very limited opportunity for the discovery limited it really focused the district court obviously was quite aware of your concerns and your interests and the issue and and at the same time wanted to move this matter along and focus your efforts on what she perceives things that matter that what she perceive however were shaped by defendants on a reasonably narrow theory of the case and which led the district court to ignore proper discovery that  both to contradict or explain defense theory and to develop evidence with regard to the theory of the case must be very precise here at the district court ordered them to provide you with a sample from there only say already batch correct that was the only cell ready batch they had they also had various batches of salt but you got did you get samples of the various batches of salt or did you only get i just want to be precise did you on we get a batch of c l ready to test we got a batch of what was characterized as say already by the court it was represented to be the single batch of formulated product that defendant said was in their possession ok then and there it was then there were answers concerning ten it is your view that astra zeneca should have been given a sample from every up to ten back or was simply that at a minimum dr reddy's had to answer and interact atory saying that the sample they gave was representative in this case to enter the inquiry as to whether the product in spring has and here is why now this thing you think they have a highly crystalline formula and an intermediary stage and then they add alcohol and it becomes the more i see you think the easy to detect that crystal it actually mask the crystal entity in their process that is why we sought a product on by which they we believe they have but they refused to give us now the court limited us to a theory to defendants theory that all we have to do is look at this final product and mind you the final product that they gave us was not testified to by any competent witness there's no evidence that this product is representative of what their self but you look at the product that they gave un all that you gave to the district court judge was we need morant this is inconclusive actually that's not owing to the district court if you look at the record if you as of today we got no discovery from the apart from the very limited sections of the end that the court order that they give us if you never had to lose here and they intermediate stage it might be seventy percent or more crystal learning and that the final product is not where everything can't be detected using the x ray powder detection mech method right but the claim is limited to something with seventy percent chris to really be detected by the snap so what method is it you're going to use to ascertain seventy percent crystal limited in their product if not that method clearly require seventy percent crystal in the cheerio and it says that that is determined by x ray diffraction if you look at the patent the patents always measure crystal the nitty at the end of the to prove that material is crystal not what happens in the ordinary course of pharmaceutical manufacturers after that that material is mixed with other acceptance and sometimes ground is sometimes put together it's put in a final formulation that doesn't mean we believe that that was the only evidence in the case that whether it remains of seventy percent christian or not if it can't be detected by the method that you included specifically as a claim limitation during the prosecution of this case  believe that we would have satisfied that limitation but just the evidence that i put forward clearly if the only evidence in the record was that we had tested their composition that is seventy percent crystal and other materials yeah one of the improvements for him it would be to measure the final product and show that that material is in there but we also believe that another way to prove the fringe of it would be that this product is a second ago you just said using the patented method pratt patented process and so i thought you were trying to rearrange the process claims despite the absence of water happy to have to talk about that well there was water in the process there took that i don't want to go on stage now this is the hatch waxman case and it starts with an imbalance and discover all of the facts regarding the infringing product is within the control of the accused the french are now if we endorse the procedure where we rush to somebody's judgment without giving the patent owner an opportunity to get the basic discovery basic discovery you know test results on their friends and product samples of the infringing product a deposition off the deck to read who made the summary judgment who submitted evidence with their summary judgment and the court grant summary judgment on that record i think that the opportunity for mischief and error is so great that i ask that this court not endorse such a it is described as a one zero four nine and i do not know if that was the sample of the salt that went into the bottle however that's really not relevant because the experts don't even address what happens when you get from the salt to the formulated products oppose that you had a product that was absolutely seventy percent crystalline could be detected using the x ray powder to practice method i hope i'm saying all that right and then you added alcohol grind it up did a bunch of other stuff and changed it so that the final say already product didn't  could be seventy percent crystal in but at an intermediate stage it was absolutely exactly the claimed product what will be what should happen then no research why aren't you making the infringing compound patents out there and people use that as a starting material and then they tweak the compound to make it something slightly different but it's none the less using the stock as the starting material the very patented invention shouldn't there be compensation under circumstances like that in some cases yes in this case absolutely not if you start with one hundred percent  all done overseas now you have to look at those sugars fears if there are not seventy percent crystal material in those sugar spheres or in the final product no infringement even if you started with one hundred percent material you mean to completely correct