federal law implicated in the state legal malpractise claims i think the dispute to be resolved by this court is whether those patent issues are substantial the district court was of the opinion that the issues implicated  federal issues and so in both instances that makes the issue substantial it was the district court's opinion i think in narrow a very narrow construction of  complaint was that the only issue implicated was the payment of the maintenance fee and his conclusion was that that was not a substantial issue i disagree with that which which i can get to later but my other point is that i think that that's a construction of the complaint because i believe under michigan law the legal malpractise claim implicates substantial issues the federal patent on including the validity infringement of the patten the inequitable conduct issues all of which clearly by this court's precedent as well as i believe the u s supreme court precedent are issues that are substantial patent issues and these are  part of it i don't think it's just necessarily a damages issue under michigan law it's a proximate cause analysis it's the causation element and it's also i think michigan courts sometimes refer to it as the actual injury component that the injury they're very theory of the case is that but for these acts of alleged malpractise they would not have they would have obtained more from that in their infringement action and would have would have done what they settled for so in order to establish that cause ation effect which in fact warrior greed in a district court and speeding's reflect that that was its theory of the case was that it needed to prove that suit within a suit in michigan courts have consistently how that that theory is a political in a case like this when you shape cases like this what's the category of cases that you perceive  the suit requirement applies and those were where were the attorneys malpractise for clue to the client from taining the relief at saga such as as an example of missing a statue of limitations in filing suit there were a couple others which which are in a political failing to file an appeal failing to appear that resulted in a default or something i believe this falls in the first category of case and logical structure i think it is it's say that  they did not receive all that they were due what is it here's this is just a question of michigan law but i guess we get sucked into having to address or that or issue anyway but i'm having a hard time understanding as a matter of michigan law notion yes the suit within a suit doctrine applies in this category of cases but not in a different category cases such as for example the  have an expert trial why would that what would you do the case like that in michigan that if it didn't fall within the suit within a suit and would what would you do would you  this notion that is cited in the coleman decision that it has limited a flexibility i am not aware other than the best foods case which is cited in our brief in which is the case in court which common realized i have not seen a case in which the suit within a suit doesn't in fact apply and the reason for that the reason for the requiring the pursuit within a suit is to ensure that the damages claimed are not speculative and unless you can establish that that you would have been successful or at least more successful and i think perhaps that that is being read too broadly i think that it's the notion that you don't have to prove perhaps in a particular case that you would have been entirely or completely successful in the common if that had to do with spending which they didn't really get into but the underlying case this bestfoods case was a judgment was entered against the client and their contention was that they shouldn't have incurred the liability that was that was entered against them and the best food case thought it would be unfair for them to prove that they would have been completely successful that if they could show that they had all that they had would have been more successful than they a much harder case to say would remain in the federal that the federal court has jurisdiction where there is no well i can see the instance i could i think this is the easiest case since perhaps where by principles of rest or cut or something you cannot dispute save the amount the set amount of money if that is clearly established and there's no right that difficult there's have discovered it all along because shark theory you could say hypothetically well somebody may have gone in and challenge the validity when when the only response with a patent law issue arises only and to support a defense i think that called industries in this court's precedent agree that that that does it even if that is the only basis on which the cases it's tried or successful i think that if it comes up as a defense then that right has been drawn but i think that if unnecessary that would be out and i think a necessary element of the of the claim involves the  interpretation resolution efficacious of federal patent law then it would be that that is the province of the federal courts and the whole purpose of doing that is to ensure that a uniform hope for uniform application say that those are elements of the cause of action and i think that if you say for example there is a factual scenario where there is no ability to challenge or there is no requirement that the court presiding over the malpractise action would have to evaluate or interpret or apply patent law in order to resolve that issue then perhaps that is true or not but that would fall out to say not the sobeys is right i believe i believe that that a number of the elements in the michigan legal my practice claim are implicated implicate substantial questions of federal excuse me first issue is the it's the that there's a relationship ok that obviously is is is a given whether what is the standard of care and whether they are the attorney's conduct breach that standard of care i believe does implicate substantial questions of federal pay a patent on the maintenance fee the reinstatement the conduct of the attorney in front of the p t o whether could've been done sooner whether they acted reasonably whether it was unavoidable or unreasonable to play those i believe implicate substantial questions of federal patent law in addition to that their theory of the case is that for those acts of malpractise they would have obtained more in their infringement action then what they settled for and so in order to prove in the value of their case that they say that they accepted a reduced much there's no practice claim if it didn't hurt them or if there were not major damages saying we had determine what the consequences were been what might have happened had the as to whether the court might have had already neither one particularly anxious to take this on well i don't and that is the fear is that the air at the risk of my this decision is important to be resolved is that the federal court jurisdiction is exclusive and neither party benefits from obtaining a judgment that turns out to be improperly that the jurisdiction of the court that rendered that judgment was improper and so i believe it solidly in federal and i don't think it's just if you remove the damages issue that substantial questions of federal pattern are not implicated as i indicated i think that the standard of care and the breach by the actions of to consider right breached that standard of scenario in which a substantial issue would be presented by the question of whether there was a breach or not let me put it a different way why isn't the question of and parcel of that and the reinstatement there are that under the u s code in the court of federal regulations of