this dismissal was prior to any discovery it is our position that at the very least by the time of the southern district of new york and the federal circuit had told  t's they were also in contractual relationships with procter and gamble and others and they were protecting the market and we have well played kill us alleging a conspiracy under the new trust laws of these certainly nothing in our brief that is specifically addresses that point i don't believe astra zeneca has challenged that point there's certainly nothing in professional rules state the that would indicate  discovery when they find from the get go they knew it was baseless look at what was motivating here they were protecting a six billion dollar a year market they sued each and every attempted entrant into that market for patent infringement whether they won a lemon of those eight out of the eleven right that's correct that's correct the infringement if you will the statute actually uses that term and there on that basis isn't it objective lea reasonable to sue for an infringement which is  by statute may or may not be depending on what the plaintiff knew at the time they filed the suit your owner's got to recognize that this was part of a goal will litigation literally hundreds of suits must take  triggered by the statutory infringement you'd have to sue because there's a time when it's like a glimmer you lose everything if you don't you have to sue and then you could get into discovery and find out if they have an we cite the teller we case from second circuit in federal circuit lepley premis judge joel's in presenting her with all the material opposing the summary judgment they say your honor well these things may be true at anybody else in the entire work i will agree she had more familiar with these products than the infringement issues and validity issues than anybody else in the school room over from mr taylor perhaps she got it right or the infringement issues but we're talking about the any trust issues she did not have a factual hearing on the unit trust issue we did not have discovery on the on the in the trust issues just on it so you're knowledgeable position on this case and it seems quite clear to me that if we were to give you what you ask or he's going to reach the same conclusion it's just going to cost all the clients a lot more money to get there so i don't know what the point there with all respect  consider all of these things that i'm considering and but i don't think there's any basis for discovery that would be a discretionary determination but there's certainly basis to know what ask remove about their product and when they knew about it it's very interesting your  or not one shred of evidence was presented in a three month trial showing that the finished product sold but none of them contain an alkaline reacting com since that's true because look that was the case if i may give you a little background because there was the first wave case which went to trial discovery in our case we stayed for a couple of years  when you when you were able to you may save  do is refer to judge jones very detailed opinion for ninety f subsecond pages for twenty four to four forty seven twenty three pages worth of twelve he says you have to as you have to look at whether they're pleading is plausible and in this context what the court should look at and what judge jones looked at is whether there is and there was an objective basis an objective litigant would have understood throughout the course of this litigation that they may prevail at the end of the case that missions you have to go outside  well that's a good it's a good it's a good point you're out of there is no question that the court was intitled to look at the district court decision what the case law says on this issue is that it's clearly permissible for the court to rely on the things that are put it or cited in the pleaded well the district court opinion clearly cited it in my mind's pleading it would be a fine like judge sim stated that when a party has survive summary judgment that's a very very strong evidence that the case was not a sham and in this case it's even stronger evidence because of the used by a first weight defendant that was found not to infringe the raggett that point at the summary judgment stage but that the courts say they said that it astra zeneca was entitle to again prove that the particular just cited from the the district court decision contains the judge's consideration of the evidence that astra zeneca put on on both those issues and remember judge jones in deciding to dismiss lands allegations of sham litigation said that this was a close call but her decision ultimately went to the same this is absolutely not these issues were had been on notice that it would not prevail in the litigation when we had been prevailing on just about every issue throughout this entire proceeding until the quick enter its final decision when milan made  premature astra zeneca isn't titled to get samples of your product before you're entitled to somebody judgment and what i look at there i give them the same arguments that they're making now tom precluded h p l c they provided samples in two thousand and three astra zeneca gave my lad it's testing evidence on those samples showing infringement in two thousand and four with this expert's admissions so from two thousand and four milan had believe that its theories would not have been considered by the court and have a chance in fact we thought we had a good chance of prevailing at trial so  well we do believe that there is there is support for the position that a little bit who perpetuates the case knowing that it is baseless may face liability for the sham litigation now myla didn't put any claims on that and it's in it in its brief but but you could but i could but i would not surprise me if there case law on your honor on that point we did we did not we did not challenge that point mr wallace's that's correct on that but this case is not a close call on that issue it just simply is not mine and if in fact concedes that them and therefore they committed a violation that doesn't that doesn't mean they are risking their obligation to show under twelve that this pleading was plaus subsecond five eighteen five nineteen and if you look at those arguments compare them to the arguments made by milan they are somewhat similar kettler said the pad he used talc no he use in the first way talcott not been an issue and get back to kevin kevin or said that because of meddling mean was not described in the patent as an a r c that their their every other element in the claim and mylan challenge some of that was that it was an overly outline reacting compound they were arguing they were are going to that they also didn't meet the subgroup coding limitations they didn't have we didn't were able to prove prove in hand stability there are other arguments that they made are not infringement that we prevail now just because you lose on one issue and there are many many issues in this case doesn't make this a sham just because you use on one issue after prevailing on that same issue throughout the entire course of the litigation doesn't make this case and it was invalid it can act as yes there was through on t v a was supposition that it was used in uk upstream process despite all of the other stuff that goes on it must survive they had a machine that could measure t e a into the