a district court judge here who seriously wanted to apply our precedent and did that by saying get way out applies here and there's a lot of discussion in the br that light is not absolute there can still be restrictions on the publics used to practice an invention in an expired patent and those include instances where congress has specifically modified patent terms and one  and that gives rise to an exception and on the facts of this case we should similarly find no double patenting based on congress is an act meant of the you are a way the only reason the ninety p earlier than its parent is because congress in act is the u r a and that did two things first did effectively shorten the term of the later divisional but it also included section one fifty four c one a seven thirty two up against the time line post your nine ninety and i think i understand your point and to the extent that you're saying this pretty you are  patent all pretty you are a patents got seventeen years and so this one should also get at seventeen years unless the patent had issued before and then then  latter issued patent would have its term tied off to the first issue patent that's how classic odp law work so getting to this timeline on page thirty two what if the issue date of the seven seven two patent was moved further down the line so that if you shoot second not first with respect to nine nine zero patent if if that had been the case then would you believe that ok because the nine nine zero patent issued first the seven seven two patent term should be tied to the expiration date of the nine nine zero patent so we're not arguing for any  general rule that it should be right but i i i don't understand how all this is going to work when we're dealing with the one pre you are a patent and one post you are a patent and i'm trying to understand fully the rationale of suggest a significantly delayed issuance i know that i'm not asking for i'm not considering a significant delay i'm just trying to figure out of the issuance date had come after the nine nine zero like i said under law one could say well you've the second issue patents term is tied to the first issue in star fleet and we wouldn't disagree with the finding of double patenting under that hypothetical that you've proposed but that's not the situation that we had here no guards did not file the application that led to the ninety patent until it already knew that the first patent had been allowed so they received notice in the patent office that merely in gauged in patent expires the public should be entitled to rely on the expiration of that patent to not only at least be released from that patent owner from being able to practice the subject matter in that expired pattern but also obvious variations of that at least with respect to that patent are being released from ever having to worry about that patent owner chasing after that member of the public so what did we mean when we said all that why wouldn't and the athletes have not disputed those there can be other patents claiming overlapping subject matter there can be patent term extension so we had the safe harbor there can be f d a bars to prevent people from practicing the invention in an odp law works and that's arguably what it did with the patent term extension amendment with section one fifty six and envy your view that that's what they likewise did when  that's exactly right i think you stated numerous times in goliad that the holding there was limited to the circumstances of the case and that holding only addressed post you are patents and not the type of pad that we have here and you're also correct included section one fifty four c one that says that three gag patents shall be entitled to the longer of the three or post get turned and there's no evidence whatsoever that congress intended for double patenting to apply the unique facts that we had here nobody should not be penalized and the rights that it bargained for should not be taken away from it because congress enacted the u r a there's no evidence of that whatsoever and in addition double pending should not apply here because neither of the two rationales for double patenting is triggered on the specific facts of these cases accept this case and we know that the first and primary justification is to prevent patenting from unjustly extending their patent rights beyond the trend mandated by congress and there was no such unjust extension here the seven seven two patent was filed before and issued before the nine ninety patent and the only reason it expires later is because congress enacted the u r a up holding the validity of that patent here does not and justifiably extend that patent and the reason for the extension is not attributable to no bardas is attributable to congress's actions so there is no unjustified extension and the second rationale for double patenting also does not apply couple here it hasn't been argued that's preventing multiple suits by different back to your timeline on page thirty two what if the seven seven two patents expire first what would happen to the nine i know would we say oh you benefits it got from waiting and until ninety ninety seven to begin prosecuting it with a different prosecution history and differently worded claims so upon the expiration of the ninety's that the public should no longer be blocked from accessing that invention but for an obvious variant of it by those patents i certainly take the points that my friend has made that there could be other badness that are patently distinct but what we take this court to have helped gilliatt is that with respect to what we care about is that all the related patents expire on the seventeenth anniversary of the first patent issuance date so you know we have to you know very different measuring sticks that we're using in those two different universes now we have worlds colliding here where we have a half dog have cat situation so if we were to use traditional principles in the facts of your case this particular seven certainty would be able to maintain and preserve its entire seventeen year patent term because it's not anything that could be regarded as an unjustified extension of the creagh at seventeen your patent term in this instance it would be getting no more than what is expected in terms of what congress expected patent term ought to be for a given patent and the supreme court all obviously pretty gatt decisions and what this court said in gilliatt is that in those cases the day that really mattered was patent expiration now that lined up in most cases with patent issuance of course because of the and the post scout law and from this court as we take it that what matters is patent expiration and so for there to be something different you know for for this really to be a half dog and a half cat because it bridges the you're going to get the larger of either seventeen years from issuance or twenty years from the earliest filing date subject to a terminal disclaimer and then now it's on us to try to understand what does that