court room will not be cleared in the oral argument to tape will be posted on the web site in the normal course like every other case all right realty here from  morning let me have my client top of pharmaceuticals i think for hearing this appeal so quickly there are two issues before the court today first is their jurisdiction to hear this appeal and today that the answer is yes the s is did the district court properly extend the thirty month stay by four months into that i argue the answer is no and the second issue raises an important question of statutory interpretation that looms over nearly all hatched waxman litigations yet this issue has reached this court only once before squarely and i believe that's because of litigants misperception of the jurisdictional issue which i'll address now the poacher stiction in this case is proper for two independent reasons operating through twelve ninety five twelve ninety two c one and the platter over doctrine both give this court the jurisdiction to hear this appeal there's no serious dispute raised by the papers in this court that but for the district court they felt that they needed that was do object yes we did your honor if you look in the rocker and what with what was the reason given for going beyond the thirty month stay at the time the judge set the trial the judge felt that lo expectation with respect to dates were more in line with her expectation of how talented a geisha is went before her court and that's how i had suggested a less reasonable approach in fact our approach would have had trial conducted before the expiration of the thirty month stay when did you propose i don't remember  and then we're presented with the traditional factors that are protected against in this situation in the order before the court there's no bought hello how long is the trial expected to take the trial's expected to take two to three weeks or tows already conceded infringement of the method of use patents we haven't conceded infringement of the particle size balance these are the patents that will be raised for the first time in their first amended complaint and so we're going to have significant amount of trial on the invalidity of all seven pounds and then of course in a trial on the infringement of the particle size balance which weren't raised until far beyond the forty five days wouldn't wouldn't have been more logical for the trial judge who extend well if i follow your reasoning your honor that assumes that it was appropriate in the first place to have granted the extension of the stay and enjoin tough but let me walk down that path that is exactly what lilly asked for lilly asked for six months additional stay which would have taken us out about two months past the start of trial and so that is what they were looking for here the judge found that four months was appropriate there's no basis in the record for four months and facts have to raised in its reply brief i'm sorry in its opposition brief that the only other events before us in the core was that it had taken lilly nine days to do a particle size analysis in the past responded merely that tough it was being cynical and this or that or of some other particular issue in the case i hope i don't think we need to reach that or are really addressing your point that perhaps it would have been more intelligent if the judge had the right to extend it all to extend it past the trial da made findings of that nature own mind of the fact that numbers recast this product more than eighteen months after providing original sample i meet month report crile blah blah blah we find that  recasting the product is a direct directs now that a find is that finding sufficient to show a reasonable delay and invoke the trial judge's discretion to go expansion of discovery justified extending the thirty months to thirty four months or whatever the fact number was well the clerks spoke in terms of recasting the product at the eleventh hour that's a roughness that the july eighth amendment might do as i understand it the trial schedule change because the trial if you sheen because of depth that you took well in fact the trial schedule didn't change at all the discovery that the discovery schedule that was a prelude to the trial and the third month by some reasonable increment all the decision has to be based on whether or not we've reasonably cooperated i think part of the issue is what reasonable cooperation it is it's not a rule thirty circumstances what i would argue and rick stands for in its logical conclusion is that things happen before the f d a and the litigants then have to do what they can to reasonably cooperate to make sure that in market on the litigation is minimal just part of your answer to that's part of the answer of prose but i think the rest of the answer is that faced with the fact that needed to submit this amendment on july eighth in this litigation reasonably cooperated with lilly to minimize the impact on the action and in fact tough us succeeded in doing so because the trial the didn't have to be because i travel hypothetically we have the failure of the situation which is a trial date is it but there is  if the trial court found that could have disclosed it earlier and that it was only reasonable to do so it was a failure to put walk rate in expediting the litigation then yes it would be within the  trial or at the first page of its work or even one footnote one says that it refuses to engage in those issues it does not want to reach the disputed issues or facet and it says that it's enough  already in litigation with bar tender could not go on the market until the bar marketed we set that trial date with recognizing it was a second file and recognizing that we had to deal with bar in the first instance hoping that the bar trial resolve court has correctly understood our position that if it reaches the merits the decision should be affirmed that simply isn't an abuse of discretion to extend by less than four months when the record shows that tether had been planning under which they did so didn't give us a reasonable opportunity to test it that's different than what i'm asking i mean that's a good thing jeff that they could have done it at big could have been should have done it before they did it that's what you were suggesting i think that they didn't act properly that's what you read and i want to the rear i mean the the judge lays out what we've done but we're not she concluded that that was no not prompt that they didn't act with and what some beauty they had in a timely