issues in this case number one did the district court or the apply the clicks decision this this courts of which decision and the second made issue is whether the district court misapplied the professor or charge factors for  that they had to damage just one then they filed a d j case so what the glitch plaintiffs were doing was using a declaratory judgment to pack a verdict that had already been re ss issues in the infringement case and also with the other an equitable kind of issues that we feel quite strongly that this matter should be tried together that it would be sound judicial with ministration to try these matters together and that is why and my focus was primarily on the biological difference of an editors and most of the ever well conduct allegations refer to that now at the very end of the expert depositions i was reviewing think it may tie in one respect and in you say that that was clearly an error and i think you what really makes me think you i think in your view is what you referred to when you were speaking the mo first page of your this court's decision a glitch the light bill of the phase of the case had been tried the damage of space had not been tried there was no final judgment in the case it went on for quite a long time a bit early but the case was still pending before the district court and the stage at which the effort to and then to add the patent is used defense was made it goes entirely to the question of whether the district court properly exercised his discretion in denying that motion which is not an issue before this honor i couldn't agree more it was absolutely clear the court said they were very very fundamental policy questions involved and namely that issues relating to a single case are litigated in that case that matters on a raise to challenge the judgment after a a case on appeal that said or all of those policy considerations apply with at least equal force here they have if they lose below an appeal to this court as a matter of right that is the time and i also respectfully disagree with counsel about his answer to your honor's question about a petition for writ of mandamus i'm not at all inviting such a writ i think would be ill advised but if they genuinely believed that the court had grossly abused it discretion in refusing to allow them to file a fifth answer and counter claim that after they had already filed for and after all discovery in the case was closed if they really believed that that was an abuse of that court discretion than they absolutely should have been here with a petition for writ of mandamus i filed them on occasion in my thirty years i don't like to do it but i've done it a few times and of course it applies in situations where we think that we theoretical possibility it is not only theoretical possibility if they genuinely believe in what they were saying it was a real possibility they didn't do it they chose not to wait for appeal they did exactly what coke engineering did in the glitch case they attempted to do and run they attempted to do exactly what the refer to as their important right issue in their appeal my answer is there is such no such important right and we start with what glimpses into live the appellant made exactly the same argument in that case they said it was the important right to make patent misuse articles and they were being deprived of making the patmos you start even with this court said was the policies that underlined rules eight thirteen and fifteen far outweigh any alleged important right and said wait for your vie the district court here in washington in a case called app attacks against the f d a if that happened it would trigger their one hundred eighty days as the first trial so far from some of the loss of an important right they would simply have the right to go on the market sooner than they would if they litigated against us under that hypothetical if they were hurt because they were first in line with that priority is a loss that they literally just litigated this question and have attacks against the f d a before the district court here in washington and that's what the court help moreover when they don't tell this court is they have one hundred eighty days a priority under two of our cats a second patent which on which we did not sue them because they do not appear to infringe it is a poly or that they have priority in that on that path and as again they argued remarkably this is the biggest miracle of all to big they argue against this position in the f d a case they said the f d a position should be one period of priority for every drug not one for every pap and they lost that issue so in fact they have to one hundred eighty day bases for priority in this case and someone this nonexistent generic would not only have to get to this first on an issue they haven't even pled let alone try somebody would have to knock out the other pap in order to  eliminate this particular generic companies one hundred eighty days there is absolutely no basis in this record to conjure up that possibility this important right which is supposedly at jeopardy i would respectfully submit the right to  litigate patent misuse in the glitch case was a more real and concrete right which this court saw fit to override in the face of the policies that underlie the rules of civil procedure than this particular report writer could ever be and by the way if they really thought they were in a race to get this issue litigated first then why did they go to the district court two weeks ago and get a ten week continuance of the trial their letter to the court failed to point out that it was their scheduling con ours they made the request all we did was not object to their request for a continuance of the trial date and the judge gave them the exact trial date they asked for june the twelve so if they thought they were a horse race why are they slowing down why they ask for more time because there is no horse race there's nobody against whom they're racing nobody else has raised the issue let me turn if i may just quickly a few minutes to the so called dow jones factors and those are the factors that relate to whether or not the district court has properly exercised its discretion in dismissing or not dismissing a declaratory judgment action the first factor is whether the judgment will serve a useful purpose in clarifying resettling the legal issues involved the legal issue involved has already been resolved the judge denied their application for a fifth answering counterclaim if this court ultimately disagrees with him he will reverse it and it will be tried  there is no uncertainty the matter was submitted to the trial court and decided it all of the cases they cite in which these factors are applied favorably to allow the clarity or judgment actually to proceed it's because there is no and tell him to do it but that is not with all due respect the justification for them to run roughshod over will they will thirteen and will fifteen we live in our legal system by rules we have to obey the rules rule eight c says if you have an affirmative defense you shall pleated rule thirteen a says if you have a compulsory counterclaim you shop pleaded rule fifteen a says you are entitled to a men only on leave of court or by consent of the adverse party they didn't it would could conceivably have made a difference because it would have been a motion to supplement and not a man it doesn't it's not this case your honor they have the evidence all along and they admit that which leaves me the last two factors if i may the third factor under down jones is whether the proposed remedy is being used merely for procedural fencing i have to say in thirty years of the bar i haven't seen procedural fencing quite like this by the pleadings and then you exactly the same procedure exactly would call continuing to the glitch case it would be equally inappropriate which leads to my final and that is the last of the factors which is whether there is a better and more effective remedy other than declar believe respectfully this court decided that which case the way it did that's why judge stein decided this matter the way he did citing the litigators of which he was quite aware and that's why if at the end of the day they have a claim the place to assert that is here on appeal if then it's improper for we are not for shopping we went to the same judge in the same time to where we're not doing any reason to want to go to the courthouse we want to be heard in the same trial there's been no trial yet