the time periods of when it can be reinstated what position are needs to show as far as why that payment wasn't done and the unavoidable unavoidable delay standard and the ever done cherry burdens of showing that and it's that same reason why i think like an infringement analysis like a claim construction analysis or other facility issues patent or whether the issues that the benefit of a federal court is single federal court who is particularly well equipped and in doubt by congress to make those resolution only to have the appellate court say we didn't have jurisdiction in first place so so for us that the decision from the district court where we we officially support it outset is that we agree with with the district court that that this case should be decided by the six circuit rather than this rather than this this court  that the court that this court received the appeal does not seem that it fits the circuits decisions in the first place that is that is the decisions that we said of the nielson the grand f the two others that on for those decisions all seems that to suggest to us that that where you do have a dismissal without prejudice on merits as as undoubtedly there was there is no thirteen thirty eight  so we follow a motion and and the court denied it without prejudice to resume for this power so we did raise that issue because i think it is important that the court address its own jurisdiction and how it has jurisdiction to hear this is based on thirteen thirty eight if you come here and to say that we have a different result where the district court finds that there's no jurisdiction the district would be absurd so i think we close the door on th promise you have something further on that your honor i other than the cases which apparently the nielsen in other cases ignore that that distinction i think there is that that's a situation where there's an  don't hear so much but we do think that the district court is correct in that the that the really aren't substantial or necessary questions of patent law here and that's as is th questions to my opponent indicated that some of the notion of the failure to pay maintenance fee for two and a half years it seemed to us to not require any substantial or necessary  i think that we have to look at where was the case when the when the when the actually took place the case was essentially ready to be trumped and the district court had decided in warriors favor was literally ready to be tried when these issues of the failure to pay the maintenance fee invalid it or that the lapse of the patent were about the detention so so each of these case i think has to be looked at on its own set of and i think that that's what this court said in the measurement case i think is correct so at that stage if you look at it from when the practice was committed and when it was discovered what would a state court actually have to do to to establish to establish the the whether the negligence was a proximate cause of the injury or the fact extent of the injury to beijing is that the jurisdiction depends on what needs to be done in order to ensure the consequences i think that is do you agree with that i think in every simply the amount of damages even under under an impaired settlement theory has to look at it has to look at exactly what happened at that particular point in time and th it down into the practical world of how you would try this case and then presumably you would you would show that the law firm failed to comply with its to you and say all right what are you going to put on to prove elements three and four to show a proximate cause to a van and injury and for fact an extent of the injury alleged your injury didn't turn requiring you to show that you had a viable infringement case but let me turn this may be very wrong before you good to hear a version i didn't answer my placed certainly it's unavoidable that that in this case there will have to be a discussion of the viability of the case whether or not the state court judge if it to the proximate cause and that's extent of the injuries and in this particular case our position is and what we didn't articulate to the district court i am trying to  here the case was almost at the trial level and and some of the issues that would have to be faced by the the state court judge if it was a state court case had already only real issues that the district court would have to wrestle with are are not unique to patent court is amount of damages while here warrior had an expert who would head opined as to the amount of damages other side had an expert as well while looking at expert reports looking at you know who said what i do see that is something that the state could say the state court have to do but none of that involves i think  the other the other only other point i would like to take up is our theory of viability also includes the theory the last licensing fee and then colludes the beers company its its license fees and that is one of the one of the bases for the not practice case and again we don't think that that involves any issue of substantial or necessary  because of the so for these reasons we we support the district court's opinion and but we don't take the support extraordinarily far in implicate federal patent law and those are the court had construed the claims but the question them infringement had not been determined and in fact the in the underlying case summary judgment had been denied and the district court had denied those motions meaning that questions of fact existed that a trial needed to get a jury it needed to be submitted to a jury to determine whether infringement had occurred which is as i cited in our  brief there's a michigan case in contrasts where the in the underlying pattern infringement case involving my opposing counsel are in that in that case as well that they there was a determination of not infringement and so your defense in this case whether it's in state order or district court that the there was no infringement case here to be had and if it is is that defenses that's the that would perhaps defeat the jurisdiction indicated in the called industry cases and in error measurement recognized that the the infringement as an element of their c done here is the idea that the district court in this case has already decided questions that therefore obviate any need for the trial court in the state law a proceeding to decide and for that reason there aren't any remaining patent law issues is that what you understand the argument to be that's what i understand the argument to be i don't i don't agree that that's in fact the case and i think i think  they don't have to delve too deeply into it well well you know let's assume that it is the case that the district court in this case decided all the patent law issues and then said whoops i don't really think this case belongs with me and send it to the district court at to the state court at that point that that doesn't make the case one not involving substantial  entirely about not ok but i recognize that there is a a potential group of patent issues around here so here's what i'm going to do i'm going to decide all the patent law issues for example i'm going to decide that they're absolutely you would be going to a michigan appellate court and in effect reviewing reviewing that your district court's decision on the panel and i found in and if you look i think called industries also gives us the answer to that where it had jumped back and forth between the s circuit and the federal circuit and eventually this court decided the issue saying i don't think we have jurisdiction but because we bounced around so much for deciding the issue in and the u s supreme court said that if there's no jurisdiction you can't you