fashion sheet the fact with respect to that contact that and she was going to rely completely on this one thing which doesn't implicate him mad if i if i made the statement to tell this brief saying she doesn't wasn't going to rely on dispute statements that was not a general statement that statement referred to statements made at least reply brief that were two of them that were mentioned in the brief she refers to one related to what ted had agreed to produce the other really to the degree of have this control over its suppliers that's was that the timing of their disclosure of this material to us did not give us a reasonable amount of time to deal with it in the course of your book she's looking at the time between when t hardly hidden in between your honor she laid out in detail the dispute and exactly what the problem is it's crystal clear she understood that the only way she could read our motion was if there was a failure reasonably to cooperate and she granted it and she clearly perceived that on that record there was a feeling you're reasonably to cooperate in there are two different ways to look at it in this court one is the way that has been suggested years which is regardless of whether they were good guys or bad guys and making the change they chose to make the change at a point in time when it bollixed up the schedule of discovery for completion trial and that was a failure recently cooperate and just find exercise of discretion to extend the stay we also conten even if we disagree with your reading of her opinion we ought to say that even in the absence of the district court making a finding that they had me feel to it quite reasonably cooperate we should conclude that she did not abuse her discretion but make that binding on her own now i'm suggesting that based on record as it's presented to the school this court can conclude that based on that record the conclusion that it was one reading of the magic language from this that you would risk big failure to cooperate to things like not making discovery disclosure within that deadline ordered by the court wondering is why you think you must think so why do you think that that sort of interpretation whether it is it if the congress simply wanted to guarantee that everybody would have lots of time instead of is failure recently to cooperate expedited action the action not a claim an action the action and as all the issues that are legitimately before the court proceed to trial they all must be prepared for trial and be ready to go and be tried or else the action is not ceding expeditiously to resolution and anything that is done that interferes with that on reasonably is a grounds for the court exercising its discretion to extend the stay here wholly aside from the discovery of pieces which we think are important record here wholly aside from that the decision to make this change at the point  time when they did when discovery was coming to a close it we could not cope with it with a schedule and where we are now having fact discovery expert discovery infringement all piled up on top of the regular schedule that has interfered with the explain let me try what why was this make a difference let him go on the market and if they're wrong they're going to pay you employee in damages down the line where right the public is destroyed and it is likely to have to compensate you for that right many of those things are extraordinarily difficult to compensate money damages they are uncertain and have to deal with you know the relationships with suppliers the ability to raise prices once the price now i can't see how you suffer by our our number on the market where we suffer is in connection connection with the expeditious progress of this litigation  judgment on the alternative is the thirty month trick and it seems to me that the purpose of this exception to the thirty months is to prevent parties from manipulating which of those triggers goes f and in this case regarding regardless of the delay by either party in the set of the state as director started the question in this case the state was set to end before the trial began so how court the time that she's picked does not appear to be in his discretion here we contended we had originally had in the case management plan about twenty months between the time we got the sample and the time we had to put our expert reports into all the discovery position or do you think we should adopt is there not a party did something that was fruitless or on found it to a point as to be viewed as dilute obstructive uncooperative delaying tactic that warrants an exception to the statutory that's not what i'm suggesting but there are certainly a attendant circumstances and circumstantial evidence from which you can drop that there is no motive to be dilatory or drag your feet as the court found here and it's w or be lack of diligence rather than you promoted well i guess the standard could lack of diligence and if that's what the court decides and gives guidance to the district court then i think that would be a valuable lesson to learn from this appeal  but we understood and i believe what most hatch waxman litigants understand is that there needs to be some kind of clear or convincing showing that the party was the way to get clear and convincing burton the normal burden of preponderance something in order to construe it properly the court must refrain from allowing exceptions and extensions where from disregarding it entirely without a compelling reason to do so and we think compelling reason painfully can put the evidence here a burden of to trust the last part of the statutory interpretation and that is expediting the action the action here relates to the portion of the statute says the case that is filed within forty five days of the notice louise only argument to that is that because all of our patents were in the same notice letter because they filed the first action it necessarily covers all of the patents even though they did not suit top off on the three part size bands and i would submit that that puts form over substance is loose suggesting because there were seven patents listed in the orange book in fact there were more which they've given us how could it not to sue on now but are they suggesting that i needed to send s harm is exactly the point the judge later made in fact there was a motion for a preliminary injunction which judge parker found it was mooted by her decision on the statutory stay in fact that is the proper vehicle to vehicle to be used in all cases it would have given