written decision in the airlie case crime or continues to pursue ongoing world he's on a rd to claims that have been found and valid that leaves a controversy between the parties as to the equity of that award the district  be in the alternative ways everybody everybody seems to agree it was presented but that was in a footnote in that opening filing which was mostly about suspending the ongoing ro the power to do it and what he should have done is to recognize the power and exercise the usual consideration of relevant equitable factors yes your honor with respect to the issue the ongoing around these and the requests for the day rt was right on the only two issue they just reported needed to analyze the final written decisions those final round decisions came in after the let me be clear the last final written decision which was the final right decision on the s know this is not something that both parties have fully briefed but the relationship between this case and the one that we just heard taking as a premise just for before the district court did not extend the alias distributors and customers and that left open an open question and it left open an open question because we knew from the record that was presented to the district court that certain distributors and customers to whom aili enterprise enterprise infringed what does the possible infringement of customers and distributors have to do with that and then have a nd question in a minute so yeah so the fact that the counterclaim at issue is so if you focus on that is for a little bit focused on the nd half of that camera play in the beginning it is talking about what aliens rights and obligations are an alien had an obligation to identify some distributors and customers that would have been impacted if enterprise and been give has been given a covenant not to be sued why doesn't the exhaustion doctrine fully protect its customers and distributors so the product is still moving toward them right and because because of the system claims and combining these things into systems there was an argument in the district court that exhaustion would not apply to other members of the supply chain and so that's that left a substantial issue in alias mind about whether or not exhaustion would apply to its customers and distributors can you start i realize this is getting ahead of where we are with the question i asked it's a question of what happens to this case if the one that we just heard argument in is from yes your honor we believe under this court's precedent the judgment that this court has already affirmed with respect to damage as an infringement for three patents that have already expire was final and remains final so that a later determination by the p t o that is subsequently affirmed by this war w that's the judgment this is it we've had other cases where the judgment was executed the twelve up and down and somebody paid some and we wouldn't let him but nothing's been paid over here well that's correct your honor but finality doesn't determine isn't determined by whether or not the infringer has paid this court's precedent says is there a just a justifiable controversy between the parties is there anything left for the district or to resolve in terms of a dispute and once crime are here provided asked for a suspension of the payment of the ongoing royalties the state the whole case and the alternative it asked for a stay of the whole case or to sever all ongoing royalties meaning post verdict ongoing royalties it's asked for retrospective proceedings for two reasons st and for seniors the infringement action was live the case remained for determination of damages below in the meantime and this court affirmed the p t o s judgment of invalidity meaning there was a final decision from this court well that's a good question meaning who that elite has a right to appeal and there would be seemingly nothing stopping ailie from appealing indefinitely and repeatedly local public eye there probably ought to be some kind of fresh hold precondition of non frivolousness i got hard time putting aside the question whether the district court was wrong and if there were no i p r is what we would do in ruling on the merits of their counter claim considered argument or maybe even and their argument about whether a final written decision though it certainly doesn't require it's not given immediate effect reclusive effect but as a matter of equitable discretion to either suspend the ongoing royalties or to stay the case certainly the contention that is non frivolous that the district court should have considered that on its merits rather than saying i have no power to do that district court in the record below considered exactly what i only requested which is to stay the case or sever the ongoing royalties depending on the determination later for the a one to patent issue the district court found that once crime are moved to dismiss which is whether the mandate actually which which did not address the i p r and speech did not have effect yet and and yet there were ongoing royalties  certainly a non frivolous contention that the mandate that the just what was wrong about the mandate to i don't believe the aliens ever made an argument that this report aired and reviewing its mandate but the key issue is that the district court has equitable powers and discretion and in every case that this court has reviewed in every case they only have cited there has never been an abuse of discretion in reviewing a rule sixty five motion can i get back of our subsequent cases but in simmons the supreme court said that even when the only issues left in the case that kept it alive were not patent