feed their different arguments see how short the the the only real difference is the standard that would be applied to the application of collateral stoppel which says a full and fair opportunity for the issues to be heard which is not the same as the seventh amendment but it would allow the court to find on a different basis as to the california case which is even if you don't agree with me that we have a seventh amendment to have the jury decide our knowledge and intent in bringing to an issue that was never before the trial or a fact and that cannot be decided by the court on the basis of things that it sought conduct during the litigation then you could still find that we did not have a full and fair opportunity to litigate the issue because of the way with the way that was presented even if it didn't violate the seven  it seems to me from our discussion and surround you were allowed to present a declaration and any kind of argument than actual evidence you wanted to in the two eighty five receiving and that goes to judge newman's point which is  the question the chasse i'm sorry which is that during the two eighty five proceedings in the avid case the issue of our subjective bad faith in filing the action in the first instance was never was never squarely before the court the court made a finding on that issue what the parties really litigated was you know other other aspects of two eighty five which the court did not find warranted exceptional case actions there was never a rule eleven proceeding here there you know this conspiracy involving there's no discussion about aid in any of the briefing or the hearing or the like well it was about this conspiracy it's about this story this sort of pale involving dr hardy and then you might have an argument as the collateral double but i don't hear you saying that and that wasn't my sense of the record it seems perfectly clear that everybody knew what was being decided here you had the opportunity to present argument and the my understanding of the record that the that the issue of our substantive bad faith in filing suit was not the issue that was litigated it was more this issue of you were involved in a conspiracy with dr hardy and dr mullin to deprive imperial college of its interest and to deprive us of its interest and that's what was litigated that's why the evidence about  are that you weren't given that should have afforded you more process here and i don't understand what it is well they just basically resubmitted the briefs in the california case ok but that's the california case i'm arguing that the california court mistakenly decided that we had a full and fair opportunity well that's what i just asked you where in the record of the other case did you make an objection rip asked for  different evidence say this argument wasn't raised or anything like that either in the briefing or the world hearing or the like that would show that you thought you were deprived of the full opportunity there a i  that the court made findings that went beyond the scope of the jury's drawing issue ok if you lose on that that's what i'm trying to get at in your argument hinges on the seven and then that issue well it's not just the seventh amendment i mean it's also the fact that the opportunity to litigate the issue was clouded by the fact that there was findings of conspiracy and we were lumped in with these other bad actors but the court never parse that out and the jury never made those findings the jury's findings were very simple the jury made findings about that we were there was a co inventor it was john hardy and that us that did not make an informed waiver and that was the issue that was being our view to the jury has nothing to do with whether we brought suit and bad faith and then in the context of the two eighty five proceeding the discussion is about i mean they've repeatedly talked about a sordid tale and it's about that conspiracy but that conspiracy is not the basis for a finding that a knew that it had no valid patent when it filed suit because we were different than the other members of the coke and other conspiracy that was never found by a fact finder we were not a scientist we did not participate in all that we were not a lawyer we were advised by counsel and so navigating this complex world of nucleic acids and informed waivers this businessman relied on those issues and filed suit and he found a lawyer willing to take a case  on a contingency and not just any lawyer bryan cave you know i think that speaks to the fact that we got kind of swept up in this current that involved all these other people and importantly because we were deprived of our seventh amendment rights and because the process that was followed in the district court never really squarely put the question of did you know a i a not everybody else but when you filed suit that your patents were invalid not withstand the fact that the inventors were telling you that they that they one was the inventor and the other was not not withstand the fact that the lawyers said that us that wave not you know nonetheless did you know as a factual matter that you had no legal right and that and that's what that's what went wrong here thank you morning honest please the court i'd like to begin by responding to the argument just made by mr buckley suggesting that it was a surprise to a in the underlying eastern district of pennsylvania case that the issue of its bad faith might come up in an exceptional case proceeding just based on her view of the record it's clear from the a was the evidence at trial and involved both doctors hardy and dr mullan in this conspiracy dr hardy some twenty years later turned whistleblower but dr mullen who again mr buckley characterizes as  scientist not involved in ai that's a misrepresentation for years mullin was in fact that she scientific officer of a i a and he worked together with mr saxton not just informing a i a but in carrying out it activities and bringing suit so mr saxon is about as far as ai is about as far as you could find from someone who was you know led down the path in fact he was the one leading others down this path of conspiracy in order to defraud a university and a biotech company from the rights they didn't vested in but turning now to the issue of not only was the issue of bad faith squarely addressed but in the abbott appeal a i a argued that there was no bad faith in bringing suit that's at appendix thirty eight fifty three and in the appendix in our joint case before the northern district court  we responded in at appendix eleven eighty six so the issue of ai is subjective bad faith was squarely part of the exceptional case proceeding