principle that when congress and actually limitations period that courts may not apply the doctrine of latches to shorten the statutory period in padlocked congress prescribe a six year look back period from the date of suit and a twenty year patent term injecting judicial discretion into the statutory scheme which frustrate the will of congress and create uncertainty about something as fundamental as the timeliness of soup there is nothing in the patent act which compels the creation of a unique patent law rule and if the court were to create an exception here that would invite litigation in the lower courts over a wide range of federal statutes you don't dispute that equitable stoppel applies across the board that's correct your honor equitable stop applies and has been part of the law on the law side of the court since the mid eighteenth century as the court held and in dickerson in eight hundred seventy nine it was originally actually called stop and pays and it became known as equitable stoffel but it's been a legal principle for over  well over one hundred years and it applies to all actions at law and inequity argument sure because of course they dispute that and they have a long list of cases government and so forth going back into history and they have the man who wrote the statute and they have words in this that shoot and they say if we look through all of those cases what we will find is that there is a long history of applying l is in one legal context or about patents in any way almost all patent cases were equitable cases and so it would be a big change and you know all those arguments now you've come back and you have t argument two cases the other way and you say two are mistaken so it seems to me what i have to you on that one is read the cases and i come to the conclusion that there is this long history here and the last you should study and if i come to the conclusion that we've you really look at these cases there isn't that history and it should go up but neither is it a case one way or the other a bus making up anything it's a question of what was the heart of the law for quite a long time before the guy who writes it says yeah it includes latches and you could read it the other way not too so i didn't get too far with the set you got your honor let's discuss on enforceability one of the interesting facts about the case is that the federal circuit did not actually take up the position that the word unenforced ability meant latches and i think part of the reason for that is for those of us who practice in this area every day we just don't think of lachesis as an out of force ability doctoring on a force of billet he brings to mind rendering the patent on  may not be enforced and that certainly applies when there's been agreed just conduct like patent misuse or fraud on the patent office but it does not apply to latch ins patent can still be enforced in this case and any others seeking damages from the date of suit through the date of trial we didn't have a dictionary definition here about enforceability from one nine hundred fifty two or any other time the respondents position is that it was known but they don't have actually had any support in the dictionary definition and he certainly didn't say oh i did just to not be there i'm just reading what the this is in the read brief so you can correct it if it's wrong wouldn't so the commentary his commentary explained that quote on enforceability and quote was quote added by an amendment in the senate for greater clarity and that as amended the defenses would include equitable defenses such as latches now there are words between the quoted passages so are you going to tell me those are that there are words of between we have to interpret sort of the semi colons of mr federico as post nine hundred fifty two commentary to reach the result he believed that latches was included in the statue but he never said and no court has ever said that the form  is being asserted here which would be unique in all the federal law was a political we have section two eighty three of the patent act which applies the remedial provision for injunctions and we have section two eighty four which provides the damage rabbiting section two eighty three says that injunctions may be issued according to the principles of activity that certainly includes latches and that's our position and that's consistent with the court allowed section two eighty four is the damage remedy and there's no there's no power granted to courts to overrule the clear language in section two eighty six which is the time limitation on damages in the patent with the clear language argument really doesn't help you at all i mean it doesn't say there's no clear language saying latches doesn't apply in this context it gives you a timeline in the question where the latches as applied is just an issue that's not addressed in that language respectfully disagree your honor section two eighty six is entitled as title time limitation on supplant this court's rule ling and campbell versus haverhill where the court was put to the hobson's choice of saying that the log patent law was that there either was no limitations period or we apply state law the result was that the court had to rule state by state limitations period the intent of congress was to abolish state by state limitations period and i think that they would be very surprised to find that it's now judged by judge under the doctrine of latches latches has never been applied in the face of the federal statute limitations the i lost that case of how right i was but nonetheless so i don't want i think in this case just to repeat i'm still dissenting so i'll take the law at least i'm tentatively doing that and then i look here to say well is there a significant difference and i've found so far you've mentioned them may be case law and history but i have to look that  may be language but there are two sides to that too then i found this that in patroller to me in dissent a major point which was willing answered by the majority is what's going to happen after about thirty years where the plaintiffs has just laid in wait to see if the material is a success after they spend all the money it's success to use for the last six years and collect all the profit while the defendant was the one who paid all the money that earned the profit never fear said the majority because you can deduct all that expands from the six years profit that you're suing for never fear and i didn't really overcome that argument very well but in this case it isn't true that you can deduct and therefore plaintiffs can lie and wait to see and it is forty times more difficult for a company that has relied on their not suing to change the hundreds of billions of dollars in investment and in case we think that the irrevocable they'll has filed a brief involving sprint lucent and other companies where they spent close to billions knowing there was somebody out there who might sue but he wasn't going to he led them to believe he wasn't a proximal and then later on they come back and they try to get all this money just the profit without the deduction of the loss when it's too late for the company to change now i'll look into that but that in my mind is a big difference understeer element so let me address