its shift from a first to invent to a first to file system congress revised the definition of prior art and clarified the proper understanding of the phrase on sale the on sale bar like the other bars in the definition which is only a disclosure that makes the claimed invention available to the public that interpretation is consistent with the plain text of the definition and its legislative history it's consistent with the predominant objective of the on sale bar as repeatedly articulated by this court namely to preserve the public's access to infections that have entered the public domain where it might not be consistent with the actual meaning of the word sale right the critical point if you're something on sale it doesn't have to be on sale to everybody could be just i'm going to sell something to you well the critical phrase mr chief justice is not sale it is on sale and i do think that the more natural understanding of on sale is that something has been made available for purchase by the public and so for instance if after this argument in the lawyers lounge i turn to my friend mr j and i say i see that you didn't bring a coat today i'll sell you my coat for five dollars i'm not sure that that would be putting my coat on sale and the same way that it would be if i turned around to the audience and said i'll sell this coat to the highest bidder why not your own and if it's sold it's pretty hard to say something that it's been sold was not on sale i think that the concept of on sale just kavanagh convey some sense of broader availability or at a minimum that there's some ambiguity about that that is to say i think i'm willing to recognize that perhaps you could make the argument that even offering something privately to one person could be said to be putting something on sale our view is a textual matter is that to the extent that there's any senate always the case that if you offer to even one person or to a small group of people it's on sale i think i'm not understanding that i think i would say justice kavanagh that something can be on sale regardless of how widely it is in fact sold so for instance if you put something in the shop window and no one in fact wants to buy it and no one in fact bison it can still be on sale but again to the extent that there's any doubt about the phrase on sale in fact i think that that doubt probably was eliminated before the a i a by the surrounding phrases all of which by respondents recognition convey some notion of public availability and then any lingering doubt was completely removed by the inclusion of the catch all phrase in the ai and you said that the opinions of this chord were through but of course you know perfectly sale ruling clued in private sales is to prevent people from benefiting from their invention prior to and beyond the twenty years that they're allowed just and i read that on had my clerk look it up seems right justice prior respondents whole argument before this court i would respectfully submit is really junior varsity version of congressional ratification no fewer than six times in their brief they refer to the two centuries of precedent i would respectfully vigorously disagree with that particular with regard to this court's decisions and let me get to judge hand but let me start with this court's decisions starting with just the stories opinion in panic this court has consistently articulated the predominant purpose of the on sale bar as preserving the public's access to inventions that have entered the public domain indeed if you go back to panic just a story at a time when the was not yet codified in the statute articulated the purpose in precisely that term both with regard to the public use bar and with regard to the on sale bar he said if the inventor shall put the invention in the public use or sell it for public use before he applies a patent there shall furnish another bar to his claim and all the way through to this court's decision in pfaff this court has referred to quote the reluctance to allow an offender to remove existing knowledge from public use and has said that that purpose undergirds the on sale or exploitation also undergird the war i don't think we would dispute that that is one way of characterizing the underlying purpose and that is what judge hands said in the metal izing of course can all be secret it's not very hard but that's not uncommon let me to that do not involve the public awareness of the invention itself or how it is produced so let me say just one last thing about this court's decisions and then address that concern directly i think that if you were to adopt our interpretation under which book availability is required to trigger the on sale bar just like all the other bars you would not have to discard any of the reasoning of this court's cases and you wouldn't have to change any of the outcomes of this court's cases we believe that all of this court's cases on their facts would come out the same way now with regard to this alternative formulation of the purpose which i think really first appeared prominently in judge hans opinion in metal izing and then did did get picked up in a couple of this court's decisions i'm willing to accept that when you have a sale there is obviously a commercial aspect to that the person who sells the item receive some consideration in response to that but i don't think it's fair to say the word judge han was doing was saying that sale bar reaches all forms of prepacked and commercialization i think that that is an over reading of the on sale bar and i think that critically even our interpretation of the on sale part obviously substantially limit ginsburg as i said at the outset i think that what congress did in the a i a was to clarify the proper understanding of the phrase and i do think that at least our argument concerning the canon would still have applied even before the a i a obviously we have the addition of the catch all phrase and i think under this court's decisions construing materially identical language catchall provisions to shed the white on the meaning of the categories that precede them but in  player if that was a clarification it was a terrible clarification because there were a lot of efforts as you well know to actually changed the on sale language and those all failed i think in fairness justice cavanagh i would say that this was exactly the way to achieve congress's dual objective you don't think