please the court david allow on behalf of appellants echo brands and a special supply appellant echo does not deny that it defaulted in the original underline violation proceeding as previously explained it had good reason for doing this it was a small washington startup company with extremely limited resources and understanding insufficient to fight in one thousand nine hundred percent across the country it had ceased all production and a product importation as of that time movi manufacturing to the us and it was in gazed in a federal district court action involving not only the identical three twenty patent infringement but also its own pet infringement claims at that time well it was a law that played a default say we didn't than have the money you correct your honor but that is not some legal sure just given some background but it doesn't alter the fact that it did actively participate in the subsequent enforcement proceeding and three thirty seven k in commission rules allowed during that proceeding for it to rigorously challenge the remedial orders and seek the recession and we believe your honor that your honors that under three thirty seven g one which does not apply and three thirty seven k as well as public policy there's a number of very good reasons why those orders should have been rescinded in this case but wasn't there a temporary rescind event here pending the resolution of an appeal from the district court and why wasn't that correct because it should have been permanent your honor because there should not have been there was no domestic industry and at the time those rescission should have been completely gone away at the same time so in other words a temporary does not remove the cloud that's over echo doesn't allow them to proceed to get financing to proceed to conduct their business arm and other competitors are using the fact of that continued injunction out there in the marketplace to erode their marketplace and put the right now we don't know that for sure we filed a fall a petition after the june trial came out finding the claims invalid as well as not in france and in response they temporarily the i washington case only dealt with claims eight nineteen which were the only claims that were sort of in the i t c proceeding that remained after this court affirmed the invalidity of the rest of the claims act so you're suggesting that even if we were  we were to affirm the invalid it of a nation of the district court you're saying it's still unclear what the government would given that it is i think what the government should do is what they should have before it and rescind those claims because there will be no more valid claims at that point but based on what the government submitted all it said was that we're going to suspend it pending appeal they didn't say if the appeal comes out one where the other what would happen that leaves echo again up in the air what's going on in addition to all the other harm of the ongoing remedial orders well getting back to k and others which say that there's a change circumstance or an error in the law that we're entitled to go in there in there in force from proceeding and seek rescission of the remedial orders and both of those things apply here under three to three thirty description we don't think we're going to grant that really with respect to that your honor they have done it that's part of the problem is the inconsistency that's being applied by the government here there's inconsistency across the board we cited in our brief and in fact the commission admitted that there are a number of cases where in a non infringement finding by district court they did in fact grant rescission as well as in cases of invalid and there is really no driessen to treat those two differently you've got a federal court th found that these claims do not apply in that situation that is just for cation for a change circumstance which should mandate that the commission should rescind those orders we cited those we cited cases on both the infringement and the inability and now since june of this past year we have the federal court not only finding that they're in not infringed but claim through claims eight in one thousand are invalid as well and we went back to the commission and say well look now we've got invalidity which you admit it was a cha generous and will give you a temporary says suspension rescission but that's not good enough it creates the cloud in the produce that we outlined in a re from talked about here think of the public policy you've got a claims now of  what's wrong with the commission so well several things your honor first of all three thirty seven k expressly provides that even in defaulting situation during enforcement proceeding that my client is entitle to go  granted and you got partially and for the reasons outlined your honor the partial relief is insufficient if i if i may part of the point is during this rescission proceeding that was rigorously disputed by our client pointed out that there is an inconsistency here because the commission in for example motorized balancing vehicles in a nearly identical situation just a month before had found in a situation where there is both the fault in a non defaulting parties and the issue of domestic industry came up which they are bound to follow and find in any case they found because domestic industry wasn't found there they apply that to the defaulting parties the fault in parties that are held back into a subsequent enforcement proceeding still have rights even though they were defaulting before and part of those rights are they can challenge and say for one of any reasons either there's a change circumstance as there with the respect we did cite agriculture vehicles which was a forty seven investigation wire lector called discharge which was the two ninety investigation there were several situations where we sent a remedial orders with respect to products  where there was infringement as opposed to invalidity involved in those situations we're saying that the distinction between invalidity and non infringement findings by a district court or on remand or in any situation should not be treated differently it's a change circumstance it's a situation if you throw in the public policy consideration which is why is there and or and that's continuing right here where under the circumstances the claims are either not infringed or invalid where is the public policy where is the issue of a clattering proceeding years later by defaulting party wireline trickle discharge that that's a case where the were the accused infringer did did worse that than echo did here that's a case where there was an intervening district court finding of not infringement that came up while the enforcement proceeding was going on i don't think there was a defaulting party there i'd have to look and what the commission did not cases the commission dismiss complaint without prejudice to refile in this case with respect to the enforcement complaint substantially prevailed as to its actual conduct that it was engaged in the commission found that that wasn't a violation of section three thirty seven ships it makes sense and in that you cited in the appellant's brief going all the way back to s s i h going back to the early one nine hundred eighty s to the beginning of this court it's been the commission's practice in this case after the district court and it's not part of the record here it was afterward but after the district court found the patent claims invalid for obviousness we got a petition to rescind the order and the patentee said well we don't object so long as you take into account the possibility that if it gets reversed well we respectfully disagree i mean the difference is that once a pattern is found invalid there's no there's no way to win friendship whereas what we're dealing with your with respect to infringement or non infringement are the specific products that  to leave in order and place the possibility of it is certainly sufficient to leave an order in place at least when you've got a tactical default or as as what happened as what happened here you know what we