stoffel and never has in fact it says in validity shall be a defense in any action that's essential to the fundamental patent bargain the public grants exclusive rights but only to the extent inventors publicly share useful advances in knowledge confirmed that scott paper meant an aside or was free to challenge the validity of the pad and we're looking back on the state of the law before nine hundred and fifty two said that this court had by then undermined the very basis of any general rule of patmos stoppel the logic of this court's decisions require abandoning a finalist exposing bad patents is vital patent law policy and allowing a signers to do so carries no meaningful costs no reliance interest and in the way of eliminating this anomalous doctrine and a patent law specific limitation on the rights of a signers is nothing like claim for inclusion or issue for food and or even equitable stoffel which are generally applicable rules woven into our basic notions of fair and efficient litigation at the very least and inventor should be allowed to show that the assignee is asserting a claim broader than what the inventor adequately describes it enabled not even a stop by deed aside or stop will suppose that model supports preventing challenges that appear on the face of the patent and when is here the assignee not be a sign or prosecuted the relevant claim ninety years after the patent rights were sold and did so to prevent competition from the assigner is new improved device assigner stoppel is particularly at odds with patent law policy this court order the federal circuit to consider  out those competing policy arguments well i think the main policy point is that our our our patent system absolutely believes in encouraging innovation but it's that as i referred  opening to the patent bargain it's for there's there's a there's a bargain on the other side the inventors have to provide among other things description and enablement of what they've done they have to give that to the public in order to get the benefit and our patent system depends on challenges to ability to make sure that we don't over protect we don't provide the benefits of pad exclusivity without the parties doing all the things without the inventors doing all the things necessary to earn that x substantial public benefit that includes the time limited nature of the of the exclusive and scott paper and includes among other things the written description   any complaints about the position of the united states on how to limit yeah i think i think we would certainly prevail on the position of the united states i think the most important thing to say about the position of the united states is that we do not agree that this court should simply send it back to the federal circuit to figure out whether the style should apply in this case this question to do that in this case for a number of  reasons st it's exceedingly important that the assigner stoppel issue which is the threshold question it's going to open up or close a complicated question about validity and involves experts in litigation and all sorts of other  not yeah so just to thank you justice thomas our argument with respect to that is there are we don't dispute that there are times when common law principles inform the background assumptions against which you know that they've been part of the common law and the uniformity with which they have been adopted not just in patent cases in and not need to be adapted to patent cases but are applicable generally across the board i would think issue  claim preclusion is a background assumption of every statute every cause of action congress writes unless it says otherwise this court you know for hunt for more than one hundred and fifty years has said those doctrines are implicit in the notion of a fair and efficient judicial system a final stop is nothing like that well as a titian and here i'm really interested in clarification more than anything else on this point but the petitioner years  suggests that they say suggests that the the inventor child a true cry when he originally filed his application had the same thing and they point to this page and i know three and you'll notice one thing one most the most conspicuous an obvious straps moist by conforming to the shape of the universe uterus and traps moisture there and they're saying that true cause i did that as well and there's simply nothing nothing at all in claim thirty one that even remotely suggests in favor of some form of the good doctor now you want to abolish it entirely but we have many breeds that suggest not entirely b of limitations in your opinion would be the best and in particular as the chief asked what's wrong with the limitations set forth by the government well i'll start with i'll start with the government position and i don't want you to go back to do nothing i've got that point i want you to choose among them understood understood justice  i'm going to i'm going to start with the government's position my fundamental quibble and it's really it's really in this case a quibble with the government's position really turns on how how to implement this materially identical i think that's  as introduction of ambiguity in the application of the doctrine here's how i understand the government's position this may help the government seems to be focused on ensuring that if an inventor has made a genuine representation that his invention a compass is you know as much as the assignee ultimately obtains that the inventor should be held to that and my concern is that if you if you go back to be a stop  aidid