there is an easier to just change it directly as many members of congress tried to do repeatedly and failed i think that that is with respect an overstatement of what members of congress tried to do i think that at most is respondents point out there were bills that would have deleted public use and on sale from the definition but i think that there was good reason actually to retain those phrases as the legislative history to wit to which respondents point suggests there was a surrounding jurisprudence concerning these terms which congress may have wanted to retain things like the ready for patenting requirement retaining those phrases also made clear that where the inventive embodiment is in the public domain the statute reaches those cases no differently from when the inventive idea is in the public domain what congress was trying to do in the cattle provision and the house and senate reports the most definitive form of legislative history bear this out was  two objectives to make sure that they reached all forms of prior art such as oral presentations powerpoint presentations and the like and also phone to clarify that any form of prior art must be publicly available and notably and this gets to just askin question about whether there was a change in the law i do think that what congress was doing was abrogating some of the outlying lower court decisions that had extended both the on sale bar and the public use bar to cases where there was not public availability and indeed the legislative history identifies by name some of the public use cases that had so held cases like the beachcombers decision from the federal circuit and the jumps court decision we also point to some of the on sale cases that had extended to sales that did not involve public availability cases like special devices and cavaney and i think justice kavanagh that that's precisely why you should think that what congress did here was fit for purpose i think we would certainly acknowledge that congress could have modified the language of on sale but what congress wanted to do we would respectfully submit was also to fix some of this federal circuit case law on public use now of course that phrase public use one might think would have inherently conveyed some notion of public availability as respondents themselves suggest in their brief but at the same time you had the federal circuit extending the public use bar to circumstances in which inventions were displayed in private parties the jump sport case involved a trampoline in the inventor's backyard these were cases where in our view there would not have been public availability and so congress including the catch all provision did what congress did in cases like sea train lines and caroline it shed light on the meaning of the preexisting specified provisions and to be sure in those cases everything was inactive at the same time but as a textual matter you have to read the statute as a whole and again respondants argument here really rests on this notion of congressional ratification the first part of that is the part that i've already addressed this notion that there was some settled body of law saying that you don't have to have public availability and not only did this court never say that this court never did that but of course the second component of any congressional ratify cation argument is that you have to have statutory language that was not changed and this provision was dramatically revised and to be sure some elements of the definition including the phrase on sale were retained but at the same time congress added the catch all phrase it defined the claimed invention and of course it shifted to a first to file system which largely addresses this concern about improper commercialization because of course any inventor who engages in commercial activity without applying any first to file system runs the risk that another inventor will beat them to the patent office and that is a concern am disagreeing with that and again in our view and the government can offer its view with the institutional heft of the patent office there is no decision of this court that would have to be disturbed in our view there are a handful of federal circuit cases that would come out differently if a public availability requirement is applied and i don't think the need to boat i mean in the need to boats this court well it isn't necessary for the holding does quote learned and it does a condition upon the inventors right to a patent that he shall not exploit his discovery competitively after it is ready for patent yes to go ahead and patent it or keep it a secret forever so an inventor who in fact in year one has his invention ready for patent the and goes around from one person to another secretly selling it to each with a confidentiality agreement a person who is exploiting his agreement his is invention and therefore since he didn't do it through a patent he loses the right for a patent that seemed to meet the clear pretty clear rationale not disagreeing with a fact and be fairly read to be a purpose of the onset of our my submission is a much more modest one it is that in order to accept respondent submission you have to think that the on sale bar really pursues that purpose at all costs and part of the reason why we know that that is not true is because respondents themselves can see that if this arrangement had been structured slightly differently if this had been structured as a right to profit sharing rather  a structure where you have upfront payments followed by payments per unit for any eventual product if there even is one and we do can we accept that point write something in your favor on that that is that there is a question of what is on sale it's not the public private question there experimentally exceptions for example and perhaps there should be other if not exceptions at least cared taken to be certain that it is an exploitation of the invention when it is a private sale i mean to go that for seems consistent with what we have previously said and what they say with the exceptions in the statute it's where you want circuit's air which is to say that public availability is not required now respondents we believe have forfeited any argument that there is public availability here but we also think that this would be an easy case under a public availability requirement both because this involved a sale to a single distributor m g i