raises the question of whether the district court erred in granting summary judgment on morris's equitable intervening rights defense and this a court erred in several respects and mark yes this is judge wall to the protection of investments made or business can then branch of every issue and the courts that have applied that language over the years have determined that that protection of think it is it is the only i mean when you look at the statute it is the it is the primary animating factor of the protection that is offered by a quibble intervening rights and the court has this court is not held that way but the court has mentioned it in the seattle box to case recoupment is mentioned in footnote seven and as well recoupment played a large role in the ten circuit decision in the plastic container case which this court sides a few times and seattle box two so i think that yes the court is not explicitly held that but i think if that factor is ignored in the analysis that's correct and but as we pointed out in our reply brief when you when there is an equitable defense or any sort of equitable exercise of the court's powers that derives from a statute there has to be some linkage between the statute and how the court applies that and that's our argument here is that in this case there was morris made investments but morris also made substantial profits over a long period of time prior to the reexamination certificate being issued and you know there were twelve years during which morris was able to sell product and recoup profits and the record shows that even though morris would not morris conceded that it recouped its investment but it would not quantify that amount but if you look at the sales correctly that they had in that period and we're talking about a much longer period of time during which they were able to recoup their investments from two thousand and two to two thousand and fourteen so a conservative estimate is probably that they had profits upwards of fifty million dollars so there was a there was given that and given the importance of protecting investments under the statute its argument that the district court of use discretion and not according  weight to that factor in its analysis and in fact the district court of use discretion because it gave that factor almost no weight and its analysis it's sort of brushed right by it but the argument is  because that is the purpose of activewear to being right is to make sure that a company that made investments prior to reexamination or reissue is enhanced wrong later on in such cases like i i i think that the cases and if you look at this court's decision going back to the seattle bach two case there is an emphasis great emphasis put on the fact that those investments were made before reexamination  and you know in that case the the alleged infringer was allowed to sell its products because as the court put it stressing that all of the products were on hand when the ratio paten issue i guess that there might be some circumstances where there might where there might be sufficient investment or preparation made before reissue reexamination where something that happens after reassur reexamination would receive some sort of equitable intervening rights protection but that's not the case here and the reason why it's not the case here is that the nature of the product at issue is that these are very large pieces of industrial equipment that are installed in poultry processing plants and by the nature of the morris doesn't maintain some big a been told i guess to simplify say so let me ask you this are you saying th know you're i'm not saying that at all i paint that the recruitment could definitely occur afterwards if you have but you ation where there is an extensive inventory that has been built up that the court has allowed the court would allow the fringe or to sell those products after reexamination that's what happened in the plastic container case but the court in the plastic container case was very careful the th circuit in that opinion was very careful to limit that to the sales that were necessary or the infringer to recoup its investment it did not and it said in there that there has to be caution taken to make sure that equitable intervening rights don't just effectively notify the patent and that's exactly what happened in this case but there's a make a difference if there's only two competitors in this market i think it makes a big difference your honor because i think that what we have is that effectively since there are since there's only one other competitor for jay bt for john being in this market these equable intervening rights which were granted for the life of the patent with no limitation with no limitation to any sort of investment made before reexamination the patent because john bean is in a position where it's loan competitor was allowed now to do whatever it wanted in terms of selling infringing products for the life of the  because there were no limitations but on this it wasn't tailored in any way to protect investments that morris made prior to reexamination so i think the fact that in this particular case in this particular case is cont that there was a single competitor so that you would say that the answer to these questions is effectively i think it is fact driven driven and y is an abuse of discretion to apply the factors incorrectly or to weigh them incorrectly and i think this court's cases those are the years in which it has maybe not necessarily in the context of equitable intervening rights where the court has decided this issue very often but in other equitable defenses where the court has been willing to say that a court that a district court improperly weighted factors that a district  court applied the factors improperly and i think that's precisely what the court did here below the court took the factors and applied them improperly and gave that signed them improper waiting and i think that is an abuse of discretion i think there's also another  go your honor that there are issues in this appeal that are not strictly abuse of discretion there are issues that the district court treated as resolved as a matter of fact that were resolved where the record demonstrates that there were actually genuine issues in the terry effect there's an instance where the district court actually drew an inference in favor of morris which was the moving party which is completely contrary to the controlling standard for considering a motion for judgment and you know so those issues are intertwined with those as well where the district court made in another error in resolving genuine issues of material fact so it's not just an abuse of discretion standard as well the court reviews whether they're genuine issues material facts on a day novo basis and i would say that drawing an inference in favor of a moving party is certainly an error on the district court's case in part because inference as opposed to run in favor of john dean i think that there are other instances in fact the district courts entire opinion rest almost primarily on the district cour here and the district court never considered whether morris acted badly or whether it had clean hands or not it just sort of brushed right by it and it's and it's just to point the finger at john being given  that entire record your honor i think there are multiple errors here to justify reversing the district court voted to the use of discretion in the way that a way to apply these factors and also in the way that it treated the evidence by resolving disputed issues  fact at summary judgment on page thirty this judge well on page thirty six of the blue brief you say the record