roots of this kind of genuineness the kind of representation has to be rock solid it has to be truly from a warranty deed accompanied by a seal is a special kind of assertion about a true fact in the state of the of the world in all of the law and to allow debates over the scope of never issued patent claims like claims like application claims thirty wanted to join appendix nine o three is to is to introduce a completely different sort of ambiguity into the process than that has any kind of basis for not stopping so i would say it should be you know very very close to tax would require a very very close to textual identity and importantly i would also add in the government's a little ambiguous about this it has to have been pending both at the time the party against whom the stop was asserted a signed away the rights and the party who is a estoppel obtain the rights in other words it has to have been a representation that was made and actually the somebody looking at the patent file at the time things was still being made at the time of the assignment is the court that congress created to deal with these issues has worked out a body of precedent on it and there are policy arguments in both directions there are potentially influential supporters of both sides of this argument why should we get into this would we not have to overrule some of our precedents to do what you ask no justice alito i don't think you would the only precedent that has been that is even purporting to require being overruled is formica and remember formica allowed a party on a sign or to use prior art to now the scope of the claims the government agrees that today that's an invalidity argument this is exactly the kind of doctrinal dinosaur as as this court said in kimball that you abandon that you give up on leader and scott for micah in favor as we've argued in our brief and we can we can get into this if you want we read formica exactly the way the united states read formica in the catching their cases as providing only implied approval this isn't of this isn't the kind of precedent that you have to you know you have to treat as settled and it's because it doesn't appear to have been sells and i would emphasize also scott paper it's you know and as this court said in catching it expressly allowed already did the work expressed the allow sign or the challenge of liberty it is exceedingly difficult to come up with a principle leaders that it's impossible to come up with a principle that can constrain the rationale for allowing a signer in the assignments god paper to challenge challenge or will that be against public policy in some sense yeah i think you know this court hasn't squarely answered that question i think in fairness this court most of what this court has had to say on the subject of back action points away from allowing parties to do that for the same reason that this court has repeated has has so deeply undermined assigner stoppel this court has said over and over for more than one hundred and fifty years going back you know for roughly one hundred and fifty years going way way back saying that it is critical that everyone be available to challenge the validity of patents assigned oars in particular are a super well position to do that and do the public service of invalidating bad advice and freeing that yes she's proposal is really to bring things back to where westinghouse rested correct well i don't think so because i think the estes proposal in fairness is very very close to our view about exempting one section one hundred and twelve challengers like ours and you know obviously the the the attorney for the government will speak to that issue herself but you know they base a that be but threshold question of whether a stockholder can apply in a eleven shouldn't why should we in to fear when this type of defense has been approved for such a long period of time well let's not understate the gap it's thirty years without anybody thinking a sign or a stop or what's the law between we're and diamond scientific and it would be an astonishing inversion of the judicial hierarchy for this court to infer congregational acquiescence to the federal circuit view on patent law even while this court's decisions and scott paper and we're had for thirty years left the doctrine dead i think that's i don't think there's any basis for any kind of post an act meant any kind of keep that would be an uncommon and never before seen the standard of post an act meant inference and i also think with respect that the federal circuit if it persisted for so long only because the federal circuit has exclusive jurisdiction over patent law judges what are you going to certain that mr hultman i'd like you to assume with me as you did for just a spry air that there is a lot of precedent for some form of the stock trend that westinghouse called it a settled rule that scott paper did nothing more than create an exception to it and that leader said that the equities were far more compelling for a sign or a stop all  than for the licensee a stop of that they eliminated so let's just say it's a settled rule and you need some special factor to justify overturning the doctrine under our starry decisis principles assumption was that scott paper created an exception to let left the rule in place so what are your special factors for overturning the basic rule what makes it what makes it a doctrinal dinosaur is that what's got paper and and formica considered non infringement arguments are now as we sit here today invalidity arguments practicing the prior art defenses it is actually an