which discovery is looking into five regions highly confidential and effectively the crown jewels of the research and development efforts over more than a decade representing hundreds of millions of dollars and of extreme benefit to anybody who happens to go in and find it both the good and the bad results that are found there and there are really three grounds that we're looking to reverse that decision on the first is an issue of first impression is whether a key even has standing to bring the application that they brought to the district court the second is whether to international or foreign patent it ministre to proceedings are quote unquote tribunals under section seven hundred eighty two and we  contend again that this is an issue of first impression and it's an issue in which when you look at the intel facts at the intel case and you look at the what is a tribunals under the case law you'll see that these proceedings are not tribunals under the statute and thirdly we're looking at the issue of abuse of discretion by the district court in the consideration of other discretionary factors and the discretionary factors here are very important and are really a big part of the statu we don't know what he actually may have considered but he did not consider them in writing he did not consider them on the record when then chairman is there for him to issue a written opinion has distinct from reading all of your materials thinking about them and telling you what the answer is i say i declined to consider the discretionary i believe it was  discretionary factors or any other discretionary factors he's saying i'm not going to figure out what types of evidence they would consider and didn't he also say in some oral discussion with counsel that  question for me is not what will they admit the question for me is whether to order you to produce it to the other side and to  enter in a protective order to protect the very kind of trade secrets and confidential information you're concerned about and if and if the key b a violates this protective order they'll have me to answer to regardless of what kind of evidence those foreign tribunals will it isn't that really the state of the record well i think your honor i think partially part of that is true i think he did analyze part of the burden issue and we did have protective water issue which still doesn't go far enough but we still yesterday and don't we presume unless there's clear evidence to the contrary that the court has read and considered and dealt with everything that is brought to the court's attention your honor i think that presumption can be made in some instances but i think this court needs a written record just as the parties do to understand how the exercise of discretion is occurring going back to the maxwell case there were statutory there are factors related to attorneys fees and what happened is the court just granted attorney's fees without looking at the factors without providing a record in the court actually did novo looked at the factors and made determinations in lowered attorneys ward in that case the same thing should happen here this court can look at the record and make a determination here and actually determine the five june should not be producing this information but really when we look at all of this it goes back to the issue of does the key even have standing to be here is article three standing your honor this is really a case of controversy issue because you have at this point in time give a very there is no injury in fact that a q b has or suffered has been able to ensure it has because it needs the information and it isn't getting at all that's isn't why isn't that a statutory injury when when the statute says if you're an interested person you get this information and they haven't gotten that so under the statute they been injured and they've been injured in the real world in their ability to deal with this patent or that's being made your honor i think when you're looking at this idea of a statutory injury i think congress's intent is much more clear and says actually you get an injury you get a cause of action if these things don't happen here that's not the case and there's no right that a key be has to discovery they have a right perhaps they don't even have a right to discovery at all they don't have an injury in fact they can't even be in the court to begin with when you look at this you know the idea of injury in fact looks at what's the harm to t v s in the proceeding that we're talking about to keep it doesn't have any skin in the game is the way we put it different times they don't have any like you could just ask of sort of yes jump in but one thing that i don't understand about your article three argument is you you seem to say that it would not apply if the request comes from a foreigner international tribunal and i don't understand how we could read the statute to require injury in fact by the foreign tribunal but you know in order for go through to apply so maybe you just address that component of the statute even though it's not a vision well iran or we did foot out that and i think it's really is a investigation to go to a criminal a pending criminal action or there's a pending criminal action or the court has a proceeding before those have been the situations in these cases all of them would actually implement the idea of having some sort of standing under my theory iran or it's looking at the state's interest in investing geisha in prosecution of a potential in you know potential proceeding in the future or an actual proceeding that's ongoing and so the case is how does the tribunal under your theory any differently proceedings they don't lose the right to challenge validity at some later