in which i imagine you think means equates to a lot of money those are breach of contract damages to which you can maybe argue you're entitled but that would have to be in the court of federal claims the i took a lot of money and that's why i'm harmed idea of litigation that occurred with lots of people who aren't even patent people injured i don't know for sure but you may fall in that category suddenly filing suit jumping on the bandwagon to file suit against these folks who are called market i'm not suggesting soft markings a good thing maybe it's great that lots of people did it but congress perceived it as they said so as a tax on the system a bad tax something that shouldn't happen huge part of losses they thought must most of it shouldn't be there they came along and changed it so how is benefits of the patent and that is that people parties were able to mark products as having a valid patent on them far beyond the time but those but to those people congress gave a right of course of action to ninety two do exclude everybody it allows people who are competitive only harmed by this process so if you were able to allege a competitive harm and you'd still be able to bring it to ninety two actions that to the extent you're saying a lot of arbitrary because people who were bring a breach of contract action in the district court seeking the damages for your time and effort that you suffered when the government breaks this contract well because i believe the statutes in concert back procedures really not necessary in the district court with your argument about the contract or the weight up of the district court he seems to put that issue under the heading of this is a due process violation is that's and that's the way you argue right you have to do it independently arguing the contract you were just sort of making that one of the arguments you were making in connection with due process is conclusion however was whatever that contract argument is about that doesn't affect the standards of the statute which is rational bas he's right about that and then he went on to evaluate whether or not there was a rational basis do you have any quibble with that of course that there's granby dear which granted your mics clear so the electoral property because it's a grant of power limitation and as a result when congress acts under its intellectual property clause it's my interpretation of justice clark's opinion that there's a heightened level of scrutiny so as to not only duly extend monopolies in the attempt proper because of it it just made me go back to my question of i'm sorry i wish i thought was that your position was it doesn't apply to you whether or not it's proper or you are saying that for you to prevail in that as a result i had a standing with the government and i relied upon that offer i accepted it and then the only damages i have were for the average taken they're earlier you're not challenging the prospective applications not all right you're just challenging the so called what we call the retroactivity provision guessing that it would be applied to any case you know from now you know you're jurisdiction it seems to be based on his idea that there's a contract with the united states your honors there is not a contract with the united states no one has ever understood exceed him statute as forming a contract there's no textural basis here for believing that this particular keep him structured contract that you would probably not the whole thing you present i'm wrong if you actually prosecuted it through to damages and then the government tried to take the whole hundred percent if you prosecute it through damages he would certainly be entitled to his half but not under my understanding of this brief is that it's entirely premised upon the idea that there is a contract is opening brief really doesn't offer any basis for believing that there's a contract will do to agree with the district court didn't even reach that issue right that's correct that's right it doesn't matter because the same level of scrutiny applies to the government's right to do does the government agree with that yes we do your honor and that's that's really a valid basis on which to decide the case i was just merely pointing out because i'm not exactly sure what this theory is that he's advancing his sort of various versions of the theory are all premised on the idea that there is a contract and so to us that just seems like the simplest way to resolve the case that there is no contract a key ten statute is even a policy about how damages ultimately were awarded will be divided between the united states and  good morning it please the court really with the government's position that because brooks has not shown at least under the supreme court standard national railroad that the congress intended to find itself contractually under the application of the statute so a lot of the arguments we made about whether the congress had a basis for doing in all of this is that different because the only challenging the retroactive application is there a different analysis i think the analysis under a retroactive that application is one based on a rational basis you know the question is not that they have a rational basis for an acting this in the future but whether or not they  noted i think in in many congressional statements there was a worry that there was a burden put on companies having to deal with for lists lawsuits and that certainly is a basis for determining active i don't i think that that argument as mr brooks pozen it posits it is grounded in contract and there is just clearly no contractual basis that there is no basis for making contractual argument to start keep him actions are grounded and have their origin in have a statutory or origin so as a result of that statutory or origin congress has to figure out a way in which to express in a statute that it is authorized and into town action and over the course of time then even the eighth circuit has acknowledged this that there is certain language that you typically see when you're that is precisely if not identical in the language that you find section two ninety two b so that's just an express authorization my congress to bring a key town lawsuit and it's no more than that no contract nothing contention that the numerous of quote frivolous lawsuits that were filed was indicative of a systemic problem in the patent world and that is many many companies had been trying to extend their monopoly right by prospect of that but the issue becomes is it just unfair for a government to a do six citizens act expend their own money and go forward and cut them off at the knees and say well you know what we were just kidding i mean if you think about it it's a way of generating economic activity and even under the commerce clause i don't think that's a viable or excepted way to generate economic activity however we are discussing the enterprise level property clubs here and again i think  government has limited powers here and those powers do not allow them to protect a third party from lying to the public about saying they have a monopoly right when they do not this case is particularly interesting because there is a ninth circuit published opinion that held the patent which was reciting on this product invalid in one thousand seventy seven yet despite that this number continue to be shown on this product even though the product has gone through various the government cut off your congress cut it off i'm sorry well congress by assuming well takes the president signing them so i mean that's a whole government but so congress congress cut off and each of those cases congress did not completely remove amendment because they've always own own which which party had violated the statute at that time and so when a case had not been brought then arguably it was not a harms that needed to be remedied under the former statute so a prospective application of this of the change to two hundred two b i believe would be warranted but the very fact these cases were brought indicate that someone in society thought there opportunity should the government not go forward with prosecuting the related action once related already demonstrated the relator always had the opportunity to come back and move forward with prosecuting a case that's just not the case