invalidity argument now rowing the claim in light of the prior art is  you know a kind of time it will absolutely method of last resort and you in fact is preferred as an invalidity argument so the law has moved in that respect in a significant way when we're specifically said that court no longer a general rule so i think under these circumstances oh i would also add say and let me let me take you to a different place let's think about the core application of a sign or a sample and i guess i want to know why it that you don't think that the score application makes a lot of sense and accords with our basic principles of fairness so let's say that an inventor invent something she intends a patent she later sells the patent and she then ar invention was completely obvious all the time and isn't patentable so the question is why is it fair to entertain that invalidity argument it seems as though it's a total bait and switch right if it's a bait and switch question mr ben so is there a meaningful difference between that case and a case where the inventor invent something she swears an oath she transfers the application before she receives the patent and the final patent is exactly the same  application yes i think there is because i mean in that situation if again if she knew at the time she swore the oath that she reached her duty of candor then i think you could have  which understand the criticism tough and that the s c says we can we can we can save the day we can fix it and it's going to be more than equitable stoppel but it isn't going to be that much more arm's length valuable consideration materially identical claims i want to know what i'm buying there what what what i know how to apply equitable stoppel what kinds of questions do you think will arise in this court will have to address if we bless this new new revised and improved version of a site or stoffel thank you just as course as my view on this is that the most troubling question that you'd be by is what to do about the disputed meanings of never issued by this court and it's made clear that it is you know something in the nature of approaching text with the identical well then you have i think a fairly a strong basis for being assured of consistent application but the the risk of inconsistent application the risk of that in her never intended something but is later with the benefit of hindsight and and you know an able able lawyer rang as i as you know the attorneys for a logic are obviously able  lawyers going back and and filling in inferences and assertions about what was written down in an application in one thousand nine hundred and eight means should be understood to mean today in light of everything we know today i think it's printed this and i don't think we should be getting into that but why would the equitable stop will solve the problem because equitable stoffel is is focused on actual representations you know you need to have an actual representation of what is it and you also need to have  the delta here most of these cases involve small inventors assigning patents to very large corporations and who are fully capable of examining the patent and may be in better position to identify its  the disadvantage of the side the large purchasers to the disadvantage of the individual inventors that's that's exactly right i think one of the things that makes reliance so important is that it ensures that there's a kind of something something akin to a meeting of the minds everybody knows at the relevant time what they're talking about and did having to figure that out with the benefit of hindsight you know here we are almost blowing away relies for acquirement just gives the pretty pass to the large eliminate the doctrine of a sign or a stop at all and i guess i want to pick up on justice kagan is questions on that you have chief justice taft of course and westinghouse referring to the doctrine at that point in one thousand nine hundred and twenty four as well the special justification and particularly in a statutory case where as justice alito said our our doctrine of star decisis is especially strong so why why get involved so now we have something that's no longer actually a rule and leader already a will already recognize this so in other words this is the kind of as it as campbell says not trying to dinosaur it has been whittled away it has been the arguments for it and consideration i think that doesn't hold up to inspection it didn't discuss the relevant statutory language it didn't cite hope manufacturing which was the principal case from this court thirty years earlier that it said well i went through i respondents brief they say that assign are softball has a gender series for alliance interests which is something we also have to think about and they say just want to get your reaction to for decades millions of patents and applications have been assigned on the assumption that a sign stoppel bars a signers from later challenging the validity of the assigned patent rights just want to get your reaction to that yeah i think my principal reaction to that is for nearly thirty years there was no case the client side or stoffel courts had said it was dead commentators had said it was dead and for thirty years between lear and diamonds i to fix there was no issue about patent assignments there was nobody running around claiming that their reliance interests had been undermined and true  you know that the federal circuit's rule has been in place since time unscientific but let's you know there's been no discussion of the magnitude you know that these days the notion that