time they're just in a position where they don't have a product in the market they have no there's no hint of infringement there's no hint of an infringement action but if they have brought in i don't know what tribunals would be but let's say it's different have some substantive rights at stake because if they lose they'll be back down perhaps by areas like rest of the cotton the thing lie haven't you they were the ones that initiated these i don't know if they're called opposition proceedings or what it's called the other one right but they're the ones who initiated this per se did initiate these proceedings and anybody can you can i can anybody anywhere can just like we can in the in the patent office in the united states but that doesn't necessarily give us standing to do something beyond that these are ministry proceedings like going to an article one agency and it's the same thing here and that's what he has done they've gone to effectively what's in article one agency in europe and in japan and so you end up with a situation where they really don't have any skin in the game they may want to particular result but wanting the results is not the same thing as having an injury in fact which is necessary for this cause i see i have almost no time left on my right that's true but we'll give you a minute or so when the time comes yes we've used a lot of your time with questions given more questions for right now not right now ok thank you  it please the court laurence rosenberg for a key via the district court correctly and reasonably exercised his discretion in ordering discovery in this case fiber regions mostly novel arguments on appeal are contravene by the statute the law and the record turning first to the factors i think the court explored this with opposing counsel the court did hold a hearing all of the relevant factors the intel factors the statutory factors that were at issue  discussed the judge asked counsel questions about those factors and then the court concluded based on its prior colloquy that this the factors that were satisfied in that in his discretion he was going to order the discovery there's nothing wrong about that there's no requirement that he issue a written decision and importantly in seven hundred eighty two cases there is sometimes great urgency i've been involved in cases where there was a hearing occurring in three weeks in the foreign tribunals and it is often important for the court to be able to act quickly and so a written decision requirement i believe would be contrary to the purposes of the statute in some cases and you guys do i see this the why wasn't that the district court required to give more weight here to and intervene judge why for the way that factor has been applied in the case law and i would direct the court to the her a yes case from the seventh circuit in the third circuit the tons of case from this court previously is that even if the party is part of the proceeding if that proceeding doesn't have discovery procedure simply because they didn't think to implement them or it wasn't part of the culture of the country where the proceeding is taking place that there  isn't a sort of weight against discovery in those circumstances the fact of the matter is there was expert testimony presented to the district court that there was no procedure any of the e p o where the j p would actually get this discovery but that receptive to it there was nothing that prohibited it and in fact by the way since then the e p o has actually accepted the limited discovery that five region did produce in the seventy two cases these were documents about an ownership issue in the e p o case that was presented to the appeal a few months ago and that has now been docketed in the e p o so it's accepted that evidence but there really is no procedure to get this in either of those tribunals to give you an example in germany which a number of the seven hundred eighty two cases involve has very limited discovery procedures but nonetheless in the rarest cases discovery was ordered it was provided and in the frankfurt court of appeals this past summer the court issued a decision in harasses favor based almost entirely on the seven hundred eighty two evidence even though it doesn't really have procedures that would allow that work would provide for that evidence to be ordered by the court the statute says that the district court may order production of documents or other things for quote use in a proceeding in a foreign tribunal so that's been debated to mean even if there's no evidence that it could actually be used that it should sort of authoritative proof standard that came out of the euro made in the left cases in the second circuit that unless there's authoritative proof that the court would reject it it should be ordered discovered and i would note that there are a couple of instances where that's happened in the schmitz case  a german prosecutor sent a letter to the court and said this is evidence related to an ongoing criminal investigation please don't provide it because it's going to mess up my investigation and in the loop tons of case in this court the german  court in that case had specifically rejected a request for the document issue which is one of the documents within the limited discovery provisions of the german courts and in that case that was a sufficient basis to deny discovery although there were other reasons let me let me ask you this just when if we go back to the passage that your adversary pointed us to from the district court proceedings i mean the court expressly said i'm not going to try to figure out whether this evidence that your client is requesting would or would not be admitted over there doesn't the court at least have to make some