thank you your honor tempting sullivan for multi media patent for n b c rather we turn now to a different matter from the matter we were just discussing in the sixteen twenty appeal but i want to be clear that if you should reverse and re man on the sixteen twenty appeal you should also rivers in remand of sixteen twenty one because the collateral estoppel ruling in sixteen twenty one was that we appeal from and sixteen twenty one was based on the and not infringement findings in sixteen twenty so if you reverse and sixteen twenty you can reverse and sixteen twenty one without going further but if you do go further we respectfully submit that the judicial and stubble ruling the court used as the basis for its collateral of southall ruling in sixteen twenty one in sixteen twenty one erroneous as a matter of law because the court found judicial of stubble when two elements necessary elements of judicial or stubble were missing let me start with the most important one we need to have prevailed in advancing our position in the prior judicial action here the court found that we had prevailed were actually ignored the fact that we hadn't prevailed with respect to the representative ness of the quality and that down six five seven five chips containing products just a rehash really hurt this kind in the representativeness what i see her deciding is whether you raised the question of representative ness at the particularly appropriate time such that you would even have the right to make the argument and upon that it seems you did prevail not the question of whether it's representative or not the question of whether you properly put that argument before everyone at the appropriate times your honor with respect we think she did find that we she rejected our argument for representativeness if she had accepted our representative ness argument we would have tried all the products of the same single trial your i think that maybe you misunderstood me it wasn't that she decided the issue of whether it was or was not representative in your favor but the issue of whether you would sufficiently raised that question project they didn't want to have to fight the battle so they say you're saying you didn't win but they sure as heck didn't win and i agree your honor and if anyone should be judicially a fab here it should be l j because we don't find it either party should be right what they said was you didn't give us the qualcomm source code in adequate time such that we can figure out whether they're representative or not yes but your honor the district court found formally that we were diligence and it was not our but you're correct she severed the products for another trial in which representativeness would be the issue she did not business with prejudice but that's exactly why the n p t did not prevail and represented us before she postponed representative  an issue for the second action i guess the question is did you prevail on something did you get some kind of benefit m p t one and maybe i think what the other side is trying to say and maybe what the district court was trying to say below is you did prevail on some things in what the father's side of least is arguing as to what you prevailed on yes your honor that's what the other side is arguing let me explain why it's incorrect let me start with the second point which did it did the district court imagine that this was just a one way ratchet to the severing the not m s m sixty five seventy five chips for future trial contingent on our winning first trial she did not your honor and i'd refer you to all the post verdict instances in which the district court continued to act as if representativeness or similarity was going to be a new issue respect that's not prevailing with respect to the crucial issue here the crucial issue here is are the chips similar enough that the m s m sixty five seventy five containing chips are representative of the others that's what she found lateral double when she gets to her preclusion ruling she says well there's preclusion because the chips i find that the chips are the similarity of the chip was decided in the prior case and it wasn't behind it decided in the prior case the not it's true we didn't lose or dismissal of prejudice the first time but we didn't prevail and similarity of similarity or representativeness was put off for the second action and the district court reaffirmed that multiple times and the district court also if i could refer your honour's to  a two thousand and thirty three that's where she said that representative claim charts are not proper where there are meaningful differences between the accused instrumentalities they're here on issues she's leaving open for the second action whether there's representative this year so with respect we go i guess i'm i'm not fully following you i wasn't under the impression that she has decided they were in fact representatives because if so she wouldn't have needed to sever anything direct i was under the impression that she said ok you made enough of a case for them being representatives then i'm going to let you go forward in a separate action limited to that which i think you agreed with you said earlier but i'm not go let you drag that into this case because it'll take too long and delay everything and president algae but i don't understand why you get to expand the scope of the second case beyond what she seemed to clearly limited to which was your ability to establish that they are representative so your honor you're absolutely right and i agree with you one hundred percent that's exactly what she did in fact if you look at her order on the reconsideration motion if you look at a two zero three seven note for that's where the district court said well i don't think i'm prejudiced thing m p p because they can bring their representative we can bring our representative who has claimed arguments in the second action so the second action is where that substantive issue of representative  action on the merits and l g is perfectly free to come forward and ask for summary judgment and to try to turn our prior actions against us there free to do that but it's improper for the district court to for close that there was never any determination here on the merits of representative that an elegy should not be heard to argue here in a footnote that oh maybe you should just say that the representatives of the status of the country the second expert for m p g said that there were important differences between the chips in the first section and the severed chips and you might say well how could she say that when your prior expert said oh they're they're similar and the answer really comes from judge tough judge tough said i think there needs to be more time dr richardson was very rushed the only had a week and if there is i want to provide more time for the experts the very reason she severed postponed to the second action so that experts might come to a who really examine