parties pay a premium so that if because a signers are going to be able to challenge ability the pad hatton so is there any way that it's about a lack of alliance interests if you assume that those allegations that your friends on the other side make are true would there be any case for habitable estoppel here i think the case for equitable stoppel would be dead i mean there device the only thing they have but they never said mr truth i said anything to that effect to them and the only thing they've pointed to again is this application claim thirty one dollars and the respectfully it just doesn't do that it doesn't it's not only doesn't have the language in the their claim they didn't pick up application claim thirty one and prosecuted it was a different claim and they did it because it doesn't have the claim term applicator head the closest thing it has is the term electro to r and then turning around and we'll see the problem you suggest that there could really be no alliance because people especially sophisticated parties just discourse suggests are doing their own investigation of the pattern solidity is there any reason why the reliance incurred or why there would be reliance by the parties for the assignees that could hurt them when you suggest that they're perfectly capable of analyzing the pattern so they're not going to be led down the primrose path by the a sign or yeah i mean i think with respect to this issue in particular section one hundred and twelve all you have to do is pick up the pad specification and look at it and you can find it there's just no explanation at all that could support the moisture impermeable device so i don't if they if if i don't know what they could have relied on under these circumstances but i'll i also think it's important to note and one of the things that hasn't come out is that when you have a patent application there's all this turncoat concern before a claim issues the patent prosecution process and both parties agree about that necessarily involves a lot of give and take with the baton examiner sometimes you go back and you do your own further research or further work on the product and you discover new things about the product and that requires changing the claim sometimes it requires removing claims sometimes it requires expanding them sometimes it requires narrowing that method to map mr hoffman thank you and then just to complete that question the fact that you you have a patent claim that ends up looking different that says that the inventor thinks no longer thinks that what they filed you know paramount publics and hockey and other cases make clear that the inventor oath is not is not violated by simply deciding that if it's not a viable patent look at this discussion makes clear a sign or stoppel is a doctrinal dinosaur and we should abandon it but at a minimum no plausible justification supports applying a sign or a stop we'll hear a logic chose to draft and prosecute its own broad claim that finds no support in true cause then fifteen year old specifications and it did so precisely because it wanted to frustrate competition from  having gone beyond the specification it has also gone beyond the range of any even arguable stoppel as a matter of equitable stoppel or any other kind of a stop this court should not allow a signer estoppel to be wielded as a sword to frustrate legitimate inconsistently only when the claim to challenge is at times to the same as the claim says foldit time line but while we agree with petitioner that the federal circuit got it wrong we don't agree that this court should get rid of a sign or stop all altogether lower courts have applied the doctrine for one hundred and forty years this court approved it in one thousand nine hundred and twenty four and congress hasn't seen fit to eliminate it over all that time assigner foucault can still play an important role but only if it's limited to a true estoppel doctrine valuable consideration news our basic point here mr chief justice is that if there are circumstances in which someone agrees to transfer any rights to an invention before that invention exist or before any bargaining over the value of that invention then you can't really be said to implicitly represented that and pension has value and it sounds very much i'm sorry go ahead i if that implicit representation that there is over inventions that the man discover in the course of their employment to the employer that would be or wouldn't be valuable consideration we think that  to some reasons why it might not be but again we would leave the unlawful so you see it can't well says the fed circuit you can't argue that you're attacking your own cut so i think by god they're forced to move conventional in the public forever and they can't or you even something like that they can't even make widgets prime you see the problem i do jim in our new salting that i think we're solving it in two ways there are two basic questions that we think need to be addressed before applied the st is is this a real transaction and that's the discussion i was having with the chiefs is this the type of transaction that someone might be said to be making implicit warranties is this sort of an arm's length sales between party a party b and ab could knock out many circumstances like an employee who agrees up front to give anything invented and then the nd is is there a match between what someone says was valuable at the time of the sale and what's at issue now and we think if after a does your come from is just what you think is good policy no just so we don't we do think it is