that was under an obligation of confidentiality and also because this was a development arrangement of which distribution wasn't eventual possible part there was not even a product at the time of this arrangement and so we certainly think that this would be an easy case under a public availability requirement like to reserve the balance my time for of all thank you thank you counsel stewart mr chief justice in the it please the court in the government's view there are two basic reasons that the transaction a dish you here shouldn't be held to trigger the on sale bar first in g i was not a company that intended to use the drug for its plan to use the drug for its intended purpose by administering it to patients in g i propose to function as a financial intermediary that would take title to the palin also turn but ultimately would resell it and second even as to in g i itself the transaction did not provide any assurance that title would ultimately pass because the terms of the deal were subject to various contingencies and i'd like to focus on the first point first none of this none of the court's decisions in either the public use or the i'm on sale bar a plot holding those bars to apply have dealt with situations involving distribution intermediaries all but one of those cases of involved fact patterns in which the invention was actually out there in the world being used for its intended purposes and that was what was held to trigger the on sale or the public use bar the only exception to that is five because fatih involved an offer for sale that had not yet been consummated and the court held that the bar was triggered even though the invention had not yet been supplied but even in fact you had a firm offer to texas instruments that proposed that intended to use the component for its ultimate purposes to be incorporated into larger machines you didn't have an entity that intended to buy the product solely for resale and i think in terms of how do we usually understand phrases like on sale or available to the public are reading really conforms much more closely to usual public practices that is if you imagine a situation with a new product like an i phone it's manufactured it sold to a wholesaler the wholesaler sells it to a retailer and then the retailer sells it to can sue murders there's a train of transactions that constitute you see so you sales but if you ask an ordinary speaker of the language at what point did the i phone go on sale or become available to the public you would say that it's when consumers could buy when the people who planned to use the phone for its intended if us a consumer but if us in the industry to distributors they'll say the moment that apple was going to start shipping it to distributors i think you and i didn't win the is irrelevant to me it was on sale the moment distributors were going to pick it up and ship it out you might use a phrase like on sale to distributors or on sale to resale or resellers but i don't think you would use the phrase on sale standing alone and it would certainly be odd to describe the phone as being made available to the public at the time that was accepting bids as to who this is finish an offensive to be frank with you i've looked at the history cited in the briefs a looked at the cases i don't find it anywhere here sort of giving on sale to the public it's meaning but those are not the words used by congress congress could have said on sale to the public and then we might have to grapple with this congress just s on sale it said it retained the phrase on sale but it added the phrase or otherwise available to the public and that serve two purposes it functioned as a catchall so that things that were not enumerated might still constitute prior sorry if that freeze has an independent meaning you just given it to then why don't we take the words congress use with their history because they didn't say on sale to the public they just sit on sale and when you have a historical term that has a history as a matter of course we look at that history i think it's certainly appropriate to look to the courts to get to the history in particular to this particularly to this court's prior decisions and if this court had previously held the on sale bar to be applicable to sales to distribution intermediaries then we might say this is a fairly old leak where you have overturning those decisions are key point is this is always that right treat the law as settled especially because there is evidence both from the face of the statute the fact that otherwise available to the public was added also from the legislative history that congress was attempting to clarify that the numerated terms were ways of making the invention of a lable to the public i mean the other thing i would say to follow up on something that might my colleague mentioned is that one of the justifications for the on sale bar traditionally has been prevent the inventor from respondents themselves agree that there are other transactions by which helston could have gotten money upfront that could have gotten seed money in return for instance for promising a share of the profits those would not have triggered the on sale bar the other thing is that in the federal circuit's decisions it's not even necessary that the inventor profit from the sale in order for the on sale bar to apply the federal circuit has confronted fact patterns in which the inventor will ask an outside supplier to produce is the new language that the a i a put in the statute would that be enough to unsettle it no i think that would be a fairly old bleak way of attempting to overturn kind of a subtle body of law and but as i the that the body of law that the federal circuit has developed doesn't map on to any policy justification the other thing i would say about flav is that in fact the court emphasized that the sale was what it referred to as a commercial sale rather than an experimental sale and the court at some length discussed the exposure of cases involving the experimental use doctrine and the i'm sorry just a couple and the court has recognized that even when an invention is being used out in the public square in a manner that is visible to the public it's not the sort of public use that triggers the public use bar if it is being done for experimental purposes to verify that the invention will work as a stage precedent to patent to going to court in pfaff's strongly indicated