bhangra view is devoted to showing that a court sitting in equity conducting an accounting historically could reach and consider issues of damages and  that i think is the wrong approach to the question this court presented the answer or the real key question that will help us on ravel the legal issues in the two on bong questions is whether a jury trial question is in fact whether the procedure that is awaiting us back in the in the non final district court action is whether this century has any impact oh no i think the statute is critical because it is it is the statute that gives us the word accounting and so the question is whether what we have sitting in in wilmington in district court is a judgment that is final except for an accounting so we must we must we must know then whether they went off in terms of what their argument was about wasn't that because you spent most of your blue very setting up that straw man that was easy for them to knock down it certainly was not intended to be a straw man your honor i agree that when you read our brief we're focused on the historical nature of what an accounting is to try and answer the question that i posed and historically and traditionally for a long time an accounting was a procedure with a special master determining profits now it's true it is true that particularly after eighteen seventy the court sitting in equity could look at damages issues its dairy queen versus would the supreme court case from one hundred sixty two talking about the distinction the modern relatively modern distinction between on equity and that what's the answer the question because mcculloch supreme court case was waiting in the district court was in fact an accounting and then an accounting including damages because as we just discussed an accounting in front of a special master in equity would include damages calculations and the reason that it would include that is yes it would if the damages issue was an accounting referred to a special master and that that's a discussion very clean versus would where the plaintiffs in that case it was a trademark infringement and contract case the plaintiff in that case pled in their complaint for an accounting really an accounting of the money that should have been paid under the contract the defendant sought a trial on the issue the district court did not grant a jury trial finding there was no seventh amendment right to a jury trial because what was being sought was an accounting and after it went to the supreme court the supreme court said well no you labeled an accounting you pled for an accounting but really what you're seeking is money damages and really except in extraordinary circumstances that's a legal issue for the jury and for the court sitting at lot and action on on the make a difference if she was with jury rather than the special master because if it's before a jury is on an accounting and that's that's return again to the dairy queen case which explained in what circumstances one could one could refer these kinds of damages issues to an accounting before a master only only in cases where the damages issues in the accounts between the parties are so complicated that only an equity court cannot ravelled them that's an exceptional case where the burden of showing it is on the plane up which the supreme court noted will will be indeed be a rare case but if we had a tremendously complicated unusually complicated set of damages and we have the plaintiff preferred to take that to a special master we could if we showed that it was sufficiently complicated which would be a very high standard under this case in fact have an accounting and then the case would fit squarely into what handled by courts sitting in equity which the court of delaware is not the court of delaware it's fitting that law and there practice that in damages were enhanced by equity courts and the same kinds of determination that are made and willfulness were made by special masters and recommended to district court judges just as damages issues were now those damages issues were raised only when the profits were found to be less than damages and somebody sought to prove them really the  classic historical archetype of an accounting is is a special master looking through parties books and a prosing proof to see what the infringers profits really works but i agree that wilfulness was tied up in that now we are briefly explained by way of showing that what that a jury trial is not an accounting we pointed to all the differences between what a jury and a district court would look at in making willfulness determinations and what is to a jury trial on willfulness on the facts of willfulness as pointed out by some of the friends of the court and that would seem to me to be one of the red flags that says this is not an accounting inequity if it's a seventh amendment issue then how could it possibly be an accounting and thus a willful factor terminations could not be part of accounting i would say that the enhancement by the judge obviously is not subject to data so it's a slightly different category so in the hypothetical situation which i understand is not exactly the situation we have here because neither determination has been made right if if in the hypothetical situation a judge or jury had made a willfulness determination and had a w assigning but the judge had not yet assessed the impact of that with that prevents the decision from the final or could the decision be final at that point assuming all other finality aspects  satisfied i'm sorry or are you asking whether the decision is a final judgment for purposes of the final judgment rule or whether it is yes for purposes of appeal that we're talking about ok no i don't believe it would be a final judgment for that for application of the final judgment ru appeal under twelve ninety five and nor because the court is not sitting in equity and the remaining decisions are not are not ethical ones i don't think under the current statute i don't think that a qualified or twelve money to see to either have an appeal in engines of not neither quite that either let i certainly