is good policy but we also think that it derives both from this court's decision and westinghouse and before that from basic principles stossel by deed and there has been no a lot of discussion about equitable as powerful here but i think it's important to remember that common law a scalpel consisted of  a question that a court left open in westinghouse and i think westinghouse identified the problem is that and what it may be harder to know whether to do it our own way and this is a pending patent claim as opposed to an issued claim and so we're trying to answer that question with they're reviewing out westinghouse and again a couple by d and we think the answer is well you have pending claim have to look like or or be attention wave the same as the issue of claim that you're now thing is breach questions of over broad claims and you're not your testament reached that at all meaning you would just look at see spouse to the time the claim so it's claimed at the time of assignment and those issued in the pen and you don't even get to the question of whether or not just the spiers question whether or not that reading is overbroad now on your st question anderson mayor in terms of petitioners women and i think we are fine with the requirement that this be rock solid i mean we chose the term materially identical and think that means ultimately bringing that challenge that limitation we don't agree with we think this of focus on the if by north representation and here i can question about claim construction it is true that a claim construction has i think changed to some degree free standing practice thing that prior art can well that somehow that in my mind gives credence to the council that maybe the doctrine has lost its utility because westinghouse was really premis on the claim not dissimilar from this one that the if you read the claim in context it would be overbroad to the description in the other claims  that doesn't change the ultimate point of what going out which was you can't have a core attack on them value of something that will leave at the end something today before you may have implicitly represented you justice kagan three examples in your brief of places where you think are you a reformed doctrine a sign or a stop will wouldn't apply or might not apply it's pretty invention assignments continuation applications and changes in the law can think of yes ok mr hopkins said when i gave him what i considered to be the sort of paradigm cases of assign aristotle and asked whether they should be a stop he said yes but they should be stopped under the equitable stoppel doctrine and i take it would that would do for him is that it would impose a reliance requirement and that it would impose a sort of extra special affirmative clear representation so there could be nothing implicit about it maybe he wouldn't rely on the ils i'm making this up a little bit but i guess the question is what's the difference between an equitable and a sign or a stop all in your mind as to these westinghouse and so i think the court has already made clear that that's a different branch almost out of doctrine and what we're getting at here is not necessarily about one party misleading another as much as competent and conclusiveness in a choice of lying on a stop or by deed and the analogy to physical property it allows your test would allow liability even when there is no misrepresentation of fact and the buyer often in these cases large and sophisticated more so than the seller could easily determine the validity of the patent on its own and is better position to do so and you also get rid of reliance and i guess i don't understand why we would impose liability on statements that even you'd agree were utterly meaningless at the time and all that points to my rd question and then i'll stop and that is if we're going to look at a stop and doctrine i guess i'm a little confused why we look to real physical real estate as the example where deeds recorded deeds have a special role in our in our system and have a special validity rather than personal personal  property where these elements misrepresentation of facts and and reliance are required given that patents are so easily killable and challengeable in ways that physical real estate much harder to to follow up on the three examples on page twenty of your brief that justice kagan was referencing and focus in particular on the st one to make sure i understand what you're saying exactly the brief says if an employee assigns to his employer all the rights to any inventions he may develop in the course of his employment the assignment generally would not imply any representation as to the patent ability of particular inventions and i want to know what you mean by someone might be fair to implicitly represented the copyright and it's easy to see that if we're talking about an arm's length veil between a and b if we're talking about an act and the assignment of any invention that haven't yet even been invented bright line rules either we have it or we don't or we can do this middle course that you're charging that as you say no court has applied for it seems to me that your approach doesn't give us the efficiency of a stop or doctrines materially identical i mean would that be a battle of the experts so i think in an ordinary sense no airport talking about that and or are these claims under the same claim limitations or other extra claim basically treats the application of an equitable last album principle as an off the ledge and that the underlying problem that we're trying to resolve how much are you driven