shows that morris willfully opposed the sixty two pat other than john shows drawing of the six to two patent were in the record specifically can i find evidence to support you on other than john shells on that same page of the brief your honor there is there  different product and it did not do that so there is evidence of that as well and we've shown where they now claim they have this brand new design but that brand new design was in existence since  five and that's demonstrated in the record good morning and may it please the court this court should affirm the district court granted a summary judgment on equitable intervening rights because this court has previously stated that courts have broad equity powers to fashion an appropriate remedy and that's exactly what the district court did not considering just one factor but seven different factors resulting in a conclusion that equable intervening rights were appropriate one of those rights or one of those factors i'd like to focus on was one that was only mentioned at the very end of my colleagues  discussion and that has to do with that they particularly the conduct of j beattie and the lower court finding that in fact j v t had engaged in bad faith reminding the court that this parties have been in several disputes since two thousand two and in early two thousand and two there was a patent dispute where morris was accused of infringing a different j b t or the predecessor of j b t cooling and applied technology their patent that resulted in mor agreeing to stop manufacture and then settlement payment as well only two months later the six to two patent issued and quickly after it issued morris began hearing in the marketplace that j bt predecessor cooling applied technology was telling customers that morris was infringing with this product so this is where you get into maurice's good faith as opposed to jay beattie's bad faith because morris immediately acted coming off of the heels of a different sought advice of counsel shared that advice of counsel with j b t and the letter that this court referenced in the prior decision in this case and as the court referenced in the prior decision that letter was received but not responded to so morris in two thousand and two began believing that j b t agreed with morris that the patent was both invalid and would not be infringed and we found out later in this case and discover the reason why j b t chose affirmatively chose not to assert the patent and the court noted some of this that j b t chose to pursue business methods instead were business reasons instead and made a calculated business decision to compete with morris in the marketplace because it knew or it suspected that if it asserted the six to two patent at that time that in fact it could very well put out of business and that goes to judge raina your comments about the two competitors and the lower court reference that as well that in fact if more were put out of business the questions of whether or not then the market could be supplied would be raise j b t purposely chose not to do that though in two thousand and two because it did not want another competitor to come in and fill that market void and to be a competitor that j b team might have a more difficult time competing against as referenced in the red brief on pages page thirty one j b t's president indicated that they would rather have the devil you know in morris rather than the devil that you don't in some european conglomerate that may come in and be a harder competitor so they decided to just leave the things that the way they were even in two thousand and nine your honour's when the parties were involved in a different litigation over a patent that we were actually before this court thirty days ago on a different appeal there was a litigation there and it came up in discovery about the sixty two patent and even then j beatty indicated that it would just leave things the way they were however everything changed in or something changed in two thousand and thirteen when the business decisions that jay beatty had made apparently were no longer serving its purposes so it does it off the six to two patent took it back to the patent and trademark office seeking the rig's am arguing alleging that there was a substantial new question of patentability on the very same prior art that morris had a dentist to j b t in two thousand to over a decade earlier presenting some of the very same arguments in the petition for reexamination now j b t didn't tell the patent office this as we stated in the re and that's still up in the air for me and that has to do with the recruitment investment now i understand that the court said at some point that there was a recruitment over all the thank you for the question and then the read re from page seven morris didn't we did not to answer your question there were not specific numbers to that morris acknowledged for purposes of summary judgment that it had recouped the monetary investment and promotion and goodwill from having converted two thirds of his business to the allegedly infringing product from two thousand to all the way to two thousand and thirteen which is very similar to what was just just to be clear  raise recoupment being merely one of the factors and is not the actual language of thirty five u s these two hundred and fifty two nor the main purpose instead being the protection of investments in the court and looking at that and if i think i understand your correct your question morris did not offer specific evidence with regard to the monetary amounts however he did acknowledge that it had monetary recoupment  but it did raise the issues with regard to issues of recruitment with regard to its brand equity and the customer expectations for the the allegedly in french product which was a direct competitor with  sole provider in the market j v t and that goes to the courts in judge raina as the lower court spoke about that it would not be equitable to require morris to eliminate two thirds of his business that would and i think that's where the sorry don't go to and i think you're right if i understand your point i think that the the lower court and more says position would be it's a broader consideration than that because it looks to other factors as i was talking about and specifically with regard to j b t's bad faith had j b t responded in two thousand and two and there's evidence in the record that morris would have pushed its products in a completely different direction since two thousand and two that morris you know as puts millions of dollars into r and d efforts and could have sold other products so to answer your question just ran a morris does acknowledge the financial recruitment j b t's bad faith over the course of well over a decade has to be a factor as well and it was a factor for the lower court that you know favored the finding of intervening rights here with regard to the design that the court characterized as accessories that were designed over the course of that decade for the product that had been alleged to have friends that if morris were indeed enjoying from being able to sell that product if it would be able to come to continue two thirds of its business would be immediately gone so with regard to you know if it had the opportunity again had j b t responded in two thousand and two with the basis  of his response to the positions of invalidity then morris could have done something different or if morris r j beatty had told the patent office that in fact the prior art it was considering or as presenting as a substantial  i don't believe that's a correct mike or a correct understanding the facts with regard prior to the re examine morris