good morning may please the court the primary injunction in this case should be vacated because the district court failed to comply with will fifty two eighty two because it did not find the fact that shelley or stated conclusions of law separately what's the schedule for the trial is that still in december or january when there's no trial date and that has not been second run but he said that he's ready to go in december january right he indicated depending on how long the trial that he was going to be conducting in october november when that he may be ready for trial in december or january and then trial oh right i believe that trial the jury is deliberating at the moment and try means it's almost over yes k p thank you the district court you to make a factual determination that it needed to make to resolve the issues nor once you determine that there were disputed facts you didn't want an avid edgy hearing as required by controlling authority what what do you think was needed to be found that was not found we have a transcript i think we've probably all read parts of it where he makes some pretty clear indications as to what  is feelings are on the likelihood of success or not talking about actual success but likelihood what findings would you have had him make more well there is at least three issues the court didn't address at all in validity the functional element of the stabilizing code limitation and public interest there are no findings no discussion on any of those three issues in the court's opinion those were all required and best the court repeatedly stated that it was not in a position to make final determinations because the facts were disputed at a sixteen and many of these will have to deal with the same issue and that is did you object and give them a chance to correct any cure any on finding of facts such as on the polling that you object and say please give us findings after the decision was made we did not and there was a long discussion at the end a little confusing about what more do you want from me kept saying much more can i do what more can i give you what more can i consider and ultimately  there was no specific request providing the facts we were discussing at that point and requested an evidentiary hearing because the court repeatedly stated that they really need to see the experts testify he was not comfortable making credibility determinations  just based on the paper in front of them and so when he was asking them were more we wanted we said we'd like an evidentiary hearing if your concern judge of what's holding you back from finding the facts here is seeing the experts let's get the experts in here let's put him on the stand he said more than once he wanted to see cross examination let's have them cross examined and let's get findings of fact let's let you make these credibility of terminations on the experts and then we can get a ruling and that's what we were requesting of the judge indicated he didn't have time to hold an evidentiary here once and we do that a month from now because the injunction is already been in place for two months why can't we do it in a month because then there's a trial and then the judge has to make a decision after he hears all the evidence we don't know when that decision will be and the injunction will be in place for that entire time we don't know how long that time's going to been in place for three years and suddenly two months really makes a difference well it does because the statute says they get thirty months so by granting an injunction that extended beyond that thirty months you change the status quo the status quo with mine was going to be able to launch when the thirty month expired because that's all the statute says they're entitled to so we're not preserving the status quo here we're changing the status quo we're allowing them to have more than thirty months in to get that they have to meet a burden to have to the judge has to make findings and they have to show that they're injunction he has to make a finding on likelihood he gave you he heard you and he made that decision likelihood and you're asking us to say this was an abus discretion well an fifty two a two it's a no vote whether the findings were adequate or not not an abuse of discretion standard what's the standard of whether you objected or not well we certainly i've seen a case law that says that to preserve fifty to a have to make an objection or way that the judge has a duty to comply with it whether we object or not of gender identity the rules put on it the court i think it's correct that you don't have to object to the failure to make sufficient he really didn't say very much at all about whether that was and the consistent with industry standards as the practice that's right your honor and on the first point i do think that any issue that's raised by a party  telling services the third circuit case so if you do have to object in certain circumstances there are some cases that say that there are other cases that hold that you don't need to object and the more recent cases that we've looked  at there was no indication that a party objected or that the court held them to a standard of having to object to the findings and i would say that our request for a hearing an evidentiary hearing when the judge told him he couldn't find the facts was an objection to the judge's method of conducting the hearing he said i can't find these facts and need to see the experts i need to see them cross examine we said your honor let's do that let's have a hearing i mean you could i'm sure that your opponent will argue that what he said what in the best of all worlds i would now saying there's make you better give you a side of your head since you didn't give a sunni to