by a starry decisis here as opposed to if you were starting from scratch this is what you would propose that the court adopt i think that we are probably somewhere in between those two things and given the long period of time in which us on our style has existed and in which congress could have acted we give great i guess i would just emphasize that what we think is the core advantage of our test that it puts intellectual property on par with other kinds of property whereas the parties series and would create a mismatch in one direction or the other so when the nerve on one side wants to thank you mr chief justice thomas please the court nice to twenty four this court held that absent or stop a was manifestly intended by congress in the one hundred years since congress has maintained the relevant statutory language through multiple revisions  patent law this court has explicitly refused to overrule the doctrine and dozens of lower courts have applied to ask more thoughtful without significant incidents or controversy including recently in diamond scientific which explicitly incorporated the claim construction doctrines of western no but i'm going to ask this court to disregard all of this and the service of the purportedly paramount goal of eliminating bad pass but pass laws have other critical objective including incentivizing scientific progress through the protection of patents and fostering predictability in commercial transaction a logic respectfully submit that if the costs and benefits of that snow were stoppel are to be real weight it should be congress the bargain in this case included mr tripp call us co inventors expressly selling the rights to future patent applications the parties valued those rights based on the understanding that responded with secure whatever claims the patent office would allow in this case a claim just like the one that mr tripp successfully secured allowance of with the original claim thirty one dollars and that mr two cars were not subsequently challenge their validity and if mr guy wanted a different deal he signing some authority for it but you have to weigh against that don't shoot the court's description of the signers topple as a failure and the courts statement that to whatever extent that doctrine may be deemed to whether or not to reverse westinghouse and expressly said it was not doing so rather it created a narrow exception based on this court's long held concerns about temporal expansions of past monopolies in l context was far more compelling than in the licensee context that we're addressed so while there has been critical language when the court explicitly were full refuses to overturn a case there's no conclusion other that it remains good law i'd like to see if there's a difference between your position and that of the solicitor solicitor general in particular for the person who enters employment and signs a general  that yes your honor apologies i would suggest that employers pay employees for research and development they provide the resources to perform that research research and development it is not an equitable for them to expect that the fruits of that research should be given to the employer so i think we do disagree at least to some degree i mean i i can think of circumstances time he filed his application he did he thought that he was entitled to a claim without moisture transport he fought for claimed thirty one and succeeded in attaining kline thirty one that did not have not wish to transport before the assignment and so when the logic took this portfolio over when they were assigned it they had express representations from mr cobb i that he was entitled to the very claim that they now say were not entitled to it was only after the fact that he purportedly changed his mind and realized the error of his ways and of course that kind of financially induced change of memory is precisely the kind of morass that ass morris awful is designed to avoid  noted when the supreme court weak and contributory infringement for example and emphatically rejected the supreme court's rejection i'm not sure that appropriate legal language but in any event the  wholesale change certain provisions of patent law it once again just reiterated the assignment provision as it seems as though you are you want to congress by statute to make changes to the for all to congress and it should be up to congress to change it right here just as prior how do you respond to what i've gotten out of some of the briefs there is precedent has problems for eighty years old a one hundred years old what's changed when employment practices you see the general assignment go to work somewhere else in the new companies afraid to go anywhere near it nd nature federal circuit you can't even argue that result result extension of the many important patent monopolies we shouldn't be there and which in fact will cost the public that alone advances and you can imagine that right now i may be overstating the time understanding it now so they're saying you do something one side says it there's nothing you can do except abolish it case so if it's changed and i'm out but not in kind secondly one thing that has changed is that the p tab through the american benefactor now allows an inventor to challenge the very thing you are concerned about whether it be a matter of prior art or under post grant review it be a matter of issues of written description or enablement we also your honor has your question hinted at privet the issues and of course there if if if if an employee goes from company a to company b and is not sufficiently