piece how do you deal with that well your honor first and this particular point we're making now which is a small point in the case our claim is that the only basis for the decision below is not a legally val understand that but that but at the time i knew the fair trial law was before the supreme court that they read it sir you argued before the district court that that might result in a change in the latch as jurisprudence and yet you didn't take a direct appeal at the time and what the time wrought and in solace appears to say that under those circumstances that's a bar to sixty six leave the spite of change in the law so how do you deal with the way we deal with that your honor is relying on the general principle that all courts of appeals have recognized including this court recently in the micron technology case which is when an appeal unsolved i don't believe in solace was a case where the appeal would have been completely futile because there was clearly a stablish precedent that was adverse to the claim being made but one that wasn't there are clearly established in virtually every of the context of which i am aware the courts have said that it is futile to bring us an appeal and you are not penalize for failing to bring in all situations where the issue comes up on direct exception by its nature to waive the rules when you would have had to be prophesies eating a profound change in law in the face of adverse circuit precedent will sixty six is the correct and a change in law is not extraordinary circumstance yes we agree with that your honor our should here it's not that because there was a profound change in law that by itself constitutes extraordinary circumstances so the extraordinary circumstances here are basically two considerations the first is the nature of the change in law that's at issue here the nature and magnitude which many courts are relied on what the supreme court said in the trial and then confirmed  that federal courts simply lacked legitimate power to employ latches in cases outlaw the supreme court has described what the lower court did here on the substantive opinion as a violation of the separation of powers that's extremely strong language the supreme court rarely describes a lower court as having violated the separation of powers and the reason the lower court did that is therefore preclude us from getting to a jury to raise our infringement for substantive issues and the reason the judge has applied latches against us flies in the face of exactly the policies the supreme court said congress was establish by creating provisions like section two eighty sets the supreme court said in patrol we understand intellectual property holders should not be in the position of having to rush into court to sue to protect their right six year period so if we did wait as we did here and try to negotiate a business relationship with johnson and johnson when that falls through and we turn around and sue in this case the judge  i decided you waited too long it's under reasonable to have delayed this long in fact the judge invoked the six year presumption against bringing suit to apply latches to us why didn't you appeal when the supreme court we saw the possibility certainly the patrol law if various contingencies fell into place we rate we raised it we mentioned it they were well aware of it you raised it in the district or you said that this might result in a same thing all the circuits of which it is you do not have to bring an appeal that flies in the face of well established circuit precedent in fact no court of appeals wants a doctrine to the contrary otherwise you're flooded with protective appeals that find the face of well established circuit precedent here it's not just circuit precedent it's an on bach decision of this court from nearly twenty five years it was the governing law context it hadn't been challenged or undermined in any way in the pap context you couldn't undermine it through other courts of appeals decisions because of the the whole of this court in the patent context and so we did not file an appeal that the district court or that a panel this court could not have acted on because it was bound by aquaman before patrol had been decided and changed the law we did what we're supposed to do i believe which is we didn't bring a frivolous appeal in the chief of well established circuit precedent revulsive knew well the appeal would have been frivolous in the sense that there was no authority yet from patrol that made it clear that author meant had been substantially undermined so if we had brought that appeal this court would simply reapply cockrum and presumably and and that would have been the end of the relief it's in a context where there was a calculated decision not to appeal for some set of reasons none of those cases involve claims of futility or that an appeal would have been in a provided situations and  said you should take an appeal and if you don't sixty six relief is not available to again we agree sixty six is not a substitute for appeal and of course when we come to you in sixty six we have a higher i don't believe there's any law that says that in the sixty six contacts the failure to they can appeal which would be futile in the sense that clearly established doctoring is against it why is th appeals based on remote contingencies that if the following the resolved or the way so perhaps not but but was just really remote and just futile would have been futile well we know it would have been futile in the sense that even after patrol the commonsense approach and the general rule as judge toronto called it is that there