the process ok so your argument just so i'm making sure i understand it isn't that using someone else's patented product as your starting point doesn't ever amount to infringement your argument is that in this case even if we're using the patented product we're doing it somewhere outside the bounds of the united states and what is coming into the us is absolutely not infringing correct i understand given to their experts at least had them for months and months and months before they had to respond to some judge is it correct that the product is not here on the market the product is not yet on the market but we have received fi approval and the only thing that is keeping a generic version is this case and the judge recognized that and and if we should find for you in the product goes on the market in a week or a month or two months and your product is determined both by x ray diffraction methods as having seventy percent or more you get sold again i'm sure  and with the name in the the other side gets what they do out here they get the relevant portions of the a and da and they get a sample in this case of the finished product which is exactly what they  t and you're saying what what they go out was what was submitted to the effect in hints presumably what will end up as the market product correct now if for example and their expert tested the batch that you gave them and checked i'm sorry salt for the finished product asters fairly slippery in saying they tested the finished product and discovered it was sixty eight percent crystalline ok now they've also based on your data been able to show that you had various factions and the concentration of water differed in those batches and it just so happens that the concentration of the one you gave them was the lowest amount of water and that people know water and christa luna t r correlated wouldn't that be a different circumstance because it seems to me then we might actually have an abuse of discretion for tonight discovery because their expert would allege a really good reason why the one back you gave them is likely not representative but that other batches may well lead there was no testimony in the record about the water content in the finished product really had a finished product to test and i ask you one other question about right you're not on the market i'm not trying to get into business strategy this is in my mind a legal question you don't need do you to wait for an appeal to be resolved are you just being prudent or am i unaware of one of the rules which may be entirely possible with hatch waxman that prevents know you go on the market who are liable for greater damage i don't believe that is true if there is no just reported decision at the end of thirty months base the in order to determine exactly the appropriate amount of initial discovery which makes it very different from metlife this case is not meant for politics life or metropolitan life there was no adequate opportunity for initial discovery is conce during oral argument in this case just the court exercised her discretion and determine what would be the appropriate amount of the national discovery after that was completed then g u r l moved for summary judgment and astra asked for more discovery under rule fifty six f on the last day when their opposition was due now given that astra failed to meet the rule fifty six f standard in the second circuit it was not going to be use of discretion to deny further discovery and in fact in asters opening brief they never even bother to say what the standard for fifty six f is in the containing only a few paragraphs displaying why it is not seventy percent christian and cited that's as far as i can tell only it's  problems in the patties case we did not prove at the district court did not try to prove beyond a clear and convincing ever to any standard that we didn't have seventy percent what we said is we have tests we did our homework we do not think there's any crystals in there and show us your case now and then and it's presented it is saying we'd be happy to show you the case but we didn't have the opportunity to conduct he even he even moderate discovery because the limited discovery we were given was insufficient well they're completely wrong or our district court considered zeneca what discovery do you need in order to meet what is a relatively low burden on some judgment and astra zeneca said what it wanted the district court determined what was occur i don't think that's the argument the argument is when it comes out of the thin film dryer to make the bulk product maybe it's seventy percent maybe if it was and it gets microbiologist and they say they can't test it after the m so quickly that there is no opportunity for crystals to form that's water spray evaporation is used also because that is a way of keeping crystals from forming so even if you were one hundred percent crystals in the bulk salt at the say anything about what's in the finished product and the judge recognized that judge recognized asters experts did not address dear old sprays run process which they had for ten months before responding to some judgment and any thought that there might be seventy percent crystals in the finished product was pure speculation effect your odds are i've heard some things from mr weinstein that are simply not in the record i ask you to really look at the record because really is the issue here fear is on the record and find where that is and frankly that dispute is is clearly an issue of fact that we dispute that that those prophecies would change the crystal and character of the material in the finished product here without materially changing it but you are still in french so you don't get a pass necessarily only a process or process patent and you don't get it you don't get a pass necessarily because you choose to use your infringing process overseas so we are entitled to discovery on their process and the intermediate successor that we saw just for that just for that purpose now  in and not in the record i really do invite the court to look closely at the record look closely at the evidence that astra zeneca submitted in opposition to the motion none of it was addressed by the district court in in her decision and in light of those submissions and the status of discovery in this case i ask the court to find that that decision