fourteen thirteen twenty nine trans union intelligence l l c first a search american kirby sprue who was retired from the texas health and human services department and whom they claim had developed a process if not exactly they what i read here they say for example unable to depose him despite having known of him since two thousand and six you know right and what they're referring to there apparently we learned during his that at a time after retiring from the health and human services department of the state of texas he had become a consultant with andersen consultants during that period of time in two thousand  apparently though the people had no recollection of this when i presented it to friends union had contacted anderson consultants and said do you have anybody that there was no there's no information in mr rules deposition testimony from mr spruill that he said hey i did the same thing up state of texas really thing like all right so for them to say we've failed to the judge well let's let's compare that a particularly in terms of the burden on the court i mean we haven't yet decided what the standard of review here is but certainly at least with respect to the district court's judgment about whether  granting a stay with relieve a burden on the court don't we at least on that issue have to defer to the district court's judgment in the district or be in a much better position to make that judgment than we are well first of all of the co reduce the burden on the court grants they don't we at least on that issue have to give considerable deference to the district court's judgment about well i think you give i think you're going to give deference to the the cor in every case so you're certainly going to consider what the court used in its rationale but it seems like the legislative history on this a statute makes it clear you know what has existed in our you know our history for a long time in terms of how to review states then again i say no you're not you should not limit yourself if you think about it  simplified haitians and within six months because we were only six months away from ready we were going to go through some reject motions and have resolution there now if if the court was resolve that point now you know the the court may have determined in summary judgment hearings that are patent was invalid and we wouldn't go to trial but there was a fair amount of work still at well what do i get or do i have to do if i get it back what's the posture what's the overall posture and and have it it's a pretty complicated formula they know i would i would take it a little further than that to explain or i would say that i believe that the district court was unfairly unfairly just influenced by is believe that his internal beliefs when we had had no opportunity up to the point when this motion first day was made no opportunity to give him evidence courts are supposed to look at and consider in making this decision i think he has asked those factors based upon his belief is weaning his inclination that our patents were invalid when he when there was you know bases far more that conclusion on his part i think is order is pretty clear i mean he refers to us as casting about for a cause of action a theory of the case you can look at our original complaint filed in the eastern district of texas it is week we make the slain claims in theories of the case in the original complaint as we do in agility decision virtual agility says that the district court's consideration of the merits don't weigh one way or the other in terms of the state that's not that's not appropriate consideration so whatever he said about pan validity doesn't enter into the calculus a step to the extent that it may properly influence the decision to grant that i don't disagree with that and i would say if this court would review  factors without in any consideration of whether or not this pat was valid or invalid it would find that it was in our favor not in the movement's favor and that this patient not being granted and that's where look at those four factors and and decide whether or not the president that this case should set in this district in this circuit should be the case four years ago finished with discovery six months from prague ready three days away from martin and at best months away from summary judgment hearings should we should twenty fourteen as i recall of here you expect a decision by february twenty fifth that's correct term throughout this case there's been a thirty at the close of facts but what does this have to do with state lost time yes it would have to have to do not only with timing but with the third factor which is essentially equitable in nature whether or not the latest would be equities of the case so trancing for example complained that we were approaching the fourth beginning of a fourth year of litigation when in fact the district court took trans union to task for having amended the complaint five times seeking a six and suing a raft of parties that never should have been sued in the first place i'm having difficulty in seeing how that's relevant we would agree with you your honor my learned colleague has not even addressed this court's recent decision as a basis for that what was he would by your opponent as the delay in filing the c b m petition and your response seem to be hey there's a lot of stuff you never told or so specifically in terms of the petition kirby sproule was someone that we had to find on our own right and when we deposed him on may thirteenth of two thousand and thirteen he gave bombshell testimony he told us that he had conceived of this system in one thousand need to was given a million dollars by the state of texas to develop it had reduced it to practice with a semi automated method in one thousand nine hundred six fully automated by nine ninety eight by the year by january two thousand there was a one thousand five hundred forty five page document which we obtained from texas under the open records act in which this system is going to upgrade to a billion dollar then in two thousand and five he said he wasn't sure of the exact date but in two thousand and five when he was in the and now in the private sector he consulted through accenture for trans union and spent days with their lead inventor byron baldwin teaching them how they implemented the system in texas in two thousand and six trans union amended their pending claims in the past few shoot in two thousand and had we known of the importance of mr spruill we would have gone right to him we found him on our own he was referenced in a deposition in august of two thousand and twelve but we didn't have any idea how important it was what was what is what is the point here that if you didn't know about the grounds for instituting the  c p m proceeding until you got discovery is that the point is that the point is your honor that in order to believe that we could final six as you delayed some period of time  after this procedure became available before filing and that's one of the the grounds that said to argue against the state so are you addressing that by saying we didn't have the evidence to institute to the p t o proceeding until we got discovery what what is the point here yes your honor so the procedure becomes available september sixteenth two thousand and twelve we didn't find our second that's correct and he testified that is offend your first one hundred ninety eight they were using trance union the trancing came in and installed computers so transpositions we've been selling him credit reports we don't have any idea what they were for the same thing with bob witnesses that are not disclosed that we have to find up on iran and it so we get those and understand how the system works and can explain it to the p tab it's an entire reason recently that we should not be expected to file these two eighty page position are in in play here are the virtual agility in the sauna case and they both heavily favor us on the first issue the simplification of issues the p tab did not just institute review on certain claims is trans union states but are all claims all thirty four clients on multiple alternative grounds sixteen of the eighteen claims for alternative grounds two for the remaining two and then on the four way at least two alternative grounds now this court just stated that went all the way to get it claims have had review instituted that the first factor of simplification weighs more heavily  there is this problematic situation where people use the discovery in the district court proceeding as a way to develop information to institute the c maybe to some extent that happened here and they delay the institution of the c p m proceeding until they have the discovery the results of that is that the district work has expanded resources sensually and he proceeding that seems to me to be somewhat problematic no your honor not if the other party is hiding witnesses and you cannot get the information so you've got through the discovery and once you have the information you realize aha testimony getting that authenticated the the other major factor is that the trial court informed us on april thirteenth of two sept two thousand and thirteen he was going to delay markman by ten months those were the two to be saving and that is exactly think that the lay in instituting the proceeding is not a relevant consideration the the statutory factors as frank knows what's the answer is what is the alternative grounds the doctrine of unclean hands you can't hide witnesses and then say oh gee whiz there was delay before they dug those witnesses out and got their testimony you you know you have the additional equitable factor that  approval harm in virtual agility of a small company a concern that they would be a true today out here trans union is a billion dollar company cohen by goldman sachs which is a matter of public record is backed by warren buffett and the us treasury and a member of the work that have to do with anything well it shows you're just trying to prejudice us aren't you i mean really your honor my city with it respectfully not your are my opponent focuses retrospectively they say well look at the fact the time that process was finished we had pledged satisfactorily to that fill the court and that's all i have to say about that i mean it it he felt like our pl and then did and and he he finishes by saying to some to america actually i think i've made friends union please more than required by our rules reforms and that's the way that series ian's there was never but there was never a time until we got to this court or the briefing in this court that i heard anything about they wanted as they wanted her taken off as you know represented to us and your and your primary argument that mr sprawl was solely a consultant about marketing and ye kirby go to trans union they want to talk to you to you about marketing in the health care industry he arrived in chicago midday at the trains union offices left sometime the next day and was never heard from again that's not saying he didn't provide some sort of valuable information to us but he wasn't there to discuss what he had done in the state of texas we didn't have any awareness that he had done anything in the state of texas ok so that's the sum and substance of mr spruce testimony