you even if we agree with you on both of those points we have the authority to affirm the judgment of the district court on any ground and your friend on the other side argues that you asserted in the prior case are the same contributions that you claim justify inventor ship in your name under the two hundred and sixty one right the just said on every single claim no that's true we have not specifically point to a particular claim in the pleading in the complaint however in the complaint  you came back in the great grief and broke about have the two hundred and sixty one pass and was not part of the st case joint inventor ship depends on the particular claims nobody has said anything about th particular claims you don't say anything in your great grief at all about the three patents that are in both cases in responding to the red briefs argument for either claim or issue preclu i do agree with the defendants that the disposition of the st case will have a great impact on the nd case but again that's an issue that the trial judge had occasion to consider the journal of experimental medicine in that case it could still be considered in the case below in china one we never really considered dr chen's contribution in his nature medicine paper that's i think the issue preclusion issue have to be reconsider but to the extent that that all that evidence existed you're not saying that evidence didn't exist at the time of the  but you could have made the same arguments that were made in the dana farber case in the st case correct  it's not an intervening change in the law it's just an opinion talking about what the law is well before in half there was the  the know was that if something is already published it's in the public domain that enter the storehouse of common knowledge then it's not you can't rely on that as a  know good morning again your honors and may have please the court as an initial matter i'd like to directly address the two errors that my colleague identified st he said the district court erred by not considering the ghazali factors i don't believe there's a single case that's been cited by either side that's identified the failure to express lee address because all the factors as reversible error instead the law in the th circuit is clear that the appellate court conducts an independent review because all the factors nd counsel said that judge klausner erred by finding that dr chen consented to the motion to dismiss that's not what happened below is the record clearly shows judge klausner determined based on the local rules of the central district of california that he was authorized to construe the on timely opposition to the motion to dismiss as consent to that motion the issue before this court is really whether judge klausner used his discretion in granting the motion to dismiss on procedural  that the approach to this litigation was problematic it's pretty clear in the th circuit that that dismissal as a sanction is is a big step right no question your honor it is a big step but the facts that were before judge klausner i think demonstrates that he did not abuse his discretion in the proceedings below the supposed reason chen filed his position brief lane was because he was relying on the stipulation to stay the case now the local rules say and the judge is standing orders say that you don't rely on a stipulation until it's been entered by the court but even if that was the reason why the opposition was late the opposition that was filed made no attempt to explain the implications of the chen one decision attempts to provide justification for plaintiff failing to comply with this court's local rules and the court finds not so i guess i understood those sorts and i still understanding where it's been made no explanation for late  i took you to be making a distinct point no explanation to distinguish the substance of the test issue the ruling in the previous case that was my point your hon it's worth noting that at no time below did dr chen offer any excuse for either the late filing or explain why the the chen one decision didn't bar the claims that he was trying to pursue below so i changed the subject a little bit assume for purposes of this question that the the actual ground of dismissal would require a very skater and rematch why would we not leave either all four of the patents or at least the discretion in granting the motion to dismiss some procedural grounds this court certainly has the authority to look at those issues in the st instance and i believe there's enough information in the record before it to reach the conclusion that those claims are precluded at however it's probably most efficient for this court to revanth for specific findings on that however i don't think the court needs to go there the court can fin court found it to be inappropriate for the retaliate torrie action at what role does the fact that that had just happened when the new case was filed have with decision and certainly colored his view of this case as you note the motion two of men two to add additional defendants and try to have them stricken was denied below it was denied for und why he wasn't trying to avoid that decision through the complaint that he filed and in chen to his proper recourse was to appeal that decision in chen one and all of those issues were laid out in the briefing simply didn't have time to bring the two hundred and sixty one patent into the chen one case but that's that's just not accurate the two hundred and sixty one patent while it wasn't issued at the time the complaint in channel one was filed it is she's only three months after the complaint was filed it issued seven months before the close of fact discovery in that case and nine months before the motion to amend was filed there is absolutely no reason why dr chen could not have brought that were actually brought in another case it also in compass is claims that could have been brought and as reflected in dr chen's reply brief in this case he's relying on exactly the same alleged that claim should have been brought there and while the court doesn't need to actually make a finding with respect to claim preclusion i think the public policy against vexatious and piecemeal litigation relates  to the public's interest in expeditious resolution of litigation cazaly factor so it's appropriate for the court to consider those facts and if the court is to apply an independent review because ali factors i would submit that at least four or five of those factors strongly support the judge's exercise of his discretion in granting the motion to dismiss  follow we just talked about that the public's interest in avoiding duplicative litigation but with respect to the court's need to manage its stock it now that the local rule that was violated here was plainly intended to give the judge sufficient time to consider the papers before the hearing dr chen cut the court's time and have filing the opposition only ten days before the hearing and never even asked for  asked for leave to file that opposition out of time or explain why he filed that at times with respect to the the risk of prejudice to the defendant's factors as the th circuit explained in the the ur case that was cited in our breeze as the duke free of prejudice that has to be shown in order justify this missile on procedural grounds as related to the strength of the excuse for failing to comply dr chen offered no excuse klausner and it's only on this appeal that he said he was relying on the young entered stipulation again directly contrary to the court's local rules and standing orders given the weakness of  excuse under the because ali line of cases under your issue there's not a lot of prejudice that needs to be shown in order to support dismissal here i would submit that just putting defendants in the position of having to file a reply brief that the court might not have had adequate time to consider before the hearing is probably sufficient but even more to the point allowing dr chen to proceed with the duplicative litigation would have prejudice defendants in having it to continue to fight the same issues that they just won in chen one when dr chen should have brought those issues before the court in the chen one case public policy favoring and the decision came out on november th so as it turned out of had a timely filing it would have put you to the burden of filing the reply because that that's correct your honor but in that circumstance i suspect that we would have asked for leave to address that that decision but you're correct on the timing there your honor so i think my my time is running out here i'm happy to address further questions that the court has but i do want to stress that the issue before this court is surely whether  the district court judge abused his discretion and in forcing the local rules and and in the th circuit it's a rare case indeed that an appellate court would question the exercise of discretion in connection with the application of the local rules under the facts of this case where dr chen never explained or never sought leave for filing an untimely motion untimely opposition brief rather and never even address the decision that supposedly was the reason for the delay in the st place under those facts i submit that judge klausner acted well within his discretion and  down to show that there was no improper purpose dr chan was only trying to correct inventor ship which has strong public policy under paintings and  the reliance on the stipulation is not really the reason for why appeal our appeal it's based on a real nice fact finding when the docket fighting make it so apparent that the late filing of the opposition brief is because the party has to pay later to a short stay so we are not saying that because we have a stipulation the case cannot be dismissed only that the trial judge certainly knew about the stipulation he denied it before made we don't believe there can be a rule to say that if the new patent issues after some patent case has been filed in the new patent has to be brought into the original case such a rule will have a very far reaching implications and we don't suit to to assert those rights so there's in this case there is a very strong regarding the godzilla factors there's a very strong policy concern to resolve inventor ship issues on the merits as we know more cases and many more cases disputing it later on so even just that factor alone plus the lack of prejudice plus they definitely are less severe sanctions until tomorrow morning at ten a