have jurisdiction that and everything you're wanting to talk about is probably not relevant for our court so could you start with jurisdiction and in particular i was really genuinely surprised that neither of the briefs addressed the  court case of gun vs mentation which has to do with patent cases and the arising under language particularly instead you all rely on a bunch of earlier federal circuit cases that support the idea of jurisdiction to some extent but i don't know how after the supreme court's recent decision those decisions could still control our resolution of jurisdiction in this case so i'm hoping that you're familiar with  that the reason the gun first as many would not require a transfer is that the walker process claim is differentiated from the malpractise claims that set forth the gun vs midden case and this court has traditionally recognize that in this case involving a water process cause of action a substantial question of the cause of action separate apart from a legal malpractise cause of action which may involve a patent type of a cla i don't understand gun versus mitten is malpractise and the malpractise was predicated and part on walker process here it's a sherman act section two work late next i think section four violation that's predicated on walker process i'm not sure that i understand the distinction and certainly if this case for example required me to resolve the validity of the claims that issue which can be an important component but i don't have to because the patentee disclaimed all of the claims whose process with regard to the claims that were not disclaimed well your honor with respect to the allegations claims not just the prosecution of the claims that were ultimately disclaimed i don't know but i really don't think i totally understand it is certainly true that a finding of an equitable conduct renders the entire patent unenforceable but this seems like a pretty simple case in that i don't mean simple from a walk or process standpoint to be clear but i mean simple in that you had a bunch of claims that were invalidated by a jury you had a continuation pending at the p t o and the examiner allowed in some cases verbatim identical claims in other cases what are cannot reasonably be argued as anything other than broader claims than that which was invalidate those are the claims you've  one claim either way a finding of fraud in the patent office which is a more potent determination than simply an equitable conduct would render the entire patent on it forcible so it seems it seems to me that nothing that is going to be resolved in this case requires me to decide any specific issues that affect the future validity of any individual claim because they all stand or fall together here and there is an not during prosecutions somebody didn't disclose something they shouldn't or made a misstatement and therefore secured a patent they really ought not to have rights to look at the difference it is your honor it's not your right every walk or process claim what tolerate parks was a jurisdiction i mean it sounds to me like you're arguing all walker process cases have to come here because they involve the patent i guess well the you know is that what you're arguing well traditionally the case law has said that are walk or process cases in the region sort and they but they they've said that we don't have exclusive jurisdiction so you're both equally urging us to create a circuit conflict don't know you're out of the and the distinction if we go to like the little court case for example which involved the variety of different walk across was actually for a variety of different causes of action that involve water process theories and involve other independent theories by which the antitrust claim it was asserted in connection with the walker process claim can be sustained then you're right that would be a third circuit case or a second circuit case but to the extent that there's a single soul plane there's a water process claim look at core and the other cases supplemental jurisdiction over all of the other claims right i mean isn't that the way it works you are in this court would have jurisdiction over claims that were it would apply the regional circuit block to other cases but the point is for purposes of voting twelve ninety five if there were multiple rounds and that's the goal but that twelve ninety five expressly implicates an act of congress in the patent office space and you've both been unequivocal that this is a section two sherman act in a section for claiming  claim i didn't see the citation of any patent statute anywhere below or here well and that's because if you look at the well pleaded complaint the well pleaded complaint invokes a question of patent law separate independent of an act of congress and of the act of congress that address patent law the and that's and that's why we're back to the remedy and what will be tolerated in terms of what happens with respect to the conduct before the p d f i do want to ask you just quickly a couple of factual questions which go to the for was there any explanation given with the judgment that would explain this judgment and results in a validation of claims that are similar to the claims issue from a parent application was there any explanation given along with  also prior art attached at the exact same time was it buried how much prior art how many tell me where tell me where precisely i can find the list of everything that was given and is it just one final i'm wondering look we  have to one of two things happened here either the examiner behaved in a slightly irresponsible fashion didn't look into the final judgement now mind you the final judgement just says invalid and the and the patent claim numbers it doesn't give the details it doesn't demonstrate on its face that the claims that were in fact invalidated are identical in some respects to the ones pending for that examiner but still the exam or should have had the responsibility of going behind and looking so one of two things happened either the examiner j get in and get a blast i know how the world works what i'm asking you though let me be more specific was the very i know when they submitted the judgment they also submitted additional prior art at the same time and then the examiner went off on a lark and rejected the claims under some additional prior art and completely seem to the be as to the judgment so i'm wondering why how much