problem that it appears that your injunctive proceeding as a matter of assembly of the record in the evidence was separate from the others and therefore you should be entitled to rely on whatever evidence and argument you produced in your separate proceeding but you don't get the benefit of somebody else's proceeding that might have had different evidence or different theories here or i don't believe that the concepts of unclean hands apply will stop would so limit us in this case and i would even go a step further i'm not talking about collateral estoppel i'm not talking about equity at all i'm just talking about the fundamental idea that a party is limited by his record and if these cases were related but not consolidated and if the scheduling orders provided for separate evidentiary hearing then why shouldn't you  and every other defended be limited by whatever evidence you elected to put into your record your honor the cases were consolidated for pretrial purposes and we expressly adopted evidence really records were separate here then it seems to me that you should perhaps be limited to whatever whatever evidence you put into your record your honor i respectfully i don't know  the district court that it was obvious on the basis of that general knowledge of vick's extended release and what chief judge michel is asking is how do you get the benefit of that and i suppose your answer is that you would argue that you were in the same proceeding but beyond that you would say that once the federal circuit has decided that there is a problem of obviousness with that you get some benefit collateral estoppel benefit of that because it doesn't have to be a final get the benefit of it but what you get the real benefit of is the tivo people we for example rely on cases like the miller brewing company case which says you don't need a final judgment that's determined under twenty eight u s c twelve ninety one first of all do you lose if you lose one out of three in other words does that mean as a practical matter that the injunction stays in place so that when we don't most not have to reach those point when you say do we lose money even if we have the fr cold and the effect of these various decisions that have occurred i understand chief judge is concerned about this however in the ranbaxy case the court developed a record based on evidence presented were part of those proceedings was a separate hearing separate day with sep brain but tell me what i'm missing from the appendix because the only site that i could from wrong tell me the church citation as to how you agreed and cooperate it was j two one nine in the briefs i believe and the only thing i could see in that statement was one sentence that said we also agree that ranbaxy is correct in its assertion of inequitable conduct that's a cheerily so because you said you're one statement as we agree that rand ranbaxy is correct in its assertion that in your view it is sufficient to say that you incorporated all of the arguments from the evidence and everything with respect to an equitable conduct in your particular case your honor we actually go further than that and what we acceptable conduct perhaps that would be a different question i don't disagree with you and if we were here for example trying to rely upon these decisions on an appeal from a summary judgment on an infringement board or a final determination that case i would agree but comparing apples to apples in this case these are preliminary determinations that were made with respect to the validity or enforceability of patents nothing's changed as between all three cases but the important point here is that enforce the lower court of the district court conclusions with respect to an equitable conduct in another case that we have never reviewed or for that that is correct polemics the different from the other if it does present theirs i see a difference can proposition that can be treated as if it were a final judgment me there are neither side has found in my judgment the cage right on point on this unique issue because we have a unique set of circumstances same judge same proceedings same pat the other side has not found any cases to stand for the other proposition and we haven't found the needle in the haystack case to stand for the proposition that we assert but we feel very strongly that if there ever was a case for collateral stoppel or even unclean to a preliminary finding by a district judge in a case do you have an argument on the for all seven of that of course i think the parties agree that the district has three claim limitations judge the judge full on expressly determined usually using modeling data that the abbott experts created that we did not infringe that first claim limitation the court then went on to determine that we in his judgment preliminarily infringed the second claim limitation would which had to do with the extended release formulation comparison we disagree with the second finding but we're doing that here today we it's unnecessary to these proceedings because the court found that we did not infringe expressly this factual determination based on the patent evidence that was before and the modeling data  created he made an express factual determination that we did not infringe he misapprehended the law in a little misleading term that because we violated one element of that claim eight that we in french he didn't even get to the third claim limitation because he stopped on the second when he found that we had french and so in our view when we move away from the issue of collateral stop and the procedural history the case nasser judge throws questions simple the question was if you even if you prevailed on those on the six sixteen on the seven eighteen isn't it all for naught because you lose on th seven your answer is you don't lose on the forum seven even assuming you don't get the benefit of equitable astop whole earth on a forcible and equitable conduct of the brownback so you still prevail on the forest seven in your view because as no likelihood of infringement that's exactly correct and again it's it seems almost incredible but it was a one of these