would agree that if this court decides that a jury trial on damages is an accounting would not just be a historical artifact first of all in particularly complicated cases where somebody actually sought an accounting of course it would it would have application and those are the circumstances for which the statute was designed when we look historically  at the twenty's and the thirty's when the statute was was designed and first applied those accountings were tremendously complicated and tremendously lengthy certainly much more lengthy than five or six hours of testimony by experts in front of a jury which is what our well that that's that's why i pointed to the dairy queen case because i think in limited circumstances and i agree it would be very limited circumstances i think the utility package could still go to an encounter and of course it's worth it where it's complicated enough that the plaintiff demands it improves it to trying to accomplish and very clearly was avoid a jury trial and if if that's why the supreme court set the standard so high for it to be an accounting and not an action for damages is because  paramount the merger of law and after the one of the paramount things that congress directed is that the seventh amendment rights during trial be preserved so that's why the standard is so high to take us out of law put it in equity for money damages where we have an accounting you would do it in those cases you would do it in design patent cases you would do it in all of the day to day situations where for example the you know the jury finds a royalty rate and we have to assess what the sales for and apply that royalty rate up to the date of the judgment for example and we would apply it in post judgment futureworld to situations where what's waiting is to sort out you know what what the defendant has been is selling and there that's an accounting and that would be fine wit is run very quickly through the history but in one night forty eight as a consequence of the merger of law and equity that congress permitted in eighteen in one hundred thirty four and that congress finally arrived at the supreme court implemented in hundred thirty seven eleven years later twelve ninety two c was finally written and that was really a ministerial kind of rewriting to reflect the merger of law and equity they substituted civil action  substituted the word judgment for decree and the committee notes indicate that this is in view of rules two and fifty four of the federal rules of civil procedure and rule two says there should be one form of action rule fifty four this is judgments  the when there's a jury trial is going to mean even the case right now day with are coming to me when there is a jury trial it's an easy case because it is apparent that there is no that that can't possibly be an accounting cricket's a cheery if it's a jury to do it i would agree standard of review of a jury trial is very different from that of a bench trial the standard of review of a bench trial is as it turns out identical to the standard of review of a accounting conducted by a master approved liability accounting i think it's actually i think your honour's correctly that it is a simple statute and it's simple relatively simple to to look backwards and apply it and say this is a statute that was drafted to permit a narrow exception to the final judgment rule the senate committee reports indicate that it was prepared specifically to deal with the very narrow set of facts where a patent expires during the litigation  the factual issues of willfulness are inextricably bound up with the liability issues on infringement validity the all of those all of the things are really in some sense the same kind of question and many of the facts are going to overlap and i certainly you know if a case is five protected like this and then returns for a jury trial on localness i think it's going to be very hard to to know i looked like you know i looked in the in the one thousand four walkers on path that we had our library and i look at a lot of these other things that have been cited and i did it's very hard to tell what the criteria were back in nineteen zero four or nineteen twenty seven for enhancement and it seemed to be what what the treatise seemed to be saying is that the judge the enhancement decision with the same inequity in accounting as it was that law and that's explicit in the equity statute at the time and the judge in both cases would would look at the damages figure and decide if it was right and if he or she didn't think it was right would have collated up to triple and the criteria for doing that and whether that's parallel to the criteria seagate i think that w process that you give all that involved from the nineteenth century you know to now the twenty first century how parallel exactly it is i can't say isn't your position diminished by our recent kenyan inquiry which calls into question how much not really fully vetted in this case but certainly have the discretion to try things in pieces or not in cases the question is whether the court whether the procedure between the district court and this court can be that those issues can be stayed by the current practice i don't know how many cases have come or will come to this court in this particular procedural circumstance that would be changing the law i don't that's that that's what i'm not i'm not sure of your honor because you know we had a discussion if there were an open didn't say well i did it because i'm being cautious you're we had a long discussion at the panel argument about the discourse scattered previous mentions of this statute in similar contexts and as we indicated in our brief i don't believe that there were any that considered the issue and found otherwise you know if and found that bet a jury trial is an account they were came up in sanctions contexts they came up in contempt hearing they came up at the sides and opinions under snotty sure whether there was really ever been opinion squarely on point i think in terms of policy for the future where this affects the future certainly after the bay there will be more