aids healthcare foundation is the largest nonprofit provider of each i mean that i take it that the problem here is that you'd like to get some generic drug manufacturer to file an problem i'm having is under twenty eight u s c nine fifty five the end of file or his precluded from requesting it clara tory judgment as i read the section u ntil after forty five days after the end of filing so why shouldn't that same limitation apply to your client in other words why should your client be treated the same as i agree there is presently no direct infringement there will be a direct likelihood of your putting your direct infringement is based on what they and the fire will do right correct so our client is currently engaging in activities that are going to induce if it if if this if there were no statutory bar here the whole purpose of the clerk turned judgment act is to permit people to resolve future uncertainty even though the future activity doesn't bite at this time i'm not unsympathetic to that argument but i'm still troubled by how you can evade twenty one c nine fifty five by saying that you're trying to get somebody to based on the activities today and that's why i declaratory judgment action is necessary in order to get rid of that threat of this future liability and addressing your question about the forty five day that infringement because there's no direct infringement but the activities that would give rise to that claim are present and i think that that's similar to the pheno research case that we cite in our briefing where the future direct infringement has not yet occurred but there is substantial questions as to the activities that would give rise to an induced infringement allegation once that direct infringement were to occur in the future is going to be what the product is going to be when the end is going to be filed when it might be approved or all hypothetical or all speculative an unknown at this stage i want to address it for a this file i mean if you could imagine a situation in which a month away from the end of filing the foundation here is encouraging somebody to file on and that could lead to inducement liability different question so my hypothetical is a month before the end of filing the aids foundation says please file this and it will help you file and then they they could incur liability for doing that even though the direct infringement is a month in the future right i'm aware of new cases which no would not answer my question is that true it would depend on the facts if there's you know there's absolutely if there's enough certainty if there's enough certainty and there's a  fine product i still question under this court's sandoz decision and then take decisions whether the infringement liability deduced or otherwise can ever attach until the end is filed but that's not this case by a long shot because here there are no concrete allegations as for example who they induced the only allegations in the complaint concerning inducement because i think it's important because otherwise their liability is only when the product just watched one day their hypothetical liability as  goes the only allegations in the complaint about communications with generics is that they sent unsolicited letters and they were normal at the knowledge in question by the district court that there had been no response to those communications that's  that's not this case your position is that on your bet attack and sandoz the fact that in and out might be filed in a few years that just doesn't give rise to the kind of a media scene reality required for as to the identity of the end of pilar and the end of that was going to be filed the fact that that might be years away under sandoz wouldn't prevent a declaratory judgment action right to the extent that there was no prospect of change in the intervening years but that's  single double and triple combination only one of them has all the tech appear so there's no way to know when the end of funds will even include that particular drug and thus implicate that patent the same holds true for the three percent or five percent no way to know which of those claims might be implicated if any of them or all of them we just have no idea at this stage what liability could possibly rise in the future so from the perspective of the declar filed any proceedings and peta had for example i p r's or anything like that no they have not and certainly that was an option open to them if they wish to challenge the patent in the patent office and of course r does not require a showing of article three standing as does proceeding in federal court so what that is an option is simply chose not to avail themselves of for whatever reason separate and apart from the question of immediacy and realities also the question of whether or not there is adversity in the sense of any action taken by the declaratory judgment defendants in this case japan tobacco and at first a half and if this case there is judgement claim by trying to manufacture their own dispute so they write a letter and say if you won't give us a come in not to sue then we think that gives us jurisdiction but in court this ain't no case in which the board is found that that is sufficient in the absence of some other acts adverse to the clare tory judgement plaintiff they point to prior litigation but of course i think it proves exactly the opposite point all the prior litigation was directed against reproduced in the complaint there are twelve patents listed there in one of which is expired so there are at least six unexpired patents for which a generic manufacturer of that's a product they choose to make is going to have to do a paragraph or  paragraph or the acceleration here really accomplishes nothing even if it were constitutionally permissible even if it didn't violate section nine fifty five there's nothing to be accomplished that won't get accomplished when and if there is a paragraph or  useful in to the public represented by this complainant you know i think it would be speculative just whether it would have any utility at all because for example depending on what and the question is whether they can come into court to toe on their own initiative and challenge today that's what they're asking for that is absolutely the fundamental question what we would submit is that on this record where there's no product in development that we're aware of we don't even know who will develop it we know it's not a giraffe we don't know when they will develop it we wonder you're saying that it's impractical but that isn't what they're asking for that just asking for the right to come  court and fight it's more than impractical your honor it's so indeterminate that it doesn't meet the immediacy or the reality requirements of medicare this is a hype this dispute is absolutely and completely hypothetical because there's no idea of what product is going to be made and thus what issues need to be litigated and so it's a hypothetical dispute in which the court is potentially going to be asked to address claims that will never be of practical relevance because for example the generic profile on a different combination of products and those claims would never even be a cert so it stands kind of practical requirement in medicine you know of immediacy in that there be a concrete product and that there be actual current harm that drives the fact that there's no it doesn't have to be current form the whole purpose of the declaratory judgment act if somebody says i want to do something in the future imminency is very much a requirement of met me and the declaratory judgment act and there's no imminent harm here h f to the extent it's ever going to be exposed to infringement liability it'll happen after a generic files goes through the f d a process if it's successful gets a product approved chooses to launch that product and at that point h f will be in a position to purchase the product and presumably use it and thereby have liability but there's of brief points across the concreteness issue would you because that seems to be their main argument is that we don't know what the end of would look like we don't know exactly what you're trying to do and you have here several different claims we don't know which ones would be complicated by the conduct that you're encouraging well it's the artificial act of infringing of the and a filing there would be the you have said so why didn't you file something we said we want somebody to do to produce the specific product that looks this way and we think that potentially would infringe x y and z claims of