and as mr buckley conceded during questioning and i had every opportunity to submit evidence in the exceptional case proceeding before the pennsylvania court so turning now to the issue of whether or not the northern district court  the issue is did the northern district of california court error or abuse her discretion in applying collateral estoppel and clearly the answer to that question is no it is undisputed that the first three requirements for collateral are stoffel are met in this case on on the issue of exceptional case and second it argues that it was deprived of the ability to put certain evidence on during the exceptional case proceedings so i will address each of these in turn but before i do i'd just like to focus the court on the law that i'm sure it's very well aware of what it means to have a full and fair opportunity to litigate in the context of our collateral estoppel case law as the supreme court has instructed and blonder t in addition to issues like choice of forum and incentive to litigate other issues in the patent context can arise such as was the technical subject matter so be on the judge did the judge apply the wrong legal framework or was the patent he without fault of his own deprived of crucial evidence or witnesses in the first litigation and this court has held similarly it is not as this court noted in banner vs us that a mere disagreement with the legal ruling provides a basis to find that there was no full and fair opportunity good in this case chose the forum it chose eastern district of pennsylvania had every incentive to litigate their exceptional cases not a technical issue in ai it is not argued that the the relevant legal framework instead their argument is that somehow they were deprived of crucial evidence in in the first litigation and again it's important to keep in mind the blonder tongue says they must have been deprived of crucial evidence through no fault of ai its own and the simply are not the facts here so let's look at ai as arguments wanted to time first if a argues that it had no jury findings on exceptional case as this court has already recognized there no seventh amendment right to jury findings on exceptional case and in fact there's no precedent for jury findings on a fear recovery or fee statute that we're aware of but even in the case where there is a jury right on underlying again this court in a in a patent case quite relevant only the issue very similar to the issue that's now being presented by a a a party press the issues that were summary judgment had been granted on obviousness below and that was later applied collaterally and for issue preclusion in a subsequent ruling the appellant argued that it had been deprived of its seventh amendment right and that there was no full and fair opportunity to litigate because the underlying obviousness determination which is an issue that can go to the jury had been does terman on summary judgment and this court disagreed this court said we believe the rational blonder tongue extends to all prior to argument that the absence of a jury trial is tantamount to a full and fair opportunity to litigate and the law of this court and the supreme court hold precisely the opposite so then second what is a as argument a argues th evidence was improperly excluded from the jury trial and as judge hughes has commented this is a sleight of hand because the relevant issue is not whether or not i was able to put this evidence on in the jury trial the issue is what was before the court an exceptional case determination and there was and so the issue is was ai improperly deprived of crucial evidence in the exceptional case proceedings through no fault of its own the answer there is a resoundingly no it was not not only was the four pieces of evidence that i identify as in its briefing three of which or affirmatively moved by a either into evidence or argued at the hearing an exceptional case and then the fourth piece of evidence they never sought to raise in the exceptional case proceeding this is not a case where the eastern district of pennsylvania excluded evidence where a i submitted a brief or a declaration or an affidavit from the witness and the court excluded it precluded the argument the court received the evidence that they submitted he just didn't find the evidence persuasive were reasons what was the subject  certainly so there were four pieces of evidence the first was a nature article its appendix seven thirty seven it was a nature article from june of two thousand and eight the nature article  is reporting on the discovery of a new a new mutation and it's saying who discovered it and that they had just joined us so in other words this is that's one of the one of the pieces the evidence the other piece of evidence appendix seven twenty seven in appendix seven twenty nine are letters from us us department of site psychiatry chair dr anthony reading getting at whether or not us of has rights in the invention and the fourth piece of evidence that they complained about but never sought to admit was science news publication all of these this these pieces of evidence had been used by ai to argue that they did not that they did not knowingly defraud likewise there was evidence that there had been some discussion of other rights with swedish inventors all sorts of evidence was put into the record in the exceptional case proceeding before judge savage that a i had contended showed that i had acted in good faith judge savage just didn't believe it because it wasn't credible or the evidence didn't support the inferences that i sought to draw from them they provide think that's exactly right and the judge made the point both in his order and and it's never been challenged he was present for the eight days of witness testimony he was able to gauge the credibility of the witnesses he was receiving letters the letters that i was relying on were based on you know dr reading who had no present memory of having ever been informed and so it wasn't very credible to made below a finding a fraudulent intent although i think there was a basis for it in the evidence of record with the judge found is that i acted in bad faith whether or not and the judge was entitle to do that and judge was entitled to do that based on both the credibility the challenge the actual findings made by the court doesn't come in to the underlying merits proceeding and say the judge got it wrong he completely overlooked this evidence or applied the wrong standard that's not something ai has ra because there's not a basis to replace it the evidence was over well overwhelming evidence it wasn't just of dr harvey who is now the whistleblower but