have been selling a product since i think two thousand and two which is the allegedly infringing product if you were if you're speaking about the point that my colleague raised about a potential design around i think there were some initial back of napkin type sketches that are that were referenced earlier that could be potential design arounds and i think my colleague was referencing product you know j b t was a legit to infringe or not because i don't believe that's in the record however in two thousand and two morris did begin selling the of the alleged infringing product and sold it consistently until the time of and then around two thousand and fourteen and then again after this court reversed the prior equable stoffel summary judgment decision of the lower court i think morris wrapped up the process for designing a potential design around and then you'll find that your honor at the appendix pages seventy seven to seventy eight just while it mentioned john shelby his affidavit talks about the design around efforts with regard to an alternative design and i think that validity issue since two thousand and two it ultimately was able to get the patent office to institute reexamination and as this court found in the prior decision and obtained substantially different claims the point we need to make here too of the two thousand and two letter and again i think there was testimony that mr shell and morris thought it was a dead horse however in two thousand and fourteen the very st time morris came to find out about it was when a that j b t sites where you know the we distinguish these on the facts where the alleged infringer or i'm sorry the patentee operated fairly quickly from when either the path was invalidated or found out about the alleged infringement and prepare for this oral argument your honor is one of the things that jumped out to me when all of the cases that were cited by jay beatty plastic container and all of the others not a single one of them deals with the bad faith conduct on the behalf of the pa been protected and it had now issued design why should the intervening rights extend beyond the recoup because you can ignore the bad faith issue your honor  honor i think the st thing is the bad faith but then the nd thing is recruitment is not what the statute says and protection of investments and as judge laurie you said a moment ago that is an issue that perhaps this court has not ruled squarely on with regard to what two hundred and fifty two may or may not require so therefore protection of investment i'm not aware of any decision from this court says that it isn't limited to recruitment so the answer your question judge that if the statute was only in that you made your money back in your hole and you're not allowed to make any profit then perhaps it seems it seems that this is going also reading the cases that once you have recruitment of an investment then there's nothing left to protect well i think that doesn't go to the heart of what is the investment and then the court looked at that and said it's more than just a financial rec morris you know as a battleship had built its business configured two thirds of its business around this allegedly infringing product that it was more than just one order that it would get and it would be made whole for that one order there was more to it than that and so therefore that that morris had invested more than just the investment it would have in the sheet metal for that one given product that it the order it may have gotten at the time of the reassured or their examin crane's conception of equitable intervening right and the argued here today just shows that what we are getting our brief is true which is that morris is trying to use equitable intervening right as a stand in for equitable stuff which this court has already held does not apply here morris is arguing the same exact facts that it argued in the equitable thoughtful analysis and this court held that there was no misleading conduct in the in the recoupment that's not in the statute as not in those terms your honor but what we're asking the court to do is not to amend the statute or importing the sort of language into the statute but we're asking the court to do is to apply the statute and the court has to determine how that is to be done and what the court has to do is when there is an equitable defense provided by a statute that equable defense as is supplied by this court has to have some connection to the purpose of the statute and the purpose of the statute the purpose of thirty five dollars u s c suo two is the protection of investments and as courts have held as we cited in our brief one  of any sort of quantification of that amount of recruitment because i think the amount in question would be very large these are very expensive pieces of equipment that sell a very large profit and as we showed they had over thirty million dollars in profit just for a four year period vestment investment in a product this is just continuing to to develop products and to maintain this and simply apply whatever standard it wants simply because it has discretion simply because equity is in play the court passed to link its exercise in its application of equity and its and its application of distressed discretion into the statute and again it is an abuse of discretion not to give any weight in the analysis and that's a key thing as well your honor it's not as if the court gave made a discussion of recruitment and then decided that other factors simply have waited it didn't really give in any way to analysis at all and if the court applied allows the district court to use its discretion as it did here and as mr crane urged the court to do in his argument equable intervening ride essentially gives collapsed into the district courts determination of who's good and who's bad and so short it seems to me that you on this to read into the statute the factors that are just not there it's just protect the investment that take various forms of clue to goodwill or business reputation that's that's part of an investment i but but that what the statute does not say is when does this of discretion that's where that's where we find out where the application of the course discussion has been abused and yes your honor and that's precisely what we're asking the court to do which is to examine the way that the district court applied you know why the statute and again i think that the factors that we've listed in the brief which derive from if you look at the case that we cited that this court case those factors derive from this court's application of equitable intervening rights in the seattle box case the st four factors are all mentioned in seattle blocks to the th in the six factors come from the th circuit's decision and plastic container there has to be some sort of guidance for the district court and how to apply its discretion and how to apply equity and it is an abuse of discretion for the district court to simply apply those factors in an incorrect manner or to not give a sufficient weight to the factors that's the standard of review and i think that the standard of review does not allow the district court to engage in some sort of a freeform exercise of applying equity simply because it think it's merited there has to be some sort of linkage from the district court application of equity to the statute and that's i think that's the key point here is that there just isn't any linkage like that in this case the district court really did collapse this consideration into this sort of who's good who's bed and then i'd also point out that there are genuine issues of material fact in that determination it's not