you know pullum unary determination at least this is within the ballpark of what they would take i don't think they have to do it in in writing or expressly do it i would note that if you look at the record prior to that statement the court did specifically ask counsel is this going to be admitted should the lack of shouldn't the lack of these discovery procedures indicate that the court's not receptive and counsel explained in detail that that wasn't the case  and there was pretty overwhelming evidence i think before the district court that there was no proof gathering restriction that there was no reason that the court would not be receptive to this and as i say as we now know the e p o at least has accepted the information that's already been provided it's a it's the one piece that vibration didn't resist in producing so i think that whatever requirement there is for the court to consider that it was considered here i certainly don't think there'd be a reason to remain and to state explicitly what the court clearly was doing on the record so i think that you know while the intel factors are not mandatory i think the court was correct i do think the court in fact it consider every one of the intel factors when you look at the record and i think given that it was a proper exercise of discretion and there's no basis to reverse on on background if there are no other questions on that i'll move briefly to the standing argument did did the district court consider the argument that this was an overbroad and burdensome request and very very costly absolutely i mean the court spent ten pages of the transcript after its summary ruling talking about that with counsel and then held a second hearing to go over this very strict protective order the court considered an a submitted by fire engine about the cost and found it not credible because of certain statements in the affidavit but nonetheless work with the parties to significantly limit we believe the discovery requested really the discovery that's a issue is test data and opposing counsel made some comment of this is the crown jewels of the company they were submitted the positive test data to these bodies the question is that for a number of these compounds or billions of compounds that issue they have data that shows that they don't have the claim biological whether it's a crown jewels or not the protective order is designed to prevent someone else from making use of the ground absolutely and the district court made very clear that he was going to scrupulously and stringently enforced the protective order with respect to the standing argument first of all this is an extremely novel argument and this is never been accepted by any court and i think there is good reason i think judge graver you've made the point that they're standing because this is an informational statute seven hundred eighty two fight region refuses to provide the information so you have a hormone the lack of information the causation is that if i were going won't provide it and the court can redress that problem by ordering the information provided there's nothing more that's required for article three standing i think it's very clear that in this case what this really is is sort of a dressed up for eventually standing argument and there they never challenge to keep his status as an interested person in the district court and keep just plainly an interested person in tell the court make clear that if you are have participation rights in a foreign proceeding you're an interested person and not only  i couldn't walk in and ask for this information because there's i have no interest in anything it wouldn't matter so there has to be some connection right and the work is done by the statute right have to be an interest court here to get the discovery you do have to demonstrate that something is you the right to it and it's been withheld which is what so you know that's apart from what you might have to show with respect to that tribe you know yeah exactly and and if the courts concerned about this we plainly have a real stake in this proceeding not only did we bring it but on page seven of the five regions opening brief they state two things they state number one that  compounds are within the class of compounds that their patents claim and then number two they say the reason they've gotten these patents is to protect their patent portfolio i mean even if the reasonable apprehension of suit tests that was the test for declar let me if i could just start at the end of this standing issue it's clear that a key is looking for a vast expansion of the standing rights under section seven hundred eighty two there's never been an application to a proceeding like this to the  other patent office proceeding going on outside of the united states and i think when we look at standing and we look at what a key role is in that case they say there's an interest they say they have harmed there is no harm they could not do a d j in the united states they couldn't do it judgment action anywhere else in the world so i think the idea that they have some injury in fact is just not there and we also have to look at the tribunals itself and these tribunals are unlike the intel tribunal where they were looking at something that actually impose fines and penalties and bind the parties where a m d was actually in effectively as zone of danger from the any competitive conduct of intel the net effect here is in the e p o proceeding the only thing that the administrative offices of the e p l in the j p can do is to effectively say that five region does or doesn't still have the property interest that expands the full scope of the climb doesn't affect the key at all they don't gain or they don't lose i see the