and what's been covered a little less thoroughly in the briefs is the story of this case this particular case so i'd like to begin by trying to tell that story in a simple way because i think it puts the legal issues in perspective and helps one understand how to deal with and if if the parties needed there will be some additional time extended however it does seem to me that what you're talking about here now are sort of background facts which we're aware of them and again use your argument time as you extent it might apply in other cases i think should be left to other cases because they might be very very different some of its profits to the generic drug manufacturer in order not to lose its don't know cat but it seems to me in going back to the other point about distinguishing this hatch waxman contracts for the other is that as i understood it you were arguing that the reason that did and maybe we can ask the other side about that but the district court concluded clearly did he not that the hundred eighty day exclusivity issue was not in play he made that terminations by relying on his prior decisions annoying our motion  are expected to and plan to use its one hundred eighty day exclusivity period to discourage other generics from challenging the patent and there's testimony from milan next challenger other generics came in and challenge the patent they were under the impression that they were going to be that the hundred eighty gates to seventy period  issues that they might be able to get resolved in time to actually explode it a victory before the patent is otherwise going to expire and when they did that all of those challengers and this is uncontested drop out to the extent they never victories measures only as you make the point i think you're correct that inequitable conduct was never litigated correct and there were some other validity whether any other that's all that's on the course ability with any validity challenges  there were there were political islanders but in none of those cases none of those challenges that ultimately got resolved by the courts were the inevitable conduct issues that are the basis for our for our case could we don't know that we didn't result would you say assume for the moment this element of the analysis on the reverse in that we we would submit that to those facts are properly considered as well but when you say the weakness of the past what specifically do you have in mind there weak in what way weak on either alive and kicking so to speak or it's dead there's no kind of weak middle ground and you have a patent and it's it hasn't been turned determined to be on invalid or to have been obtained by the inevitable establish the pat was either completely invalid or completely unforeseeable with like if i could i'd like to put up a chart because i think that you are really getting down to what should the standard be and how should it work now is this is this part of the record i the two months and and the the eleventh circuit in valley drug and the solicitor general's brief to the supreme court in the democracy case are all in agreement that in some way the strength of the patent needs properly to be part of the n t trust compromised here because an equitable conduct would have taken years and years of discovery or whatever so what context is the judge here in your view was that the district court should have done some preliminary evaluation of th strength of the patent is an issue of fact to be resolved by the finder of fact now absent some kind of special rule to make that the province of the court that would be the province of the jury because unless it's unless it's suitable for summary judgment but it would be part of an analysis you know to to to ask oneself looking out at the facts what is the degree of weakness of the decision because it's going to seriously question that i mean if it's an equitable conduct and be a bench trial right not sure exactly what he has in mind there you know my own point of view but you know it's not i'm not trying to dictate policy i just that it's the law as it stands right now is that that being a fact issue unless there's an absence of issues of material fact that lends itself to summary judgment stories i think a court to undertake determining the relative strength of a patent not determining necessarily that it's valid or invalid but having experts come in and say well maybe it's subject to attack on this ground because of this prior art or maybe it's not adequately supported by written description of these claims but without really coming to a determination it just seems like to be a very kind of a kind of a fuzzy operation  make two points in response one is there are some cases where it really couldn't be very complicated we think this is one of the case of that in office in this case it's very very clear that the witnesses beyers own witnesses with respect to this issue of misrepresenting the effectiveness discussed to require some kind of bright line rule on one side or the other some people have suggested that the bright line rule should be you know they don't need to make any kind of feel like this over the past they can settle in other ways so the bright light who should be no proposal and in congress that's the you know i really haven't looked at that proposal lately to determine whether that is specific content of it but i think it comes close to that i think that's right but the connection of the second i take it back to the first one i raise fraud you don't even need to look at this reverse payment thing at all can jettison the whole analysis and just treat this is what the process that's point one point two is you know really primarily this case is a reverse payment case having  of four million dollars but the presence of that hundred eighty to exclusivity period becomes relevant and one of the main ways it becomes very relevant and was going to be part of my short actual story is that it explains why this having these generic challengers who were unable to have the time to resolve the core issue that are in the need to try and tell me again why because my understanding and i'm looking at what the district court concluded innocent his initial the settlement agreement would not carry the day it wouldn't have given them one hundred eighty day exclusivity in my mis understanding there was a lot of controversy about this subtle defense requirement and at the end of the day milan second circuit we filed our brief today this will be argued probably this summer on the second circuit will have a decision not me on a trust issue which is identical to the issue here there's a difference second circuit the plaintiffs are direct purchasers here they're in direct their consumers of course under federal law and the right consumers can't recover damages and under federal antitrust law under all are but so what they did here was to put it out five which is the time south you know that this has our that's our hope for jurisdiction yes now i have to say at the beginning something that may surprise the court the walker process case is demonstrably facially