my ability had been entered first action also english the proposed answer in the first act and the complaint in the second action and bought affirmative defenses to liability that had already been determined in other words which was attempting to split the claims and the defense as to those claims into two separate actions which had be a fact trying to vacate the finding of liability in the first case or at least trying to avoid it awarded damages in action and thirdly english the appeal of the order denying leave to a man would have made a good whole simply bush was trying to in and around the courts order by contrast in this case mr palmer is not trying to do an end run around any the two limited issues in the first action would not give mr palmer full recovery on his claims this that the patents at issue in this case were the first one have the defendants have these in this case it's just the passage of time has really weak and he claims mr power would have for example one of the key witnesses as to the neck and conduct has passed away the attorney that have a patent infringement action for cd and then for example get a judgement and then later come back with a claim that the patent is invalid and have that judgement overturned by a separate act there whether an argument before the court which could not obtain it just adjudication is right that claim is present in this case equities dictates that mr palmer be allowed to proceed with his claim these are palmer for inducing infringement but also to corporate defendants for infringement of the patents and sued that case the corporate defendants filed for bankruptcy in april of two thousand and two there after the action was stayed for some time trying to sort out who was doing what with respect to the bankruptcy and in the fall of two thousand and three the parties in the court decided to move forward on the claims with respect to the inducing infringement plan raise would occur after a decision was rendered for summary judgment on the issue of mr palmer's liability for inducing for it's that decision on that motion came down i believe in september two thousand and four there after the parties in gates and discovery beginning in october two thousand for the defenses that were noted in the answer at that point and at that stage uncovered a slew of evidence as to p s c is kind i've kind of done its officers that our grief but having reviewed it i think that it's certainly dispositive of the good declaratory judgment claim for an equitable conduct and also or antitrust i think  that counsel has told you that those were two claims or perhaps a defense and a claim that were presented within the proposed amended answer and counter claims that were part of a motion for proposition that you should not collaterally attack a decision by one judge by filing a separate action certainly it would seem that that would apply even more so if you file a motion for  leave and then bill wait for the district court to decide that motion and go ahead and file the server action because you are concerned that perhaps you won't get the so that you want and i think that's what is what happened in this case the motion for leave was to was filed and simper fourteenth of two thousand for the new action was filed on february seventeenth of two thousand and five and the motion for leave was denied issue should not be decided in a piecemeal fashion by several courts they should be decided by a single court if you know happy with the decision that that single district court gave to you then you should appeal that facts which were the basis for the inevitable conduct an interest rate go all that was known to be the defendants in the patent infringement action certainly by two thousand and two and they did not take any action bankruptcies flying here and there and i think that people were hoping well the case is going to go away you know not under the sequence of events that occurred yet i'm saying i'm saying you've got the d j pending and he grants the leap to a man you'd have to pending cases with the same issues brief particularly on the issue of inequitable conduct in the surgery judgment for invalid and those are mandatory for claims and if you'd like because they were omitted from the proposed a been golden eagle industries the competitor in the industry not mr palmer who was not a competitor in industry who did not suffer certainly did not lead in his second place that any of these and then they are not permitted to assert a separate infringement action because that would have been a couple of minutes or ego well can you can can you say there are cases like that yet you have one of ours that you can point me to that you've got at your fingertips from the prior regime when there's regional circuits and less critics epting that that's the case generally on the theory that they do arise from if not completely  whether they are compulsory i think is really a an open question it might very well depend on the particular facts of the case but it does seem although there is there is a logic in which you say that we are going in your direction in which the gym it claims are properly not permitted to be brought and then properly deemed stopped which does not the facts would not be the same well the facts were known to the defendant the infringement defendants in this case they knew who who persist in shooting equipment had license alive and you know we talked about the fact that the evidence is getting older and more difficult to preserve all the more reason those claims should have been brought at the time that they were they all centered on the validity of the packs that is an issue in the infringement case defendant homer and the other defendants made an issue in the infringement case that was the time to present  is wilson i was just looking back at judge kovacic which is order she says defendants possess the requisite information needed to seek leads to amend in two thousand and two defendants further failed to show that they received any substantial new information from mr nearness two thousand and four deposition goes on to say for this reason she denies your your claim if you had all the information years earlier and didn't your honor i don't know if we would take issue with that an appeal of the first action i think there are a lot of decisions there that perhaps are not the best legally reasoned decision but for this case mr let me ask you the question that occurred to me when i really should have posed to you but occurred to me when your your colleague was standing what happens if the district judge had granted the leave to a man and had the district and the parties would you maintain the two and just take two shots of them maybe the other judges more favorable decisions again i would submit that action could have been consolidated or whatever action decision went for it that decision would be binding on the other let me ask let me ask a variant on judge raiders question which is because  question interests me also but let me change level little suppose that then in the first action there had been a denial of your motion to amend and suppose that that action had suddenly proceeded much more quickly and there had been an appellate decision upholding the denial of the motion to amend and then you filed a new action would