no argument next to a number two thousand and twelve one one eight three written camera against sandusky corporation relief action and a packet misuse case merkle it all five of those cases found there was a right to challenge a patent on the basis of the young clean hands doctrine to act i believe fo the five actually mention the doctrine by name so the question of before this court today is obviously it does that the porker process holding expansionary politiken such as rich who that i don't believe so all your honor in fact if hydro were accepting rich's position i think hydro could have been far shorter opinion of him him to say that the standard for article three of i agree with everything your honour's said and i want to make clear we are not claiming that for a vote against such as rich who has no risk of infringement that declaratory relief should provide any kind of a standard we perhaps went further than we should've in our opening brief in trying to propose a standard for people who were being sued or did face risk we're not claiming that it's going to hurt her judgment standard apply is what is the standard of our position is by the group oh versus elian's case that cited a page eleven of our reply brief the federal equity jurisdiction is limited to what was available in seventeen eighty nine that they're not reliant on federal equity jurisdiction they're all lying on the that other stuff had different still being sued for patent infringement i think under the law where it got to the supreme court all of that was gone and they could no longer be sued for that infringement at the supreme court of knowledge so why brought by someone who has any trust standing and if they do they can win their case if they can prove that that patent does not direct the defense of a state  monopoly and the way they do that special thing that it needs the walking standard from my front center why doesn't that answer fully the question of whether someone with any trust standing gets to bring a lot here process type but my point to you is this language sounds like it is not it is the court explaining the rationale for its decision which is to say this isn't this isn't any trust case this is a section two case brought under section there had been no right whatsoever to order and for all the reasons that other courts including in particular the second circuit there said there is something here that doesn't seem to really clarify why whether they intended to open the i should hit flood gauge that would result frequently and i think often not persuasively and i'm skeptical here because this is an area which as you yourself have said is not it's not as if we are being asked to suddenly change the law this is certainly some support for the proposition in past cases that someone with only any trust sense can bring such an action and yet we haven't had so many of these cases indeed it's striking to me that this is the first time that this court patties knew something about it and then i think we're going to hear only now have an incantation which can only be resolved after a full blown trial and isn't susceptible to summary judgment so i think  opinion an edict or send this new rule for water process standing also flies in the face of over one hundred years of supreme court and i trust president establishing that direct purchasers such as reds are preferred plaintiffs for section two actually claims and section four  one is one of them but and certainly judge folks in this case relied on d d a v p i think there's no legal regulatory statutory or any church parental basis for an opposing such requirement as a matter of law as an operative  a practical matter i think what has happened is because it's so very hard to prove fraud because discovery is required typically there have that has been a priority seating in fact i've been able to find no water process case in which there hasn't been a prior proceeding that would  have uncovered the fraud so i think operative lee there's always going to have been some prior proceedings but there's no basis in law for imposing such requirement let me first explain why the sand is new limitation on water process standing has already been rejected by the laws and seek money damages not a full release san disk argument wants the court to ignore everything and walk a process except for the phrase long recognized procedures sand it is simply wrong about the import of this phrase hello first  complete writing under but still arise under because they involve important significant major pieces of federal in this case pat long that's correct you're  open the floodgates after in reidy a b p which is now been on the books for almost three years there have been four and a trust cases that cite d d p of this one of this which is one and two of those have been the fact that you have to have a market where there is no readily available economic or technological substitute means that the number of cases that are likely to fall into the water process rubric are quite good when they do right however i think that they present substantial harm morning here on the entry of the court i'd like to return to where mr kennedy began which is that inexorable conduct cases and just talk a little bit about what the supreme court was doing with those cases the supreme court didn't cite as an equitable conduct cases to define the class of plaintiffs that could bring this monopolization claim just like they didn't cite them to a doctor the substantive conduct standard which for walker process claims is not an equitable conduct but knowing an intentional what the what the differences between those two standards and it's not presented in this case since there's no dispute in this appeal that risk is adequately alleged the fraud element of water property claims as well as the other elements but what the supreme court was is saying when it says the monopolization claim before it accords with these long recognised procedures the procedures that allow private parties to litigate patent validity in the context of other action not just in the state seven circuit had made and that the supreme court was remainder of the walk a process decision makes quite clear the court understood that these novelization claims weren't limited to particular classes of plaintiffs both the question presented and the holding make specific reference to section four  clayton act which authorizes to buy any person injured by a violation and there phrased in terms of the travel damage remedy available to an injured party not available to a competitor not the remedy available to some would sue for patent infringement but an injured party and risen ledges it is such an injured party it also has according to the district court adequately alleged the remainder of the elements of the walker process violation which i think a judge more you heard injury no certainly not at the the broad remedial language of section four of the claim act reflects the fact that the primary purpose of that remedy is to provide a remedy to purchasers who pay over charges on because of anticompetitive conduct and that's the reason direct purchasers sort of the archetype will anti trust plaintiffs so imposing the limits that sand is proposed is barring walk all these monopolization claims by direct purchasers i think would rewrite the clayton act which provides this remedy to any person injured by an interest violation and it also runs counter to decades of supreme court cases rejecting these sorts of artificial limits and we cited to writer besides which i think is a good example of this in our brief for briefly just to address the charge made it through i think for the same reasons that direct purchaser standing  for the same reasons that there is no basis in the case law or the statute to ban direct purchase assumes i think there similarly no basis to make a direct purchaser standing dependent on the patents tarnation the requirement lacks any principal basis and worse it makes the remedy for injured direct purchasers depend on the outcome of suits to which they are not a party for this reason if the court determines it has jurisdiction the government has urged the court to hold that direct purchasers  adequately plead the elements and walk across this claim including of course knowing an intentional fraud on the patent office that those plaintiffs can bring that claim without regard to whether the patents been tarnished in another proceeding the court has of the question jurisdiction question thank you thank you