if a sale is made so that the buyer can engage in experimentation rather than to use the product to achieve its intended benefits that will trigger the on sale bar  you mention the legislative history but here isn't this a classic example of trying to snatch victory from defeat in some of the legislative statements in other words and was this long before his justice kagan mentions a huge effort to change it lots of proposals to change it they all fail and then a couple statements said on the floor on which you're relying on i think the legislative history read as a whole because exactly contrary well to answer that let me  point total one of the things wrong with thinking that when i think what's wrong with thinking that way is that as we've pointed out in our brief the prior art provision encompasses two conceptually distinct ways of placing an invention in the public domain if the invention is patented or described in a printed publication that means that the inventive idea has been made available to person skilled in the art such that they would be able to make it and the on sale bar in public use bars deal with situations in which physical embodiment of the invention had been placed in the public domain now some of the proposals that you referred to justice kavanagh would have said things to the effect of  has been patent patented described in a printed publication or otherwise available to the public i think if that language had been used and there had been no reference to on sale or public use it would have been at least a permissible inference that the otherwise available to the public referred solely to circumstances in which the inventive idea had been disclosed and that would have that really would have overturned a great deal of this court's law concerning the on sale and public use bars because those can be triggered even if the public is not aware of how the invention works so long as physical body embodiments have been made available so i think congress got the best of both worlds like limited by clarifying that all these things have to be public in some manner for commercial sale is on sale as this court has consistently read that term that established meaning didn't change when congress added a new category of invalidating prior art to the statute that's events that make the invention in vailable to the public in other ways not already covered by the statute so healthy as argument as you've heard this morning is that although it sold its invention that sale did not place the invention on sale we submit that not only to health and place the invention on sale it also made the invention available to the public  i'd like to begin with first the plain meaning of on sale we think that the reason of this dash it uses on sale and that this court has always read it this way including in fath is to cover offers for sale if it's just if the statute simply said sales then it wouldn't cover offers and offers are important for two important reflect uki reasons one and offer shows that the willingness to place the invention on sale to make an offer to sell the product shows that the inventor is ready to commercialize the invention and if they're ready to commercialize the invention and then the second half of the fast test is met the invention itself is ready for patenting then the inventor ought to be going to the patent office and applying for a patent if instead the inventor wants to commercialize the invention deriving profit from it then the inventor can do that but should not expect a legal monopoly that could extend past the statutory term but i think the most serious argument you have to deal with is the meaning of the plain meaning the fairly plain meaning of the new statutory language so you say on seo means on sale publicly or on sale privately right all right on sale period full stop ok so suppose that the statute had been amended to read just the way it does except so it would with one exception so it says the claim that claims invention was patented described in a print printed publication or in public use on sale publicly or on sale privately or otherwise available to the public that would be nonsense when i think it would be confusing that's certainly right but i do think that you would specify that one of the categories prior art would be on sale privately and in your hypothetical i think this court would give effect to the choice that congress made even though one of the lit items in the list might stick out somewhat it would be not it would be nonsense because the meaning of otherwise is in the same in some other manner to do the same thing in some other manner and you have what we have now after this change is in the numerate it is in the numeration of a number of things that are public a printed publication in public use two things that are obviously public and then we have on sale and then it says we're otherwise available to the public and i find it very difficult to get over the idea that this means that all of the things that went before our public so two points that's what otherwise means so of course you know your honor sort of ask me to assume that this is a statute that's being written from scratch and i think that that takes off the table all of the history of the statute as it was before two thousand and eleven but say even taking even taking that off the table and looking at the statute a statute like the one that you proposed the reason that your example is different from this statute is that in your example there's one category on sale privately that doesn't even have any overlap with available to the public and we've never disputed that many sales do in fact make inventions available to the public but we do think that on sale has its own meaning and one important part of that meeting is offers and we think that structurally if on sale is to include offers and we think there is no way to read that definition to exclude offers offers are not generally going to make it out of invention available to the public my friends on the other side in their brief suggest that that might happen in a newspaper advertisement but it's extremely unusual to see in a newspaper advertisement all of the details of a claimed invention disclose so we think that the function of otherwise in the statute as amended again even taking off the table all of the history is to acknowledge that there is overlap between the previous four categories