directing the activities then the privity would break the chain the pretty analysis would break the chain and you would not stoffel and finally there are as i noted before if the inventor thinks that the way company a characterized his or her invention is not right that he or she can refuse to sign the oath and in that case again you raise the prospect of breaking the chain but if an employee at company a turned around and for example found the company to compete against the very work he or she did that i think  this isn't tethered in some way to the scope of the rights that were actually saw the sign then i don't know why it's fair to stop and assign or from seeking to invalidate something where she did not actually assign so for example if the original all seventy two dollars application had only one claim should mr trump be stopped you did something that he didn't attest to that wasn't within the claim specified what sense does it make not to let him raise that defense that we respond to your honor st of all from the reliance perspective that he was paid and over that was paid three hundred and twenty five million dollars he personally included just one item you then changed are you saying he planted it money knowing you would and could change it so you're just out of luck i wouldn't phrase it as out of luck novel it was he knew well that he was right here for you to rely upon westinghouse and diamond scientific quite instruction for principles but we know in this case he's wrong we know you're wrong for two reasons st the patent office originally go out claim thirty one and they try to institute ip you are against claim one and didn't even achieve institution so the fairness here we agree that there are issues of fairness but if you're going to rebalance the equation that is for congress not the courts to do that balancing justice kogan i'm sure mr wolf you just talked to just a sort of you are and before that to justice thomas about this case and how we should understand things to have played out over time but let's just assume a hypothetical case and i'm not meaning it to have any necessary relationship to yours and the hypothetical is an inventor who assigns an application honor st of all she can go to the patent office and institute a post grant review and make that argument to the patent office to an organization that is not and no i'm quoting here from the i p l a brief and of course there are the folks alternative path i mean it does seem as though the warranty that she made is not inconsistent with what she's doing now and i would think that that's the critical question for for any astop of doctrine th i mean to the point of my hypothetical was just to say that that something meaningful has happened between time one and time two with respect to the claim if i understand your hypothetical in your question correctly your honor i would say that the and again putting the p tab issue aside westinghouse and diamond scientific does it one hundred and eighty eight made clear that as the inventor you're allowed to say  that if you read the patent the way the plaintiff wants to it's invalid and so you should read it in a narrower way and that's exactly what happened westinghouse and any number of the aston were stopped cases so that fairness correction said that scott it undermined the basis for patton the stoppel even more than westinghouse had read westinghouse as undermining the basis for past stoppel the world has changed greatly since that justice prior pointed out terms of employee employer relations and how these contracts that he shows are often used against employees and now we have the patent office itself refusing to apply the stoppel in its own proceedings for us in i p r proceedings so the only place left that this doctrine seems to apply is in court isn't that a strange state of affairs to to arrest on star decisis your honor i respectfully i general says we should analogize the patent spied the sorry of stuff all by d which has to do with real estate and senate only did that because that's kind of what westinghouse talked about why wouldn't a more natural place to look at it is just plain old stoppel with respect to personal property rather than real estate transactions given that if you look at stoffel by deed there's no need permit or material misrepresentation there's no need for seen this seemingly would be an area in which those would be very critical considerations when a large purchaser is taking a property off of a smaller inventor or someone who's well land it also applies to personal property when there are the formalities of transfer so a patent is as heightened a formal transfer as one can imagine in the property context so i just want to put a pin in that on the reliance point when mr chicana i do use our specific example applies for a claim when the patent office originally says no and when mr to cry then successfully fight for allowance of that claim sure i understand your concerns about yes she's position what what how would you describe your differences with a solicitor general position as articulate in the brief and to yes your honor and putting aside the reliance issues and the start of the site's issues if we were talking about i have an issue what would we think about it and i think there are if i could answer that st at the at the theoretical level and then give a very specific example at the theoretical level as worded the s t s proposal is more stringent than the invalidity test itself the question the law asked when to determine the validity of claims sought after an original application the test