cases where plaintiffs are not seeking an injunction and there will be more cases in which interlocutory appeal pursuant to the injunction proceeding is not available and so that you know will sort of amplify the problem and i would also let's say that you know this court has noted that historically there were relatively few jury trials until this court was created and you know there really isn't a lot of history there for for this for this situation to have been better you know i'll also note in terms of expanding and contracting the courts to interlocutory the children's fiction really what we're talking about is unless there's a final judgment consider the supreme court's the pile on and some of the friends of according to the government have argued that the fact that congress didn't step in to do anything means that we should just sort of continue to pretend you know a jury trial is an accounting and i think looking at for example the supreme court decision in the helper in case explained why that's not correct and it goes on at length to talk about about the dangers of extrapolating from congressional non action congression congresses suppose that intense a de facto of men a statute and how dangerous that is i don't i don't think it's fair to here to say for all the reasons it says and help bring to say that what congress meant for this interlocutory appeal statute to cover damages actions that law and just and that's why they didn't you know they didn't step in to fix it really what we need is a congressional amendment mr temperament even  court the two questions posed by this court i think we felt were all revolved around two issues the first of those issues which was in their opening breeze as judge o'malley mentioned we thought was whether or not the word accounting is used in twelve months to see to include issues of damages and will forms i think i've heard my opponent concede that at least he now believes that is the case and i think the overwhelming law and for us that we have shows that was in fact the case in the second question where i think the real argument here is is whether or not the word back and look at what congress did to tell us that answer if we look at what happened in ninety seven there was a statute written that allowed for unlocked for two years except for when there was an accounting for meaning in that statute it required that it only be in court in equity if congress had intended for accounting to mean in equity only it would not have needed to add those words to the statute so by their reading the statute putting in equity into the definition of an accounting you're rendering the words in equitable elsewhere in the statutes a purpose which we know you interact in theory i have not specifically looked at that but my understanding of that case in the other cases in that line such as the room case which is the u s supreme injunction because the patent expires the party could not proceed in a court of equity just on accounting because that was not in and of itself part of part of the equity court it was just incidental to the injunction which really brings us back to the point that that the supreme court differentiated between i don't think the supreme i don't think the supreme court ever said that an accounting is not a jury trial and damages i don't believe that's what the supreme court but when you don't see any difference where a jury trial and damages that still ha to decide issues like what no reasonable world to rate is what the base against which that relative ray should be applied that that that different senator that i'm sure accounting if you think of just the word in today's parlance that may be the case hundred seventy if we look back at the cases if we look back at what was happening that statue was inactive it was very clear that an accounting included all those things your honor just mentions and so therefore when the statute was promulgated that was the meaning of an account and it did include those determine a thing that sometimes only takes out i agree that back then the primary way this was done was to a special master i disagree that today damages issues only take hours i think damages cases can take months if not years when you go through discovery problems with discovery motions to compel expert reports and all these issues are going to the damages case we just doing them really are now and yesterday we had a few days to the trial but they had all sorts of cost and complexity of the case overall if congress intended courts which includes the jury trials and they also did something else there were two words in there that were a little subtle and i apologize when in our brief but we weren't really sure this is where the argument was going to go based on the initial brief there the words were ordering of it took out the words special master now if they wanted to continue that practice of ordering it to a special master as my opponents can tell you why wouldn't they have let those words in my my reasoning is they took those out because they were broadening their broadening into all courts not just courts  i think it's the core controlling it stopped it and i again i think it comes back to bite for casey question a lot of the issue that we're talking about here and whether there's policy reasons and overlap and things like that that gets back to the question of should have been bifurcated to begin with and that's not the issue from the court to the issue  determination is that correct and i feel that is no different than the issues you go through with damages splines handed with factors of determining whether it's marketing capacity manufactured past where there's an alternative acceptable alternative infringing not infringing alternatives available so it's really just all all those issues why yes they may touch on more substantive issues all relate to one single thing and that is the amount of money at the end of the day that's going to be paid from the infringer to the patentee and that's when you go back and look at the congressional history that's what congress is trying to avoid it was trying to say let's