look at in advance since versus green is the controlling case one sixty one up second eighty seven the third circuit and it says when they're disputed right we didn't cite a third circuit case on this point we cited other circuit which is kind of important as it is and we realize that and it's why i'm prepared what are the signs or says green is one sixty one f second eighty seven in that case says that when you are hearing a pulmonary injunction and there's a dispute as to the facts the court needs to hold a hearing and shouldn't rule simply on the papers and that's what we requested once the judge made it clear and judge  analogy or comment at the very end of the hearing the judge said i have submissions galore and it's really gotten down now to going through them without seeing these different experts you know it's really very difficult to make final determinations and i'm telling you that at the end of the hearings how  case it depends on whether the case is tried with mylan alone or with the other defendants that are consolidated with this case for discovery purposes as a smiling alone i would say the trial would take somewhere between five and seven days if it's with have been very similar but the injunction was imminent because the issue was imminent because my own thirty month stay was expired but my line doesn't even have a problem my understanding from the f d a is the only impediment to approval is the existence of as to the need to make an objection i would get around the ninety six and the eighty four case you're going to cite me to forty seven on your honor as we did object we asked for a hearing we said judge you need to find the facts and if you need to hold a hearing to find the facts and let's have a hearing please the court the key issues on appeal are whether the core district court's findings of fact on infringement and harm are clearly erroneous will there because there's a there's a question as to whether he should have had after the district court said i'm going to grant the p i and then mylan says well now we need an evidentiary hearing at the school hearing like what forty minutes or so it was about an hour and it wasn't clear at the outset whether he was going to consider it as a request for a t r o mary john wright well i think at the outset that there was some confusion on that point your honor because we asked for a contingency yarrow and the reason we asked for that was because the thirty months day was coming up and i not like other patent cases in this very important respect most of the time a p i's filed at the beginning of the case no fact evidence no expert disclosures and the cases the p i's come two and a half years into the case and at that point the evidence right generally as to the validity of different kinds of tests medicines and morals and shows that was a conflict in the well actually with regard to dr davies said what was the reply and i don't believe there was a much of a conflict on dr davies testing as anybody as as my own tries to make out and if i may i can explain why reasoning i mean i've read the experts isn't that he says my methodology is good the other experts say it's not but interesting they say it's not but when we get to the science of that to think there's really not a dispute dr that what this all has to do with the humidity testing and dr davies did the humidity testing to show the layer over down underneath the enteric coated more clearly and winning good for he did that testing he ran a suggesting that if you go below that conclusory argument and look at exactly what dr davies does milan experts don't really dispute the science of dr davis testing dr elder in fact said yes the dark patches that he elders testing of putting it out for five minutes defeats the purpose of stop detainees testing in the first place which is the show the relative difference between the ingredients so if one ingredient is really hygroscopic it'll change color quickly if you leave it for five minutes the whole tablets eventually going to get absorb moisture so that's sort of the fact that after five minutes he's got a different display that image is not all that unexpected given the length of time that's why dr david provided i mean arguments for finding the facts you're away the problem is that we're not here to find the fact that with this report this was right in the district court considered all those facts in those declarations and like i said before those declarations reflect the trial testimony we're way beyond the initial stages of the case so the district  we previewed what the evidence is going to be and said that plain to show the likelihood of success and he left open the possibility that at trial on cross examination that maybe he could change his mind that's exactly what this court is instructive discourse to do to keep an open mind that later when you go to a full trial that perhaps your your views will change on the issue that said that at that time he was ready to keep the case up for trial and it sounds like you're saying that you still think it's going to be january not december yeah i think he said december or january and i think we're essentially mostly done with expert discovery at this point and i think as a practical matter given all the pretrial work that has to get done that it's much more likely to be january than december you're right that the giants would have had the option to take combined with americans saying you're going to trial and they already are right he could've taken that option i think that you know he decided not to that he thought he saw enough evidence through the declarations to get a firm handle on the issue of infringement and he agreed with our experts testing any and quite frankly he also looked at my lens