and the new category of invalidating prior art that's being added so as to to make sure that the new category doesn't swallow or change the meaning of a prior one let me illustrate that with and a new category consists of offers new so the new category consists of things that make the that otherwise make the of invention available to the public and what would be within that category an oral presentation at a conference without slides you know of powerpoint slides that get distributed that's one good example another this discussed in the high tech inventors alliance grief is collaboration among many people on an app and app collaboration app which is not on the internet and is not indexed and would not count as a printed publication but ought to be the kind of  disclosure we think the government agrees with us and i think by the end of the really rethink respond petitioners agreed with us that there is this new categories primary function is to create new invalidating prior art disclosures that weren't d validating before the day and we think that it would be strange for congress by creating a new invalidating category in other words narrowing the scope of things that could be patentable to indirectly and by the of the strangest implication narrow a category of prior art and widening the scope of things that could be patented i think it's as a historical matter about this case i think it's important to understand that petitioner had gotten three patents before the a i a at all of which of before you gave with example i didn't wasn't quite moved by your baseball example so do you have something else and something that's based in law where otherwise was used in the way you suggest and the second part of my question is will we be the only country that has a first to file system that includes private sales so let me answer the second part connors and just because i think that i think is i think it's a pretty straightforward answer the on sale bar itself is unique in and then the other other countries don't have an on sale bar that includes public sales they just don't have an on sale bar at all so i'm sorry explain that to me and there is no one write sales are not a category and the other countries patent systems that are just discussed at the briefing the point made is that those countries don't rely on secret prior art but they also don't have an on sale bar at all so in this country we have and have decided and congress has decided to retain a category of invalidating prior art that it has as the purpose of measuring whether the inventor is commercializing the invention is ready to commercialize the invention and invention that under the second half of the test is ready for of otherwise available to the public rather than just of ailill to the public we think the word otherwise serves to acknowledge that there is overlap and to avoid this strange situation so if the statute had said described in a printed publication dot dot dot or available to the public once implication of that might be if there weren't aid clarifying words like otherwise to make clear that that new category was a residual category intended to catch things not already caught the implication might be that while gushing in order to give content to the other items in the list we'd better read them to include things that are not available to the public such as printed publications that are not indexed and are not available to the public there is a lengthy extensive body of law on that so for example up ph d thesis that's on a shelf somewhere but it's not indexed not readily find of all does not count as a part of publication we think that the best reading of this new category is that it creates a new set of and it does not unsettle any of the prior categories whether patented described in a print publication in public use or on sale and it certainly doesn't doesn't disturb the basic policy justification for the on sale  bar which deals not with the stock of public knowledge precisely because as my friend mr sam again and my friend mr stewart have both have both discussed putting an embodiment out in the public or even offering to put an embodiment of the invention out in in the public for money meaning on sale that may not tell the public anything about how the invention works can't continue on through just this lead to the sort of first question that is i can think of examples but  they're a little awkward i mean the meet the sports meet will include football basketball running swimming or otherwise or games that otherwise involve a ball oka or breakfast a healthy breakfast includes fiber baseball swimming example and i think in protect or that if a statute said you know don't engage in football baseball or swimming full stop i think everyone understand what football and baseball and swimming meant and if the statute were then amended to add or any other activity that involves the use of a ball that might be a bit awkward but no one would think that it changed the meaning of swimming that it required the adoption of a textual meaning of swimming that doesn't appear in any dictionary or any dessert that otherwise contains nuts do i do it violate the injunction if i buy not lisp around his so i think that the reason that that hypothetical i think i would say no  think it's a professional reading and in your clothes and mr sham against excellent brief he's so the but he certainly seems to think that ansel means something different from what you thought it meant and i guess what my hypothetical is designed to do is to say look let's take a term that could be read one way or the other and then let's attach that otherwise language to it and it seems pretty clear that the otherwise language would be doing something so of course it is doing just to a cross reference to the government's brief and the government cites a dictionary that says that on sale means available for purchase by customers and the customer is just someone who buys something i certainly doesn't mean available in an open you know non hidden away and it doesn't mean available to the entire world one sale to one willing purchaser has always been a validating sale and i think that the reason for that one reason for that this court brought out in fast is that the it gives the the inventor him or herself a degree of predictability the inventor controls when when she wants to place her invention on sale if instead if it were something