issues at all unfair competition question the case was still live enough that when the supreme court later reviewed the fide the patent at issue the previous otherwise final invalidation of that that very patent in that case had to be reconsidered why is this not the mirror image of that so that as long as there are ways something still non frivolously live in the dispute between the parties so the daily wasn't just cheeping the case alive on frivolous grounds but was keeping the case alive  non trivial is grounds why doesn't simmons require that again all still by the assumption we're talking about validation of the claims at issue here in the us being affirmed why doesn't that mean that has to be given effect because that wouldn't be a final judgment under rule sixty because for rule sixty five dollars relief there must be a final judgment ellie has argued that the judgment was non final and therefore could be stayed subsequently after the district court entered the amended final judgment it renewed their motion for procedural reasons but the real reason is that was the final judgment and there's nothing left for the district court to resolve the matter fact sitting here today there is no case or controversy between the parties because with respect to the twelve patent which was the basis for jurisdiction and to establish a case or controversy ailie has received the exact covenant not to sue that it wanted it included its distributors and customers therefore the you telling us something that we haven't been told until just this moment no that was in crime or nd motion to dismiss that what had changed in the covenant not to sue was expanded correct your honor in addition the asserted claims of the twelve were dedicated to the public and disclaimed so there is no jurisdictional basis on the twelve patent anymore even if there was an argument at the outset regarding the distributors and suppliers issue which we disagreed and said that that leaves the question whether there was a non frivolously life dispute no you know yes forms of state whether it's the ongoing royalty or the entire case and the district court rightly found there was nothing left of the case there was nothing left for the district court to do other than to enter the final judgment which it did which is why there was no basis for a sta your honor that's appendix thirty  cents the district court analyzed the exact relief that haley requested to stay the case to stay the ongoing royalties this report found number one there's no basis for a stay and number two it be beyond the ma there is one parent here right thirty five to thirty six seeing an exercise of discretion as opposed to i am a disempowered to even consider the question well i believe an appendix thirty five the st sentence i believe that's correct your honor to our final judgment to essentially modify or relieve a party from liability under the final judgment ailie would have had to move under rule sixty five properly filed that motion or may ask wh it was in the air this court and crime are one affirmed the totality of the damages while noting in footnote two of the crime are one decision that these patents have been held invalid by final decision from the p and retractable technologies trons of this court has said that the district court is unable to go back and look at retrospective relief the amount of the microsoft is probably most on point where this court made a precedent t the problem is that if there had been had never been a symonds case it's conceivable that there could be a doctrine that says those aspects of a case  is just slightly to the contrary but they were unfair competition claim kept the pennsylvania case alive to undo the previously final patent validity re there was a case for controversy between the parties that remain live and that's not true here that i want to patent is no longer the english ongoing royalties there are no longer ongoing royalties because these patents have expired as of april so whatever damages this court has affirmed from the jury's verdict and post trial post verdict royalties are set they are fixed and a final judgment this court has already affirmed that should not be disturbed by a later decision of the p t o even if this court does  it we have a problem with balancing article three jurisdiction and finality versus later decisions by the p t o which is court has looked at as recently as in ver medics and found that this court's rulings should stand let me address that last point past the supreme court in oil states clarify what happens in i p r proceeding that is a constitutional exercise and the congressionally delegated authority of the patent office to reconsider its grant of patents when it did so in this case it determined that primary has no legitimate scope to the starting claims that it has used against elite that demanded reconsideration arguments that mr cohen made with respect to the finality and the mandate will work correctly responded to by this court summons demand this is still a lie case and controversy on whether it is court applied collateral stoppel to render that to render the friendliest it is only by its equitable discretion that the just report can award ongoing life on it and so they just report revisited the ongoing royalties to remove the term attributable to the i want to patent but declined to even consider that there had been a change in equities between the parties as a result of the final written part of the case crime are opposed to that severance they waive the argument to separate the judgment from the award of ongoing royalties and the application of collateral stoppel to the judgment and the ongoing world i