it was to third party witnesses actually three third party witnesses who were disinterested parties respected academics in their own right who came forward and corroborated the fact that there had been a conspiracy architected by mr sexton the principal of a all along with doctors mole and hardy and that in fact there was fraud that there was fraud in depriving imperial college of its rights there was fraud in depriving us of its rights and and there was ample record evidence if the jury had been asked to find it and then again but the jury wasn't asked to find it and then in the proceedings before the judge and i was able to put in all of the evidence it wanted to to say why there was some other explanation why perhaps it didn't act in bad faith and they put in all the evidence they wanted to put in and the judge just based on his weighing of the evidence made the finding that they did not act in good faith the thing that i knew when it brought suit that it northern district of california is just applying collateral estoppel and is not making independent finding so the relevant inquiry for whether or not there was a full and fair opportunity to litigate is did a already have the opportunity before judge savage in the eastern district of pennsylvania to put forward any evidence or was it somehow deprived of crucial evidence through no fault of its own and the answer here is they were not deprived of any evidence and the evidence that wasn't put in that they wanted to be put in was not put in at their own election and for that reason they had a full and fair opportunity to litigate and the district court northern district to be affirmed in our collateral sample rolling it's not like i've been out there all day i thank you for your indulgence i just want to point out something that you know there was discussed the jury was never asked to make any findings about a i hasten tenth or state of mind i think we're pretty aware that you that are gearing up for the last course that here to present more evidence we hear choice but any specific thing that you think you could have presented in the pennsylvania court that you weren't allowed to it's not a question of allowed i think it's a question of how the issue was framed after a you know long trial the focused on this conspiracy and this this issue with us absent waiver and the issue of inventor ship they found themselves in the exceptional case intent to bring suit in bad faith and frankly the fact that i had the same counsel advise ing it about the issues of exceptional case that it did when it brought soup you know makes it difficult for them to look back and say let's put our own conduct before the court that's relative a i a's discussions with these lawyers of brian k you know their analysis of the issues that was never before the here proceeding well it certainly was and they argued you know we proceeded in good faith dr mollen who told us that he was the inventor you know that was the basis he signed the affidavit before the p t o dr har who as they said later turned whistleblower he said for years i'm not the inventor and sexton goes to the lawyers and says there's these two guys and they have this nucleic acid invention tell me what i should do and they say hardy is the inventor mullins the inventor hardy's not you have a basis so on the basis of their advice they apply the p t o then they have this issue with us f and again he's saying how do we navigate this circumstance he goes to lawyers and they say this seems to be factual description that was the one propounded by your client in the standing trial but not the one that was accepted well in that's important your honor because this was not what this was the part that was excluded from the standing trial because judge savage said ai is intent and state of mind is not relevant to determining whether harvey was actually a co inventor and whether us after actually had informed waiver it was us sad state of mind and the facts underlying the the inventor ship that was of issue in that trial so savage said that the didn't come in and then after a time when the two eighty five proceedings did you make a request to put that information as well certainly they they in the briefing they pointed to some of these things but they were not permitted discovery they were not permitted to call witnesses it was a very streamlined proceeding if you asked for discovery proceeding in the district court was focused on the allegation that a i a conspired to defraud the p t o and conspired to you know defraud us out not a state of mind when it filed suit but spirit advised by counsel all the way and i think the point is that judge savage if you look at his opinion and it focuses on what a i a knew when it brought the action which was never an issue that was tried to the jury and never an issue that was really discussed in the exceptional case proceeding there was a trial about something else and then this issue forms the basis of fifteen million dollars in sanctions against say you know i was advised by counsel the entire time the the other thing i wanted to point out is that in again this is sort of where i think we're missing each other we're not arguing that there is a jury trial right for exceptional case in a broad sense we're arguing that there is a jury trial right for findings about knowledge and intent and when those issues are never presented to the jury when those issues are not part of the bifurcated trial then there is a momentum in a way that it's it's a violation of our seventh amendment right to bring them back and use that as the basis for the exceptional case finding against ai if it was something else if it was somebody did something in the litigation mean by all accounts this this was professionally litigated you know i was sort of on the sidelines during this litigation i'll tell you that nobody had any idea these issues were totally blindsided the lawyers of bryan cave these are very good lawyers on the other side and again this is punishing a i a for losing  and creating a situation where process wise the court can reach outside the bounds of the entire proceedings that were before it and make findings about issues that require a jury and require a peer you know jury of peers to decide whether this businessman was ok to rely on the floyd to tell him about the complex series of law and scientists about complex science nucleic acids i mean this is not stuff that ordinary people know they go to lawyers they ask for help in these lawyers told them you've got to us f waived you know the p t o heath mullins the inventor and you can file suit and each question had evidence on both sides each question had