mean subject to a terminal disclaimer where we're looking to make sure that no patent goes beyond seventeen years or are we going to use the gilliatt principles where we're making sure that no patent goes beyond the twentieth anniversary of the earliest filing what right the public has at the time of the expiration of the first patent whether that no matter how long a term that first patent has enjoyed mean it might well be because of a terminal disclaimer or something else that that patent actually had a shorter term than the statutory maximum term he could have had a longer term because of patents are extensions or something like that but with the gilliatt principle i interpret ing a long line of cases is that upon the expert the first exploration that's when obvious is type double patterning prevents getting a second patent and you know the cut the consequence that of that for these patterns is that when they got their first patent they could have kept it for the full term but they chose to  packet with what is undisputedly and indistinct variation obvious variation of that patent and they chose to seek it to get whatever benefits they saw from the different claim language of these of course and residency that didn't extend the term of the first issue though right that's true and of course that was the point the dissent made in gilliatt and the court had said that that's not the point in that case and we don't think it should be the point in this case either because although it did not extend the first issue protected their pharmaceutical from generic competition for its full term but as part of that bargain they have to dedicate that invention to the public as far as as far as that invention and any obvious variations thereof on the date of circumstances here i had another good example which my friend alluded to is the safe harbor in one twenty one if the patent office is responsible for the different expiration dates because of issuing as a restriction it's finding to select one of your two patents that would over otherwise expired together and do enjoy up to five years patent term extension under section one fifty six  suggesting that congress has already contemplated at least one instance where patent terms don't have to expire together i think that's a fair reading of verses farm heart attack from god i don't think it has any impact here because the consequence of the issuance of the two patents on the same subject matter was that the second to expire is invalid unless terminally disclaime within the lifetime of the first and that's the holding and barrier in the line that you have until the expiration date of the first to expire patton to enter that terminal disclaimer and you know that the artist could have done that here my friend terminal disclaimer be effective is it can it be entered rest are actively after the expiration of the first to expire and the answer was no but in this case the you know my friend suggested that there were just a court decisions that you know gave them to understand that if they did they didn't have to be worried about obvious this type double patenting in this post at situation by what i think that mrs i's a couple things number one the board  less than seventeen years from the date of the first issue and he predicts that patent that's getting even less than seventeen years from the dude of the first issue that it would get less than seventeen years from the date of the first issue patent office get in this case only if they had terminally disclaimed it to match it up with the nine ninety and of course that patent term statutes on fifty four c one says seventeen years for twenty years subject to any terminal disclaimers and so i'm i'm just saying to you right now i'm i'm not aware of any other case this would be the first case where a patent would where we would be saying a preacher and would not be entitled to a term that's or with that we'd be cutting it off it when it would be getting less than seventeen years from the date of the  shall have if it is not held invalid you know or terminally disclaimed or extended or anything else you know that that's the date that it is in the patent on the date when it issues from the patent office how long will it last if nothing else happens and in this case if nothing else  a question of the term of the patent at all we think it's a question about whether this is whether this patent that the ninety patent is a proper reference and it stipulated that if it is a proper reference then the this court should affirm that there is no other issue  the absence of anything in the you are a displacing that understanding about the data that really mattered is controlling and indeed you know judge approach you just post you mentioned in a question to my friend about terminal disclaimer that is made necessary by the pattern claiming subject matter that is not patently distinct from another pattern or that is that it only be a reference to the d p just as the terminal disclaimer itself said to himself two fifty three b was put in the statute said rigaud says a number of this court cases said as a way of rescuing patterns from odp you know all of those statutory elements reflect congress's recognition that an important limitation on the ability to claim an invention you may get one pattern are the invention but not multiple patents on that invention or its obvious variance if you do your remedy is to secure terminal disclaimer no one has had the option to do that if you put points around or first my friend emphasized the subject to turn all disclaimer language and want to be poor so you whine it's our position that does not address the specific circumstances here there's no evidence that it does that's merely maintaining the maintaining the status quo and doesn't address the situation here and my friend also mentions section one fifty four belief in the one thousand nine hundred four version and that saturday actually supports no hardasses position because it showed that if congress wanted to limit the availability of a patent term right it could have done so expressively but it did not hear in addition we're not aware of any case in response to your question judge trend we're not aware of any federal circuit or supreme court case where the there been numerous implications that no bardas should have filed the terminal disclaimer here however at the time when we could have filed that term of disclaimer we had three district court decisions that all came out our way and found no double patenting on the specific facts here there was one earlier patent office decision that went the other way but the district courts discounted the reasoning in that decision and this is a judicially created doctrine we think it was reasonable for no partisan the public to rely on the district court decisions and finally one last point this court recognized with the c c p a recognized in the in re shallow decision that it maybe there may be situations where it's both reasonable an equitable to find the double patenting does