more ambiguous that involved when the invention is not just sold by the inventor to a wholesaler or sold by the wholesaler to a retailer but instead when it was placed on sale by the retailer in your position i'm sorry given your position you have the wrong answer to the brownies and pathetically i think so if you my answer to the brownies hypotheticals is based on  that would be a very indirect way as i think your honor brought out in your question in the top half of the argument to accomplish that so whatever the definition dictionary definition of brownie may be and i guess i've confessed i'm not up on that  i think that the meaning of one sale is sufficiently unambiguous and it certainly is it's really is not the case that otherwise is some talismanic word that is used in statutes you know to unsettle the meaning of words that come before and i think the best then was used to influence the interpretation of preceding terms it was that different it was used as the court said it was used it summarized what the you know what the preceeding terms did it certainly wasn't used to change or unsettle a preexisting meaning it's different for a couple of reasons one the court said in peril line number one that it might well have reached the same conclusion even if that language didn't appear in the statute because of the strong presumption that remedial statutes contain a proximate cause element and you know that i is on page four forty six of the opinion and then on the next page you'll see that the court has a paragraph dealing with the with the other language and it does two things one it treats it as a series modifier because it is equally applicable to each of the five categories that's come before that was kind of like the argument that the other side was making in the court of appeals that otherwise available to the public is there is a series modifier that actually modifies as a matter of english grammar the terms that come before it in the list and they've abandoned that argument that's why we're not talking anymore about the rule of the last antecedent and then the third thing was it was the point about summarizing the categories that come before in this case we just don't think that available to the public is a fair summary of on sale either as a matter of ordinary english or is a matter of the specialized meaning that this court has given it and i think that mr sham and i would urge the court to look at a number of the late nineteenth century cases such as consolidated for a char in which the court said that the inventor is not allowed to derive any benefit from the sale or the use of his machine unless he begins alessi applies for patenting within the to say we disagree with you just for the purposes of this hypothetical and think that the introduction of the otherwise clause introduced some ambiguity about what on still means now i understand the patent office has an interpretation of the statute which we do with that if anything or should we ignore it i think that it would only be relevant if it had the power to persuade this court has never given deference to the patent office on quite substantive questions of patentability  on what it takes to overcome the bar is put in the statute by congress where congress has said you may not have a patent if x y or z now there this court has any number of decisions in which it has held that a patent issued by the patent office in conformance with packet with the offices then examination guidelines were invalid so we think it's entitle to respect and consideration just as the government's brief in this case is entitled to respect and consideration but we respectfully disagree with that we don't think that particular because it doesn't deal with the meaning of on sale and in its attempts to reconcile that with the new language it's suggestion of this new test about availability to the public meaning the ultimate consumer that's not based in anything text or definition or history or case law of any kind but it's so we think that a virtue of our position is that you don't need to get into the question of what it means to be available to the public when you're considering a sale you know a sale or an offer for sale is a concept that's been baked into mention that the that this was a development agreement now i would urge the court to look at part of one of the federal circuits opinion which deals with the question whether this was a sale at all that's a pretty specific inquiry into whether the preconditions for the sale prevented from being a sale as that term is used and has been used for many many years the other side of course didn't seek for surety on that question we don't think it's properly before the court what they did six are already on it is  big if you look specifically at the question presented he doesn't use available to public at the first pacifically to secrecy to the existence of a confidentiality agreement you know a third party that is obligated to keep the invention confidential that's the only manifestation of not available to the public that they put in the question presented and i think you've heard that the you know the government is not defending that view and we think that that adopting that view under which a sticker ring a an offer or a product with a confidentiality agreement and thereby taking it off the table for purposes of the on sale bar would be an incredibly problematic for you for a variety of reasons one would be easy to do to it it would seriously undermine the purpose of the onset of war because it would allow not just isolated commercialization but really rampant commercialization and then the third third point about what it means to be available to public about whether this does this distributor should count and this goes back to a question that the justices of my were asked about you know if you asked a consumer you know well what would it mean to be to be on sale i think if you ask a pharmaceutical company what does it mean for your product to be on sale what that form is it will company would say is we're selling it to a distributor he said as we cited it was really explained in our brief ninety percent of the pharmaceuticals in this country are sold not but not directly from the manufacturer to a consumer but to a wholesaler ordered or a distributor that's how they're sold and so the implications of adopting ultimate consumer test would be to give the pharmaceutical