testing you know my lens testing he looked at all the images of the decorations and it's very clear that the key evidence they rely on both dr elders and dr ever all are out of focus and does not reliable and so it wasn't like the district court didn't review all the evidence he clearly had reviewed all the evidence he asked very pertinent questions during the hearing and he actually asked milan to tell them why he was wrong you know most of the hearing you're on you're right about an hour but most of that was milan trying to convince the judge why he was wrong on infringement and also trying to convince the judge why he was wrong on harm and during that argument my line at the end and i think you mentioned this earlier on or about that there was a little confusion and what he really was saying there is that if you have other evidence and this is at fifty eight fifty nine in the record if you have other evidence bring it to me and i'll look i'll look at the injunction again and mylan didn't say at that point oh i need to look you need to look at this invalidity argument are you really need to look at this migration argument or by the way the public interest you really didn't deal with that my mind never said anything about that the district court was open to hearing that fact finder and said i see plaintiffs x witnesses experts evidence and i see defendants plaintiff's evidence makes sense to me the defense expert evidence is not because i see these flaws i can see it with my own eyes i would like to raise on the issue of harm again it's a question of whether the findings of fact were clearly erroneous now milan has said to the district court and to this court that they anticipate having at the final f d a approval by the end of september is because of this injunction and quite frankly that's not typically how the f d a works in my experience so what are you suggesting that if the injunction removed is so limited oh yes your honor that there's been no harm to my land that they couldn't sell their product anyhow and even if the injunction was removed there's no evidence that they would get approval now they would get approval eventually probably they have kind of approval and potentially they would get approval soon like in a month or so i don't know i can't that is a good rule and you would be harmed either correct but the problem is that we don't have control over the f d a when they granted approval so keeping the injunction in place is very important on the off hand that they actually get approval before we go to trial so we can maintain the status quo we don't know what's going on at the f d a from our point of view it's basically a black box and that's really between milan and the f d a and frankly i'm not even sure that my mind knows exactly what the f d a is doing i mean the f d a has their own regulations that they have to abide to so keeping the injunction the place is really critical at this point but on the flip side there's been no harm to milan there's been no harm in the last two months and you know there's there may very well be no harm in milan even as we go to trial depending on what happens at the f respect to the trial date expert discovery was supposed to be done yesterday it wasn't the plaintiff had some issues and it's not completed yet so whether there's a travel even in january i think is a is an open question and when the judge ultimately decides after the trial i infringement many trial and infringement at that relates to the pm i anticipate the judge is going to have a trial an infringement invalidity and like i said the question also about scheduling other two other defendants enjoying the cases for discovery purposes and it's not clear to us whether the judge intends us to try our case separate from them or not we would certainly prefer that what happens more quickly we have no insight on that new court hasn't given us any insight on that that's a much longer trial with several more case as far as their being disputed facts really is snake you want to separate trial from the other co defendants that would certainly help if this injunction is going to stay in place obviously we prefer that there be no injunction but if if the injunction is going to stay in place and certainly need a quicker trial and for separate from the other defendants that's certainly one way for that to happen the disputed facts we don't have to debate whether the facts are disputed the court the least three occasions that it couldn't find the facts on a sixteen the court said because i'm not in a position to say which of the experts are more credible and less credible and it's going to come down to the experts in reading it is one thing hearing their testimony subject to cross examination is all well he said it and then later he said he kind of backed off of that he said i have submissions lawrence really got down now to going through them so there's some question about how much of it the court actually read the court sort of conceded it had gone through everything get  proceeding but isn't this the district courts call when you get your trial in now you know we want to be able to launch our product when the statute tells us we're able to launch our product regardless of when the trial if that's what this is about  we are i'm not sure to be perfectly honest i got involved in this case in april but it's not clear to me why it's taken so long it's not clear why the expert discovery wasn't completed yesterday i think mr carney might be able to answer that question scheduling issue as well just to conclude understandings you shouldn't even mention they're not on the record we need is some record evidence which you have provided on that that's the relief of my request thank you very much thank you