mr birdie before i start the clock let me just give you a heads up that you've reserved for i'm correct yes your honor ok it is eleven minutes t and i'll just interrupt you a little bit to remind you your into your rebuttal time you can keep going or not is please but you'll be eating up your rebuttal if you're answering a and aggressive question and you have to keep going on and i won't take that away from you thank you your honor go ahead thanks this is ted birdie for appellant may please the court your honor i'll begin with the issue of st impression which is the standard encourages the subsidiary anticompetitive conduct the parent engages in sufficient independent conduct to be held directly level as a single enterprise with the subsidiary under the sherman act where the district court erred was trying to impose on top of that and an additional involvement or knowledge requirement that's just that's just not there and it conflicts with the reasoning of the th circuit and the u s supreme presidential and binding when we got it back we did not agree with the th circuit that jurisdiction was proper we held under christianson that it was plausible and retransfer but isn't that initial my trunks decision presidential here well if the cases are all for it in terms of being plausible but in addition to that there's also a sham litigation patent litigation claim well it would certainly be under the patent statute if you improperly bring a patent claim that is a substantial issue of patent law that the don't tell me what tell me what the source of the that  does this sham patent litigation claim that you say that you have that you also say is separate from your walk or process claim somehow does that champagne patent litigation claim arise under the patent act or does that arise under the sherman act or does it arise under some other act what's the answer to that question the case law is that it that it or wise is under the sherman act but i would also argue  of cases it raises substantial issues of patent law that the federal circuit should address ok so sherman that claim that you think there's some important substantial patent issue inside of that sherman act claim exactly or is it just as you would argue the same thing for what you say is a separate claim your so called walker process claim is that right exactly your honor ok so why doesn't your so called separate sham patent litigation claim suffer from the same problems as the walker process claim which under our our precedent that we're bound by and the tronics we've already held we don't have jurisdiction to handle under the circumstances but didn't the court also suspend the mandate in that you didn't keep it we kept it because the th circuit retransfer  for christians in order to avoid a ping pong back and forth a court can ultimately decide that even though it doesn't think it has jurisdiction if there's a possible case to be made it won't transfer that doesn't mean we agreed with the circuit it doesn't mean we can ignore our binding precedent and i try on it so we very mellow may well end up with the same kind of situation here where we send it to the circuit and then they send it back and we have to decide whether it's see a big issue in this case your honor is when is it proper to hold the chandlers appellant to the knowledge of in this case a bogus if you will or a bad faith experimental use defense when the opinion of counsel was withheld didn't even exist wasn't disclosed until within the four year period the four year statutory period and then what those components of the experimental used vents are and that's something appropriate for a national rule and less everybody in our situation and every time one person in one case files and i can conduct  the other way what your answer my answer is this is walker process brought always raises substantial issues of patent law and those cases do belong in this court and i agree it's unclear i agree the case was unclear but that i think that's a better answer dismiss this appeal for lack of jurisdiction and transfer this appeal to the th circuit with its appeal to the th circuit and the primary reason is that this appeal does not present a case in which patent law is a necessary element of the claims i think as mr broody admitted chandler's count can i just interrupt you i have a couple of questions here for just one is this isn't this is going to be a waste of time because it seems pretty clear from the this circuit's decision that they don't think gun b men applies to walker process clients at all stopped on that and they went out of their way to make clear the reason they didn't think that mattered to their decision was because the patent in that context was live and so they've also kind of put themselves in a box with dave identified one where they said hey it wasn't live i don't think we can distinguish and probably under christians and they would have had to keep it and so i think the th circuit's own opinion makes clear why this particular issue should be decided by the th circuit and not by the federal circuit and that my that's my best answer for why otherwise i think they're you know i wasn't trying when we brought this issue up we weren't trying to make it into another ping pong read between the three cases it make sense and then when you when you took it back as much as the court agreed disagreed with the th circuit at the very end where you say hey we really want to make it clear does this is not going to be based on whether the patent is live or dead i think what you were saying and you know i'm speaking for your own i appreciate you are on the case so what but what you were you've already determined the electoral conduct issues and you've decided that there was an optimal conduct there are no patent law issues left and it goes clearly to kind of where i think you want to jurisprudence to go which is to focus everybody in on what gandhi meant and said and what you want people to do which is have you exercise your stiction when there is a substantive penalize you at stake this is a case where it's absolutely clear because thirty one at all and just just regulating the state versus federal spirit and not the circuit the circuit spear i mean based on the facts alone you could you could you know there's a way to do it and argue that but i think the more persuasive approach is looking at the language and it's something you struggled with in the opinion is how you take statutory language that so close and try to read them differently and i think that the better view of this and that's what really tying it to the statutory basis for this court's jurisdiction and reading gun we meant in that context is a better approach this is judge chen can you remind me again the basis of the finding of an equitable conduct for the underlying pattern here yes your honor so in the underlying patent what what in the district court there was an argument over whether the experimental use davenant over those two and that two year period was the basis for not having to disclose the district court did two things that this court considered one was the district court excluded the testimony of that patent lawyer whom the inventor relied upon and the nd piece was the experimental use evidence and this court said it was fine that the district court was within the district court's discretion to exclude the attorney right let me let me cut to the trees since we're running out of time the the patent was ruled on enforceable for an equitable conduct precut as there was a finding that the inventor here knowingly  well so you're on if you look at there's a footnote in your opinion where you even looked at one of the patents continuation patterns that were issued and pointed out that the claims in that particular pattern actually implicated the experiment being used in the experimental use defense but that the claims in the nine hundred and ninety three did not have the real limitations necessary to implicate the experimental use so the reason for that is really based on a sentence from your opinion wh you show the difference in line where experiments can apply and where it wouldn't apply and so all the all the continuations are doing really is following this court's direction on that line when it analyze situation both sham litigation claims and walk a process claim the th circuit decided it would keep it because the underlying patent there was invalid and so there were no substantive patent law questions and with that your honor i'm not going to address the merits because i don't think you're interested in the merits right now unless you have any questions for me i can yield the rest of my time further thank you counsel mr i'm going to give you your full four minutes since we've been after you honor i would just confirm that inside tronics this court held court while it is not implausible to reach that conclusion we reject the theory that our jurisdiction turns on whether a patent can still be assert are substantial issues of patent law and how they get applied in this case is going to inform walker process jurisprudence going forward and what happens to you need to single enterprise theory and having many circuit differences on what is an appropriate single enterprise theory is not an appropriate use among others anything further don't know your honor the matter will stand submitted thank you