industry in particular and any other industry that operates primarily through wholesalers and distributors a real free pass from the on sale bar and that getting back to the basic purpose of the bar that would undermine the statutory term  the duration of the monopoly to the statutory term is one of the to keep principles of the underlying the on sale bar we think that because health and placed it's invention on sale and it was willing and that part three of the federal circuit expand opinion explains why it was ready for patenting you had one year in which to apply for a patent it shows not to do that and then many years later after the a was passed you went back to the patent office and it tried to get and got a patent that would be subject to the  was as the federal circuit explained indistinguishable from for relevant purposes materially indistinguishable from the patents and that it had obtained and it said that the sale that it invalid that there was going to invalidate its prior patterns doesn't invalid post i pad and so i think it's difficult for health and to say that it's not withdrawing anything from the stock of knowledge by getting a patent mr j with the prior secret sale of an invention by somebody other than the patent holder invalidate the i think the answer is yes but i've not seen cases like that because i think it would be exceptionally difficult to discover where is the way that the sale in this case came to light and the way in which sales in patent cases generally come to light is through discovery from the inventor or as the court said in pfaff you want the invent or to have control about the timing and the choice to commercialize the invention and so a rule that gives the invent or control over that necessarily  has to leave out the possibility that someone else might also have the invention and start selling it but that's not been an implementation problem in reality if the court has no further questions i'm prepared to go back to balance my time thank you counsel mr sham have four minutes remaining thank you mr chief justice our fundamental submission today is a simple one it is that the phrase on sale should not be read in a vacuum but rather in the context of the surrounding language and the fundamental problem and the dispositive problem i would respectfully submit with mr j submission is that it really would read the word otherwise out of the statute i think that the hypotheticals that were proffered to mr j make that clear but let me at the risk of introducing another one point to this court's decision in one of my favorite statutory interpretation cases united states versus standard burr that is the case that involved the work time prohibition act which prohibited the use of grains to manufacture in the language of the statute quote beer wine and other intoxicating malta venice liquor for beverage purposes and believe it or not there was actually a case in which a party was making non intoxicating beer and the question was whether the statute applied to that and the court said no applying the very principles that we are articulating here in the court's rationale was that the qualifying words other intoxicating in this act cannot be rejected in the words of justice day if the intention was to include beer or wine whether intoxicating or not the use of this phraseology was quite superfluous and i would respectfully submit that mr j really has no alternative way of reading the very familiar term otherwise mr j today as in his excellent brief suggests that otherwise could be read to cover situations in which there is some overlap we know that the public use bar and the on sale bar have considerable overlap in many cases but it would of course have been nonsensical for congress to have said in public use or otherwise on sale that doesn't make sense as a matter of basic english and respondents can point to none of this court's many cases involving catchall provisions that support that approach to the statute you have only agree if you mean you know you have a  and he kills sixty thousand people about his invention and that they say and similar or other circumstances or what this last phrase is meant to cover just now that's gives a meaning to it yes just as in standard brewery clear that these sorts of catch all provisions identify a key characteristic that the proceeding provisions should be understood to share and we know from the legislative history that that was the better view of congress's intent here and while respondents have this very convoluted explanation of the evolution of the statutory language the one thing they can't point to is any legislative history that construes the final version of the a i a in the way that they suggest and i want to see just a word about this contrary argument about on sale which really relies on interpret ing on sale in fact i made the point in my opening argument that there are no cases of this court that would come out differently under our interpretation i did not hear respondents to suggest differently and justice kagan to the extent that you asked a question along these lines about well can we put together pfaff in these federal circuit cases and get enough to get to some notion of ratification interpretation retains pfaff it retains both the holding of fast because i think that was a case where there was availability of the public it was a somewhat unusual product because it was a custom made product and so i think texas instruments really was the sum total of the relevant pub but i think the outcome would be the same and our hope about why congress used this final formulation to respond to justice kavanagh's questions on this point was to retain the existing jurisprudence surrounding the bars and in particular with regard to faff faff as the court will be aware articulated the ready for patenting requirement that is a requirement in our view that very much would continue to have force the experimental use exception to which mr stewart referred would also continue to have force and that explains i think even the legislative history of the little bit of legislative history to which respondents point and in particular representative walker in statement because by retaining those phrases while adding the catch all congress made clear that that jurisprudence should be retained the judgment of the federal circuit should be reversed thank you thank you counsel the case is submitted