the source code become very different in the movie were to interpret her action as allowing you to  second case limited to a stablish in the second set of chips the eighteen chips are representative of the first why isn't the case so they would i think what we ask you to do is  limited your second action to only going forward on the argument you made in the first which is that they are representative and trying to establish that why isn't this case over it would be but that's not what she did your honor it's absolutely clear that judge judge said the second action for aids in the don't know the clean slate determination of whether the eighteen ships were similar to the chips in the first trial she said over and over again with the experts will need time to look at the source code and determine it representative for the other action so should the the second trial was to be on the question of representatives l g is free to argue for summary judgment and it's free to try to use our prior arguments against us but what shouldn't happen is a judicial  ruling where we didn't prevail before there's also an absence of prejudice to l g l g had ample opportunity to accept the deal we offered which is let's try them all at once just accept representativeness now so they weren't prejudiced by electing over our talking about that what the hard thing for you is whether or not they prevailed in the first action they wanted her to conclude representativeness or they wanted her to conclude that they should have an opportunity to put forth representative it is the reason that what she absolutely relied on and accepted which is the standard we're talking about here the notion that they believed it was representative and that they would be prejudice if the ag knows from now if you look at the time i don't understand your argument to me the issue is did she conclude that they were representative or not so show me where she concluded they were in fact representative she's never concluded in this case that they are to ask you which is did the district court find their representative or not because that is what they wanted to court and never made a final discordant first case and how can they be stopped in the second case from whether or not the issue is represented they didn't win on that issue in the first case well if you get a different other day that they didn't win or yes your honor we keep going back to ve issues and the point is what did they say in that first case sufficient insufficiently diligent process in order to have that issue not be stricken with pride and so what did m p t gain from making that decision making that assertion they gave the violin the local your word that you were diligent on the others as well based on your presentation and i want to give you the opportunity to go after algebra damages i ninety five percent of the past but the second case and i want and it's important to second phase was limited and in fact the right thing for me is i actually agree with you i believe that she fully intended to limit the second case from liability represented the business i'm just not sure judicial sample is the appropriate legal doctrine where the court says with respect to m p p's first argument the court agrees that m p t showed it was diligent in pursuing third party discovery for all nineteen products on chip district court reiterates that a twenty sixty where she says i found diligence right i can't figure out exactly how to characterize the issue is the issue whether it was representative or not or whether you were limited to whether it was represented she did not decide the limitations representative to the contrary or on the schedule of scheduling order that my friend referred to was open ended with respect to discovery and if she was limiting it to representative and she did not do it in that scheduling order respectfully i think what she did is she said representative ness is an open issue for the second trial let me give you a couple of key sites that are helpful here yes but she didn't expect to do a one eighty s no no your honor she was prepared to try that with the the change of position even after the verdict in the first case she was here on the she never would have let you in the first case you didn't put forth infringement contentions on the other chips your only chance of saving them and not having a strike with prejudice was to allege they were representative that was it she wasn't going to let you introduce at that point she made it clear all new claim turns analyzing each one your honor with respect the district court understood that twelve hearing that's on the motion for summary judgment and i'd refer you to page a twenty fifty nine where the district court says if these are really representative claims then it will be decided one way or the other open and with respect to the second trial well actually your honor she does open it if you look at a thirty eight which is a scheduling order she had said she's called a schedule for n p t to serve as a princeton tendence an expert report by may fourteenth and to exchange with parties a list of infringement non fans an expert witness is expected to be called a trial so with respect we finally see anything at all to do with whether or not you're going to go beyond representativeness that's it and identify the experts who are going to put forth your case on represent honor if you choose to reverse and remand for a trial that may in fact be limited by the district court to the issue of representative us we'll take it because that is exactly what we were promised and exactly what we hope to have and i'm just i want to point out  twenty six here and it's a very important line where the district court says l g does not win by default she is contemplating a merits trial on the issue of representatives or silk similarity she says again on a twenty sixty five i thought my intent was clear let that happen for another day but we were then whipsaw deprived of that very opportunity we've been promised when the district court said oh there's traditional stuff all with respect i think the court is already identified through the questioning of my friend why there cannot be a judicial stop here because m p s he did not prevail on the issue of representative as that was the basis for preclusion you should reverse and remand him with respect you should also be banned for the mpeg four claim they were not actually litigated ninth circuit law requires first southall that they be actually litigated we couldn't possibly litigated and pay for claims with respect to the sever chips because they weren't in the first trial in our incentives would be quite different because a lot of the products in the second trial  argument so with respect we even if you don't if you agree with us and sixteen twenty sixteen twenty one gets reversed to even if you don't exist agree with us on all sixteen twenty sixteen twenty one titles we should get a new trial on the chips