is no waiver when you fail to take an appeal in the face of adverse circuit precedent us not to issue six  but i'm not clear why you should be penalize in this context uniquely and from all other contexts for failing to file protective appeals that would flood the courts with these kinds of protective interpretation of the he be a statute and again when i want to emphasize here is the supreme court has told us the change unlike here goes to issues that are fundamental to the separation of powers fundamental to the authority of federal court implicit illegitimate inappropriate and authorized exercise of federal judicial power that violates the separation of powers that's that's a very profound statement from the supreme court about is particularly noteworthy the supreme court first says it's hardly extraordinary that subsequently after petitioners case was no longer pending this court reached a different interpretation that's not extraordinary it's all the less extraordinary in petitioner's case because of the his lack of diligence in pursuing the case what are they mean by that what's the last what's a lack of diligence and why does extraordinary have you get fought for that but you don't get treated as extraordinary in the rule sixty six context and gonzales the petitioner made a claim contrary done eleventh circuit law he lost and in the district court in the merits of the appeal to affirm the district court i think that would be a proper choice of this court's discretion at the same time i think it's a wise use of the court's discretion not to engage in the merits of an ng appeal it might or might not be affected by a subsequent decision i think that's all that those ruling stand for but you would you would articulate that it is that maybe party should all file a protective of appeal  well i think that it depends on what the point of the i think you are permitted a whole line of supreme court and second circuit cases stand for the proposition if you make a free calculated and deliberate choice not to appeal and your guesses are wrong you have to pay the penalty in a rule sixty six contest but that doesn't mean that you should always be filing appeals because a rico case was at issue and decided the case an april april twelfth the case was argued the same issue was pending before the supreme court at that moment it was argued two weeks later in the supreme court travelers for traveller's why i asked you know the second circuit said our common controls you don't take an appeal you lose so this not only rules don't our own rules recognise the appropriateness of arguing on appeal or  overruling no part of course of course the scene especially when there is no split in the when there are no circuits there will disagree with this court the only way to change the law in this court is to challenge it in this court and indeed you know when we talk about extraordinary you know you take the only case that's really force where a change in the law aces the terrorist cases in the second circuit where the second circuit went out of its way to say one that was extraordinary because they have pursued their remedies met in all had a completely lackadaisical interest in this issue it knew it was out there it was represented but professor arthur miller right miller federal circuit case law they did nothing and then the case was you know the case was argued we actually attach portions of the supreme court argument to our host trap papers and you know i think many observers thought that latches was going to survive as a defense in copyright law presumably that's what they thought they did nothing but their interest in lackies and that law and challenging it did not exist until three months after petrov it was decided and for the first time they said this word should be set aside there's an interesting finale here that we all recognize johnson and johnson has an interest in finale as we told the district court when this case retain the risk associated with this the front lawsuit that's reliance on the outcome of this judgment you know there is no basis there is nothing extraordinary that any of this and i haven't even mentioned whether patroller did or didn't change the timing like maybe the little bit off from the dates but essentially the trial was held in january the day before patrol was argued in the spring court as professor miller told the district judge it was argued in february their papers it was decided i think in april april it was decided it brought the time to appeal expired in early may i think by the end of may a patrol had been decided and sometime in august they came back to the district court asking to file this sixty six motion are we generally the situation in which during the appeal period the same argument existed to them as it did throughout this case i frankly think without getting any further into the district court's decision it would have been an abuse of discretion for her to create this appeal a trial that didn't change the law in federal judge i wanted to answer your question not just to and solace but a ballot waiver on sixty b if you look at our reply brief the pages sixteen to seventeen we actually have a number of cases including u s supreme court cases the in which the court took on sixty b six motions and did not hold that the failure to appeal during the direct process was a bar to sixty six consideration that they even consider appeal during the time for appeal would have been from us but don't our rules pacifically say that it's appropriate to argue to preserve an argument for overruling pressman on appeal on that you're not going to be sanctioned for