frivolous is very invention are far superior they have unexpected qualities from was general statements they extract a claim that we said that all of the compounds of the invention and there are many well off support or the prior art and they say that's a misrepresentation we reply well this court the federal circuit has some of those are general statements of superiority that examiners are cautioned not to rely on they're supposed to wait until they get that so in the law and of course the examiner here rejected the one is less than four the examiner knew there was no misrepresentation we were telling the examiner that this compound the invention on the left was inferior to the prior art or process so the examiner could not face secondly there has to be clear and convincing evidence the examiner relied on misrepresentation there was no misrepresentation we know until this data came along examiner did not issue the perspective a lot better out of five is a very narrow we now see how a clock is based entirely on what went on before the patent office totally what went on before the patent office as judge trager robb's or it's based one hundred percent on patent law now comp five is really interesting because it less if the court please twenty five different state laws that oppose oppose to rely on for collateral attack they got a bone screw released earlier by fraud they say the rest of my federal law is a federal regulatory scheme having this having a government regulatory issues litigated in the shadow of fifty states tort actions before a board are not subject to collateral review under state tort laws we don't do it that way they say just state action would be an appropriate collateral intrusion on the regulatory procedures  the guise of the complaints on tor and they say the p t o procedures themselves provide a remedy for of our business and of course actual fifty six will and they have described what the p t o does when we get involved with an equitable conduct and then they say there's only a narrow question here worthy if the if the if it cases well beyond exactly what happened before the p t o for example in the bow case what we're familiar with certain made which was that there was at least for a period the successful defense standard as a matter of law well what i'm saying is you don't even have to get into that interesting factual debate legal debate because the fact is that the argument run was people were deterred from entering which the other side contends was very relevant during the you know terms of the expiration date of the patent that at least for a period of time sic you focused on that period of time i don't know they ultimately case it was a very clear answer that it  whether somebody let's assume for the sake of argument that somebody was delayed for a year or two and then the only tried to enter and when they tried to enter they failed somebody who was excluded but be able to liddy the pat wasn't any damage done by that but assuming which we don't think the record shows but assuming that they were delayed they were excluded not by the what they sat mylan or what they thought might do but by the fact that we had a settlement agreement includes a clear hundred eighty day exclusive that legal or illegal and nobody ever comes are you saying that we would not strike down that settlement about their very broad and we know that it people were not deterred by any hypothetical thought they might have had about the article seventy period which is a matter of law somebody couldn't have here because they weren't successful challenger and we know that they know they couldn't enter because when they tried to enter they fail so there's no injury to competition because the reason people were not able to enter is because it was a valid patent not because of any e so there there's there can't be any actual impact on competition from the market if the agreement to one side everybody was excluded from the market by being valid scope of a very broad gal happen not by anything else as the patents that exclusion but in the alternative if you've got one hundred any need to seventy which presumably everyone would assume would discourage other generics from coming in and challenging the patent and you agree under those hate anybody who could read would know that bart would not have had not conducted that they had not conducted a successful defense they had not conducted it as a matter of law they had no period and we and we have either a hearing with an appeal of this court or an actual trial where we want it's a very very strong file and i guess we say that based these these arguments on how much money is paid in settlement really proxies it's a way of saying it was a proxy for whether the patent is valid we don't need a proxy here because we know the patent is valid and i spent eleven years of my life the basis of seems to me of judge traders decision was that the validity of the patent is irrelevant in terms of our scrutiny of the validity because it's just absolutely pursued it strikes me as a little odd that your a lot of your but if you think that's so compelling the why isn't the other side right why shouldn't the if you think that such a compelling argument in the context of a now i trust allocation the why wasn't the other side right that it ought to be part of the threshold determination that the jury in brooklyn deciding what a judge would have done in one thousand nine hundred seventy how that case would have turned out how strong the patent is and then a jury deciding what this court would do the it strikes me that it's a it's a bizarre proceeding that's being suggested but particularly this this case is not an appropriate vehicle for any of that sort of economic thinking because general statements of superiority that's not true they are submitted data to back up that statements lots of debt if you look for example in the appendix at the age of sixty five sixty seven or seventy five there are data comparisons that were submitted this was not just bad performance that shown in that column was prior art but they were comparing the compounds the invention to just show the prior humans that are and if there were otherwise any question about whether that's the way one would interpret that column then he claims that there is no light as i indicated before the breadth of the patent covering all the compounds shows that they were alive when you look at the patent prosecution history and the representation used with respect to the very different mr bartlett doesn't mention the doll case it is clear it couldn't be clearer as a matter of law and we have a strong side in our brief that shows this under the precedents of this court that the unlawful act that constitutes the any that no judicial process in the in the epic a support comes right out and says there was no judicial process in this case all that was involved was what happened in that was and likewise in the semiconductor case in the in the semiconductor case is what happened in the patent office that we're going to hold that to be preemptive thank you i think we we have you are