plainly legal errors that are right on the surface the court didn't analysis the court expressly found factually that we did not infringe one of the three claimed limitations and then made the mistake of holding that we infringe because he then went on to find preliminarily that we infringe the second claim limitation that factual finding should be disturbed absent some demonstration of an abuse of discretion for which there's been no showing in this case so to answer your question very directly the court's already basically determined that he just erroneous semantical point that i'm making and maybe i'm misunderstanding the port but from my perspective i think what we're talking about is it collateral the stop will effect and or and on clean hands bar that should enforced by this court and that abit is a stopped based on the determinations below it now note that in the context of this extraordinary really clear injunction equitable remedy it now knows that  held that the patents are either one early on in forcible or an equitable all three patents that are being asserted against us and so from our perspective it's a question of the stoppel fees of the them but as far as this court is concerned we would ask the court to apply court to essentially enforce a preliminary judgment but regard to equitable an equitable conduct on the four zero seven was that correct i don't think so and you've been the reason why i don't think so just because when that determination was of another panel yes but here go ahead but the problem i have now that you agreed with judge alex is that this court has it reviewed i mean in fairness to the other side isn't it just basic that if we were going to give a fact in other words affirm and enforce a judgment of inequitable conduct by a district court judge then we ought to have a record of an equitable conduct into which we could evaluate the merits of that that issue that record that inequitable comp or we're that record exists below that's correct it's not here before this court of some of my point being i don't want to lose sight of the fact that with respect to the four zero seven patent just the only one that fits outside of the discourse this tell ruling there's a completely separate very straightforward simple independent legal ground for reversal but i do think it's important that's what i am for it yes i mean i think it's a bit through it's important though because the position we're  i think has a great deal of merit and that is that it shows not to pursue the appeal there was an adverse ruling will it had full control of the ability to calm in an appeal that in this court and it chose not to that decision became part of the public body of the law in this case it has limited applicability it middling there's very few uses of that decision but one of them is in a direct apples to apples comparison in the same case from the same judge with the same pants we would submit that it was they who miscalculate and i don't what i don't understand is why you all didn't take the simple measure of asking the judge below why he didn't do it to a spot  of the jury nonetheless you would then have the benefit you would have participated in the inequitable conduct proceeding it would have been part of your record since it's a consolidated record and then the  concern that the judge post and i both have a secure here asking us to give effect to that and we don't have a record now that's true in many collateral estoppel of circumstances the court that gives collateral estop doesn't have the whole record in front of it but you can understand that a pattern for enjoyment an act of will conduct cases that can give some concern because inequitable conduct was a is a difficult issue and often play and not often of much order in this but even even the inevitable conduct isn't the same order as the order in joining us yes but but be that is i mean over fifty we understand the fact of the matter is there's a separate right on the surface legal ground that would take care of the citation of glaxo it stands for the very remarkable proposition that when this court does something on a preliminary injunction and then subsequently a panel gets the merits kate that the merits panel is not bound by the court's determination on a preliminary injunction to it that's an remarkable i think and i don't but i don't understand how you would transfer that principle about the difference between being bound by a record that had been developed over that four month period and be bound by the prior decision that was based on the no discovery on very limited here on the merits but i am saying that hypothetically if we have two different party m and there's a wealth of authority that's to be final doesn't mean section twelve ninety one it means that there was an adequate so you have a hearing opportunity for review and here it's not likely to be reviewed anymore let me put it to you this way suppose instead of the three judges you see here today suppose you have the t v panel back how do you think you would fare i think that the point is that  anderson not even appealed from the court's rulings of infertility they don't even play on the seven eighteen they have not appealed from they've only appealed on the infringement so now they're not only saying we are able to take advantage of this simply so in all fairness if the court's going to address that issue now instead of saying to injure x which i think is appropriate if you have a motion to vacate the injunction based on the prior rule and go back to the district court there's a full record now on it the district c decide that but if your honour's are going to decide that question now then we ought to be afforded the opportunity to file a full brief on one side to just one quick question in your view on the question of a stop of the whatever you want to call it the second circuit l in seven circuit laws consistent in the thomas and betts case saying you don't give collateral stoppel effect to preliminary injunction rulings the only exception and one of the reasons was the record is different yes but in those cases they were talking about a district court