine percent share the fact the pars has market power doesn't hold water next they say money is a form of coercion it is not offering and you're just giving away you had it right on the head b c n was in the middle and b c n was doing a good job playing you know par and presenting is off against each other trying to get the best deal that it could offering more money is not a form of coercion as the race tires case of any more so than a competitor coming in and offering a discount in order to take you said was in race cars said offering more money isn't a sponsor they've got that the question is you mentioned earlier that they had offers some i exclusively and that  the city has had the opportunity to compete on a semi exclusive basis and my question is if the report by heart is x cool scenes and therefore for closure that problematic it doesn't matter under a stars race tires was exclusive whether it's semi exclusive or exclusive it is undisputed france and has never made an offer it net it chose  to compete it chose not to go out into the marketplace which is what the any trust laws encourage and compete and an unwillingness to compete does not constitute any trust injury and your own it doesn't matter if it's s icicles or exclusive they have the opportunity to bid on a sum i exclusive of fact like i said i senior executives specifically recommended it and they said no now i want to court had everything she needed in front of her to make a judgment on that subject so did she hurt by declining to do so and if not why not i don't believe you i don't think it's accurate to say that the district court did not examine hypothetical patent litigation involve a product that doesn't exist the district court examined that testimony and found that it was not grounded in actual evidence concrete outcomes concrete facts and she rejected it appropriately so because it was too speculative so the suggestion was that well butane requires and we would agree because it wasn't grounded st and foremost in and and dr schwartz i think you were asked the question about the draft and there is not and we don't have a draft and then we don't have any of the elements that would go into a  so the product and the product formulation is surely surely speculative so if there was if you hypothetically let's pretend you were you were just in your patent case is your you are you saying you could not your got to be three dollars but there's no question that it would fall within and that it would then be so it's clearly within the ph range and infringement would absolutely be a condition now so i hope that answers your question i do want to because well you trend is so critical with respect to the causation argument right again interest injury foreclosure we believe we're entitled to some region of the note disputed issue doesn't involve the pats but with respect to well peter it i'll give you thirty seconds oh well butane and that's all she wrote ok thank you your honor well strengthen its position which may ultimately harm competition and indents by the court refers to a set of strategically planned exclusive deals that may slow arrivals expansion that's one hundred and ninety one citing a treatise and a document three to six practices bar a substantial number of rivals or severely restricts the markets and it and by talking about the pages so there are other ways there were other ways across the river but the retailers in that case with the most critical need explosives there's no basis for that there was no capacity constraints they could have done a contract with all three of them and allowed them to still even just given l o l a so somebody could get their end on file and even switch to somebody else so there is no need for that so it's completely distinguishable from race tires from that standpoint second with respect to willingness to compete st of all again it would not be good if you did not think we tried to compete i think we did with  semi exclusive but again in this court's precedent futile you know champ drives a competing don't rule the day and here we tried many times the semi exclusive and if you want to see b c ends concern about the exclusive you can see that and talk about the fact that if they had tried to get an exclusive when they knew that they knew b c m was supplying par and parr is the only entity that has approval to supply the market that they would have been taking away the a p i supplier for the only company that can provide this lifesaving drugs i mean this drug is given to people who are dying and so they did not think they could compete in addition to the fact that it would have been illegal because it would have been tortious interference themselves and so then we just view here on a different kind of lawsuit and i trust laws do not require somebody to break the law or to put themselves in a loft lawsuit in order to compete additionally they said there was no discovery on the record they looked at three of them one dropped out and the other one had technical issues another one really we inspected their factory and saw that they were storing things in an open pot the other thing that's important to note is the geneva now counsel talked about the fact that two markets were identified in geneva the market was defined but that was because there was a lawsuit in that case to the trust lawsuit against the a p i supplier related to a p i supply so there needed to be a definition of a mark worked for that and i trust ace lastly they say there is no evidence of a product and yet they say that there is an issue with the two hundred and thirty nine d well protected on their a p i source and antitrust injury he in this case comes from the delay so there is antitrust injury to the market because prices are high and that those prices continue to be high to this day because nobody goes into the market and