have here also we have to remember is that in the sound as if they sort of have a policy of not suspending or getting rid of orders were there's been a finding of new infringement that is to a particular party to the best of my knowledge  or the commission has never done that and maybe even more importantly a district court has never done that we haven't found a single case and opponents of have never pointed to any or where well that's one of the history of enforcement orders over the year right that particular goods that have been challenged and for some proceeding don't infer that that's exactly right because there could be other goods there could be other goods imported to think same time there could be other goods imported a couple years from now what i'm hearing from from the actual conduct there are three types of conduct that have been at issue here and if i can just get through that maybe that'll help clarify stuff in two thousand and fourteen acro brought the entire pods into the united states and they thousand and sixteen eco was importing only its screens and rubber silicone or rings it was doing all of its classic manufacture in the u s and this entire enforcement modification proceeding was about whether that conduct whether merely importing the a ring and the screen would violate the order and the commission found that it wouldn't the friction so there's no violation as of that you've a good faith belief of not infringement and that determination is not is not on appeal i benefited it benefited echo you know for echo to be aggrieved echo would now have to argue i talked to ration is this court requires at the earliest possible opportunity as this court also requires that it's that it would actually like to go back to bringing all the stuff in from china that would like to go back to doing all of the plastic molding in the united states but that's just simply not supported by the record here it's not supported in the opening brief which couch the domestic manufacture investigation was still going not so as to the conduct that echo actually engages in and has demonstrated through the sworn declaration of its president that it intends to engage in all of that activity is protected even putting to the side the fact that the commissioners are even in force because of a later determination of invalidity so there is no there's just no there's no threat of harm here much less in a way that would be substantiated by echoed to support and it's a different case but since the commission's orders are in place it's not like the commission is adversely affected by this court's but what if we reversed on the bullet so how do we decide this case before him and then if you file again i mean what happens if we were to reverse it if you were a reverse invalidity and you were to up for you would also have to uphold infringement is in front of you in two to one five that's one thing i believe keeping the direct i started the the district court the direct appeal from the district court proceeding as all of these issues the claim construction of passageway whether that is infringing infer that they would have been found to infringe their basis for not infringing was that the shape of passageway so at that point you know they would be potentially liable in another enforcement proceeding if they were bringing in products and the united states what i didn't get to a couple minutes ago and i certainly have two minutes left is in its reply brief on standing echo talks about the thirty seven percent cost of bringing a ring production and screens back into the united want my relief i want to get rid of the permanent right so it seems to me that they have standing to ask that relief that relief is bigger and better than what's there you know they g so they cannot form they cannot ports or things just because they said well right now we'd rather do that they are constrained by the remedial order in terms of what they have the ability to they haven't signed in blood that they never had any intent and they're never going to be in a position of wanting to import night i mean that's the definition of an advisory opinion if the question isn't whether they might do it the question is whether now is the conduct that you say barring them from being able to get a relief they're saying we took that in order so we wouldn't be in trouble well if we took that we took that because of the outstanding war that's actually not sense and it's also not what it now that would've been a good argument for them to make in this case but if you look at pages twenty one hundred five through twenty one fourteen of the appendix which is the declaration of their expert that that wasn't their position their position they have on the record here was that they brought back plastic they were going to bring the plastics in sea united states anyway and that they probably did that's what their opening brief sounds in the reply brief they flipped their story they don't do it with the declaration and they don't do it  in anything any tangible concrete if if i could have one minute just thank you on the merits here with respect to the different patent claims there that word issue the responding party in this case although phil never challenge the validity of claims one in ten for the domestic industry rest industry isn't a jurisdictional requirement and the commission found consonant with la doesn't affect wanted ten but it's like oh it was the declaratory point of it's their fault i mean keep in mind that's why i'm going to mean that the district court action will have no effect on the domestic industry issue as decided by the commission as we see it right now i believe it to case involving as i said before a district courts elimination of its final judgment based on not infringement more than that in the cases involving invalidity and on enforceability we're not aware of allow a party to take advantage of a subsequent district court invalidity determination or unenforceable the determination and the commission order here became final in two thousand and sixteen no appeal was taken this is merely a collateral attack on the commission's i finally yes we did we did if we can take that to the bank and we did but that still doesn't change the fact what the commission is asking for is an open ended approach which violates leader versus acton's and everything else that's ever been going on right here there is no domestic industry the commission has an obligation to find a method to industry the a l j below found there was no domestic industry the commission refused to say one way or the other it cannot then rely upon any presumption due to the defaulting underneath to continue these remedial orders at this time rescission is the only option there was no basis three thirty seven g does not apply in a situation as here and layered all in all the others are distinguishable where you have presumption of domestic industry in this case even if this court were to hold that three thirty seven g one applies which for the reasons we outlined we don't believe it does there is no presumption of a lack of a finding does not amount to a finding that can be presumed for this court review on appeal for that reason there was an obligation from the commission below to find a mystic industry and it failed to find that here now remember claims five and eighteen were both held invalid for lack of writ but on the other you're on our clients have words and they come in all shapes and sizes but what it cannot be disputed is that during the enforcement proceeding where they were able to and did rigorously challeng do your honor in fact this appeal that we're at right here is from the m t a the found no domestic industry said that the reporter should be rescinded the commission then refused to consider the domestic industry didn't rule one way or the other that's what this appeal is from we're saying that they were mandated they're trying to raise that was in the enforcement we did your honor they were in there in force overseeing we did position petition to have them rescinded because of lack of domestic industry and the commission denied that as