trust laws there's no i can assure the court there's no concern while generally when people settle a case where there's a serious question about patent validity there is a section one nation well i would say this but that's not for the again i would say this this issue of of the effect of seventeen cision intent on this case has not been briefed at all and they didn't even appeal from the invalid finding so to simply import that when it was done in a hurry basis and here we had a four month record without any briefing at all i would ask the minimum that we be allowed to brief that i can also represent to the court that since the temp a decision was entered an not before us but the point i'm making is that had they raised well i'm sure if we had a trial and one side or the other lost i'm sure if we had another trial five years from now or five months from now they'd say we could do it better than to  time but if they had raised disciplinary injunction hearing that evidence would have been that here i before this court that's why i a previous lawyer said something that was absolutely true there's always a tension between accuracy in phonology the preliminary which it is said that collateral stoppel is applied to preliminary determinations by core what finality means is usually that the litigation of a particular issue has reached the stage of the court doesn't see a good reason for permitting it to be litigated again namely the preliminary injunction issued to one case that side i mean what do you say we do about the fact that you have one panel zabaleta the not infringement one panel reaching one conclusion and one panel reaching another then you say well it's a different record different arguments are not allowed that makes all of this look much more like a game than whether we're really dealing with something that affects the economy  rewriting one situation proceeding that took place over ten days with a very limited situation and in another you have four months in which to develop additional facts additional evidence additional information that can properly be considered both by the same same order the fifth of october but i'm referring to the test now the tablet came out on the fifth of june correct now in the fifth of october ordered the district judge says oh by the way i found this i found the same result presented to him based on the showing which is the burden of the defendant to show in validity based on that showing a list limit of this it is he has to make at the terminations now later if he has another proceeding and there is additional evidence that he can take into account there is nothing in the jurisprudence that would prevent him did you tell the panel on the t v appeal about the adverts finding of the district court federal circuit was well after both of those did you tell the federal circuit court of appeals panel that there were inconsistent findings about the six sixteen and i was going to record the power records so it was very difficult for me to go outside their record to refer to it and say you should now you know look at this this decision which was at first to us based upon some record evidence that came into the record after the proceed i didn't feel that was appropriate  i did however with respect to the seventeen we did point out the limited nature of the record what was shown below and and i can tell the court now that if antrix had raised these limited record and then five months later another party makes an argument and additional evidence is developed and a much fuller record that second panel is precluded from finding that that  second defend it has not made an arguable showing on that record i don't think there's anything to the that suggests that and it's fundamentally unfair because here they didn't even raise it so they're better off for not having made these arguments and not even have it suggested that the one ninety in the four twenty two were prior art then they would have been had they raised it and litigate it which is which is truly fundamentally unfair i also want to take the opportunity to correct to to court we said it's really odd this prior art everybody is citing it's different no one can agree that anything is controlling and they say they came up and said yes we admit that the prior art that we're relying on is different so we have a situation where they rely on different prior y go through a four month proceeding and none of this is developed none of this is proved they don't appeal in validity at all then they come up here and say we can take advantage of this tab opinion that was done in a different record without having brief the issue and  they now amend their record below and we have all kinds of evidence below on these town these two paths to meet their contentions and they can't be part of the record you can't be introduced i don't think that that's the law i don't think that  panel at a very early stage in that case is now binding throughout that case and not subject to further review of the record so if the court thinks it would be helpful because that important issue hasn't been proved we would we would respect to tell the decision there has been judicial review of that case there was a proceeding below there's been judicial review preliminary but we're seeking to use that same context as it was actually in post below so with squarely applies there i would also just like to point out two other things one so that there's no mistake or misunderstanding right out of the will of the lower court's decision the court said as to four zero seven the issue of non infringement and this goes to my last point which will five five nor to all seven is less than one for seven more the point meter value is statistically significantly lower than one point four seven accordingly both parties results demonstrate that ever just product does not meet the immediate release formulation related limitation of claiming it's an expressed factual determination we do not infringe went on as i have mentioned before to find that mean friends the second limitation in a role the asleep determine is a matter of law that we can french so our point is this