stuff was submitted where in the record can i find this submission this request for continued examination so that i could understand what it looked like to that example of the you're right if i can't say that it was buried with it you know ten thousand pages for example of some of the other places what i can say though is that when we go to the know how many i'm asking a specific question where can i find the submission where this judgement was given to the p and found a final judgment or the examiner have the authority to allow claims that have just they're identical on a continuation applications the spec is the same priority dates the same how so taking your  i mean how did i think you said that the examiner could have the power to do that but how could they have said were identical i understand if they're not identical then there may be some wiggle room so but is that the particular second case and blunder time recognize that one example in which it might not be fair to apply collateral estoppel in a follow up case is when the first judgment addressed obviousness without a common ground for factor test now one point raised on wavelength range with those devices with the judge did not find was that anybody had in fact ever used that wavelength range with the device or that the operator six one patent in fact disclosed the claim wavelength range of with that device but if if you disagree with the district court judges conclusion don't you have to kill it to us you can't collaterally attack it by submitting the same claims back to the pap office i agree with that and i don't believe because of the phrase substantially maximized in that it was office and so looking at the restatement of judgments is treated by this court in the supreme court it's hard to conclude that caylee had any incentive to appeal that anticipation finding out that judgment would it would also have to overcome the hurdles of those other two of invalidity finding so it's not i'm not saying that on the merits these claims would survive a court applying collateral  every walk or process claim necessarily should be heard on appeal in this court and i think that's not what christians and said it's not what the cases that we've cited in our circle briefing have said the issue is whether law issue that we have to decide correct and the way doesn't i mean i don't understand how you get out of that the conclusion then that the federal circuit doesn't have exclusive jurisdiction because walker process is always based on a problem the patent office that's correct your honor but it is not the case that every antitrust claim necessary not talking about other antitrust claims we're talking about walker process antitrust claims and whether you think they're within the closer church structure of the federal circuit if that walker process claim the complaint so let me if you're not answer my question is there a walker process antitrust claim standing alone that you think could go to a regional circuit on appeal yes with the caviar the water process is not in itself an antitrust claim rather water process it is one theory under which a patentee can be stripped of its protection from the antitrust of water process claim it's a back up a little bit and just more specifically why i don't believe that necessarily means that every walk or process claim should be in this court if you look at christians and it's why not i mean isn't that an element of the walk ask so if you think that the but for element is a question of how the law then every i mean i it seems like that would help your argument so but i share the court's concern with reaching a conclusion i don't really have a concern if it's in our exclusive jurisdiction it is and if it's not it's not i just know that there are regional circuit court cases out there that say it's not within our exclusive thing and i don't want to create a circuit pocket if i don't have to do so in gundy mitten certainly suggests that so again your honor the the issue that i have with your question that makes it difficult to answer is that walker process is now a self antitrust case i mean it is one theory towards an antitrust like bill i know i'm using in shorthand but i think the theory of after i trust a lot of villainy based on walker process always involves fraud on the patent office that's correct and so is is it the case that if that theory of antitrust liability is invoked then it has to come to us even if there are other theories of antitrust laid out in the case so in that circumstance i would say no and that it's the distinction between a theory and a claim if every claim in a case necessarily depends on the resolution of the water sorry that's ok i'm not trying to embarrass either quite the contrary if you haven't read gun versus minute and then we need to have a dialogue at a later time are you familiar with the case or did you come in here not familiar with it and you're sort of just trying to point out and i'm not trying to embarrass you but nobody raised it in the briefing so if you're not familiar with it just tell me yes you are you are going to leave didn't reason to believe it but you're familiar with it  discussing gun vs mitten don't be embarrassed were bringing up a case that nobody raised about jurisdiction the question nobody raised so if you're not familiar with that that's fine then what i'd like to ask both parties to do is as long as my colleagues are amenable is to submit a letter brief limited to say three pages by friday that addresses gun vs midden in particular is that ok because i don't want you to feel like you did your client a disservice because you couldn't address specific questions on the point because i will tell you i think on vs midden controls in this case so so you're got a hurdle to overcome but you know so so why don't we just let you do that is there anything else you want to offer three pages single spaced out so i think the documents where was aware of this judgment was aware that all the new claims were being pursued were already found invalid and went ahead and just issued them anyway is that a walker process violation i think it is under these circumstances from where is the district court not relying on a misrepresentation this presentation your honor is very simple with respect to the fact that once the forty one pad was declared invalid and it was not appealed kalay had no good faith basis to continue the briefed by five o'clock friday no later