are based on substantially the same operative facts, regardless of the relief sought in each suit.” Tohono, 131 S.Ct. at 1731 (emphasis added). The Federal Circuit recently explained: After Tohono, it is clear that we must: (1) not view § 1500 narrowly; (2) focus only on whether two claims share the same operative facts and not on the relief requested; and (3) determine whether two suits share substantially the same operative facts by applying the test developed in Keene Corp. It is clear, moreover, that our analysis should consider the principles of res judicata to which the Supreme Court pointed. Trusted, 659 F.3d at 1164. Determining whether two suits are based on “substantially the same operative facts” is necessarily a fact-intensive inquiry. See, e.g., Tohono, 131 S.Ct. at 1731 (<HOLDING>); Trusted, 659 F.3d at 1167 (focusing on
holding that transfer would be appropriate when two identical cases were pending in the separate districts of the same state holding that the trustee did not breach its fiduciary duty when its actions were consistent with the trust instrument holding that even if the standard for waiver is clear the standard was not met holding that trial judge is legally correct in dismissing declaratory action when two actions are substantially the same issues were identical and the identical action was still pending holding that the standard was met when two actions were related to the same assets and were based upon almost identical breaches of fiduciary duty