was filed is whether they are government is astounding and it's a perfectly reasonable policy and if if congress wanted to go there it just doesn't match up with the test and let me give the specific example it is common for a path examiner to tell an applicant that claims as written will not see this case as one about the reenactment canon where we would say there is a subtle interpretation of an act and then congress react to the statute without touching it and therefore you know we assume that congress and tended to ratify it or congress acquiesced in it or do you see this as a case in which there was a settled common law background assumption this a sign or a stop will and congress took the soil of the common law with it into the act  does it matter which way you see it the answer is both and no well i guess i think it might matter because the reenactment canon requires a pretty well established line  i mean when you have the language in scott paper and then in lear saying that scott paper undermined any basis for a sign or a stop well i mean you can't say that it was completely embraced well obviously your honor later was many years seventeen years after the undercut it we've been very clear and telling lower courts that even if i precedents have made made it a virtual certainty that we would we would overrule it that's our product so the fact that lower courts continue to apply it wouldn't necessarily mean that your honor the facts of this case comfortably satisfy the pod policies underlying any of the modifications of that sonora stoppel proposed by monroe or the amaechi but for many of the same reasons the doctrine should not be abrogated it also should not be modified by th the doctrine creates and they've also been free to reject the doctrine or hold in whole or in part when negotiating the terms of the assignment a retrospective change would mean a windfall for rats in the worst and radically undercutting the return on the deal for a quarter centuries worth of ads in the any modification to ask more stoppel should be made only after careful consideration of the advantages not just the disadvantage of the doctrine it should be made after input from all of the stakeholders in the marketplace all i'm sorry i missed or when you have a model we thank you thank you mr chief justice excuse me i will be i will be as quick as i can here i'm going to start from the narrow and move to the broad i just want to correct a couple of i think misstatements that  mr wolf made he said repeatedly that plane thirty one was obtained that's not true claim thirty one was canceled and it was canceled two years two full years before site take bought the pass so it was not yet and  that's just the way the patent prosecution process goes sometimes you learn things after a claim has been given a tentative allowance by the court and you have to make changes he pointed to the testimony in in in in the in the record about to cry at one time believing that his claim was more than just moisture transport but that's not the same thing as covering an applicator head with an oyster impermeable device those are two different points and i think and i think that that  this is exactly the kind of backward looking overreach that the rules should prohibit i think a logical position makes claims thirty one a red herring if you know if they were very clear today whatever they can squeeze out of the assigned or is stuck with and that just doesn't make any sense you know scott allowed scott paper allowed a part of an asinine or to say that the patent that what he was doing was outside of the scope of patent protection because of of the time limited nature of patents there is no principled reason why on acid or shouldn't be able to say that what he's doing is outside the scope of the patent protection because it's beyond the brits it's beyond the breath of the application that he sold and that's our argument and it's also by the way the argument that westinghouse accepted and this is toward the end of the westinghouse opinion it's page three hundred and fifty four dollars toward the toward the bottom there when it's talking about claims six claim six in that case was pending at the time of the insight it takes of the assignment was overbroad and the assign was nonetheless allowed to dispute the breath even now reclaims than the overbroad claim that had been pending at the time and this is consistent of by the way with kimball kimball says in case after case the court is construed these laws to press club measures that restrict free access to formally patent patented as well as  review that's just another reason to abandon a sign or a stop well that's another one of the significant changes that has taken place the doctrine doesn't have any legs to stand on and you know the government pushes towards the real property analogy in a st but it's really important to remember that a sign or a stop along like a stop of aidid is committing property to the public and so the analogy doesn't hold when in a scuffle by deed somebody is trying to take back what they have sold but that's not true here what we're trying to do is to ensure that they get to keep the substantial value of what we sold them but no more and to the extent that there's any concern about real of mischievous behavior by a sign or us equitable  state law remedies remain available to address them for all those reasons we respectfully request that you vacate the judgment and remain and with instructions to consider our section one hundred and twelve invalid the arguments on the merits thank you counsel now the case