find out what the liability is let's draw a line here everything else that deals about how much compensation is to be paid let's hold off on that until we're sure and your poll of course had an opportunity to determine whether that liabilities right because we spent all this time money and effort and with willfulness you're having people wave privilege and you get into other issues where if we can hold off and make sure that's necessary first congress is saying that's what you should do so what's your response to botches assertion that that wilfulness issues and i believe the future intertwined well but i think the answer your honor gets back to this bifurcation issue it's a it's an issue for the judge at the district court to determine for us it's an issue for now it isn't for you it is an issue of an outing if the court has determined it was proper to bifurcate so if we're looking at  an appeal that comes to a willfulness issues or have been left open in view of the plain meaning of the stats through the plain words how can we say that we have a final judgment before us when you have a final judgment before you because there everything is complete other than accounting based on the definition of accounting from back to when the statute was promulgated this court may have added additional tests and procedures and guidelines we look at for issues like willfulness but that cannot divest this court are respectfully i believe that congress did include willfulness in the statute by calling it an accounting and using the common knowledge or the common meaning of accounting at the time that it initially enacted step by why you would have said will with this we've got a number of cases that's exactly what have been happening so they didn't have to further define that they understood that was including nine hundred eighty two when they gave when they formed this court they again amended the statute they didn't have to  and let's say just in closing your honour's in one thousand twenty seven when congress acted the predecessor to this statute it recognized the great burden of expense it was obviating by allowing appeal of liability before an accounting for mandatory for monetary do have other cases that did do more than analysis one of those the un published sri case we just need to very clearly went through this issue on both damages and willfulness and found exactly the point we're seeing today but my point is those cases well may be assumed which we assume the court is looking at its jurisdiction and considered its jurisdiction in those cases and the case will judge markey clearly said in recount or this is a walk and in fact he went so far as to say it was reprehensible but the other side  argue that wasn't the law in a footnote but but my point is compared to what they provide which is really no support for their side that is the law that we've been following we think that is also supported by inspection it's not upon this court to simply of law and i think that's the case here where we don't have overwhelming reasons to change what we've done in the past so i would ask the court not so thank you reed's mr hammond you have four minutes all right in in my in my four minutes your honor i would like to run through just very quickly a little of the history of this to put the law equity distinction that we've been talking about in context we don't have to go back very far in history we only need to go back to maybe eight hundred seventy or so which is when when there were two separate statutes at that time there was a statute that provides for an action on a case which would be an action at law in front of a jury for damages and a separate statue for a bill in equity that was that supplemental appendix seven and six of our brief those two factors and the equity statute allows one to seek damages as well as profits interpreted as i said in the treated this to allow damages you look at damages when the profits are are insufficient now even then i think if we look at chisholm discussion of distinction between law and equity for example even then it was long understood that you could go to equity only if you did not have an adequate remedy at law most of the time people would seek an injunction and that would mean they could they could go down the equity path and end up in accounting for profits and damages those accountings became according to all the contemporary sources of complete disaster where the the just the accounting is would go on for that was described as half a generation and cost more than the money anybody would ever get back and between that and the loophole that sprang up when somebody patents would expire during the litigation and so there were no longer be questions of an injunction therefore no one could appeal under the injunction interlocutory appeals that to congress in one hundred twenty seven past the statute that we're talking about which was directed specifically to suit in equity not to then still existing parallel court of law and correct exactly exactly correct and those those two different patent statutes were notified in thirty five u s c sixty seven and seventy and remained in parallel one thing that i  noted in the briefing was a reference to the first formal complaint for patent infringement that was included in the statute now in the back of the federal rules which you'll notice talks about an accounting i looked at hundred thirty eight edition of moore's and that explained that that form was drawn from a bill in equity in fact from a supreme court case called the monk a spin one hundred thirty seven that talked about the requirements for pleading and equity so if we look at the form and we've seen accounting the forty two then in forty six one hundred forty six the statute was amended to take the profits element out of the equity statute again long after the statutes remain separate forty eight i'm an eight amendment which if we look at the legislative history and the committee notes was a formal amendment to conform to rule two and rule fifty four and to reflect the merger of the powers of the court of law and equity together it didn't i'm