that a couple of ways first of all just to clarify i am assuming that there was unscrupulous behavior that would ordinarily call into play lackeys i am assuming that for example after telling him don't worry i won't  a function of whether an existing doctrine lachie applies to the case and that i think is the issue here so i have to assume lachie applies to the  when in fact in an appropriate case you do sue under copyright what you get is the profit from the last six years minus the costs to produce that profit when you do sue in patent and the examples are in the dell brief you get the profit for the last six years without subtracting the money that previously went in to produce that profit and more over companies spend hundreds of millions of dollars in reliance oh on whatever conduct gave rise to into eighty six for agree just conduct we still have a stop or a stop all requires misleading conduct that leads the infringer to believe that they will not be disturbed that still applies  genuine issue of material fact on whether or not the defendant actually relied on id on any conduct of the plaintiff and sent it back down but with respect to the lachesis the court said well we have these presumptions that apply and therefore there's no there's nothing to try course it's unclear there are certainly some cases that tie the two together but it probably just like here with an axis lattice now there are there are there are some cases on a stop but i think the a stop of doctoring really emanates from the same place that emanates and copyright law which is it's a general defense generally applicable in actions of law like collateral estoppel like a cordon satisfaction everything doesn't have to be into eighty two you've got two more points that you want to do ruse yes you are lying in a way we have to understand what the practicalities are the district court level for those of us who live in the trenches here's what really happens so you have section two eighty seven of the path that which the respondents really don't want to talk about congress consider this lying in wait problem the problem of the defendant who doesn't know about the infringement and it did three things first of all it made patent filings public and there searchable on the internet and there are patent attorneys on the other side of this who are fully capable of looking these things up second they enacted section two eighty seven which is specific limitation on damages you cannot claim back damages in a patent case unless you comply with section two eighty seven to eighty seven says you must give actual notice to the patent to the it to the defender to defend it or you have to mark your product with the patent number there are some exceptions but that was the way congress dealt with this problem of the infringer who wouldn't know about it at most one of the things we're worried about we're not worried about the lever or something it's chips and things like that and you can't market news that's right so what that means is the plaintiff can't mark the plaintiff therefore in most cases has to give actual notice to the infringer now once that happens the infringer is a tortfeasor and they're on notice so they have a couple choices they can go to the patent office under the old rules and new rules to try to defeat the patent they can file a declaratory judgment action they can change their behavior or they can do what happened here on full notice they decided to plow ahead to collect a lot of profits over years and at the end of the day they might have to pay what the statute requires a reasonable royalty there's nothing unreasonable about that unlike copyright law where the infringer can be stripped of its profits the remedy is in a reasonable realty and patent cases so going back to the statute which really has to control here section two eighty six is the time in this rule that congress provided they had a very clear delineation of the remedies to eighty three is injunctions to eighty words damn it then they had the time limitation on damages which they call the statute of limitations that's how they set the statute up and they put a separate requirement that in order to claim back damages you must comply with section two eighty seven this is an integrated whole and you also have a twenty year patent life from the date of the filing of the application now which means usually seventeen years takes a couple years to get through the patent office unlike copyright law where the copyright could go on for seventy years and with a three year rolling window patent laws limited you have a six year window and most of the time patents are not as valuable in the first couple of years takes time for technology to make its way into the marketplace once it does the patent holder has a choice patent holder if he sees a small he or she small sees a small infringer who's not a threat just like in the trial and they can decide you know i don't want to go to the expense of federal litigation i don't want to spend ten years and millions of dollars on litigation but if down the road that little threat which was not much of a threat turns into an existential threat the patent holder can sue but congress dealt with that problem by saying you can only get six years of back damages when that happens six years and your patent terms to run out at some point so the rolling window is going to collapse into that patent term and in a relatively short period of time and that's the structure of the statute that congress set up this court has said that if is going to make  e that congress intended a clear departure from well established equity rules that it will demand that the the party asserting that provide clear evidence a clear statement is a good discussion of in the bay same principle you had an equitable principle that was applied by the federal circuit in a way which was very different from applied in other contexts and the court insisted that patent law be conformed to other areas of the law you can i can i go back a step because you may know if i understand what you're saying we have a case that would otherwise be lachaise that is everyone agrees that smith has a jones everyone else are told the defendant latches would normally a plot and i was saying now they're going to get vast profit without the expense that went into making the profit you say i'm wrong the reason i'm wrong is because you only get a reasonable royalty and he calculating the reasonable royalty the judge will subtract the cost of producing that royalty during the six year period so you'll end up where you end up in copyright now is do i have the argument correctly not close but let me just clarify one point to make sure we're on the same same page here if the patent let's say the defendant has it the infringer has a profit margin of forty percent in copyright law off forty percent could be stripped away and then the defendant has to kind of work backwards to apply the costs to that that's not how it works in patent law and patent law expert will come in and say well what's a reasonable royalty that arm's length transaction would have resulted in if it if the go she had taken place the day before infringement began and the number might be three four five seven percent but it wouldn't be forty because a forty percent royalty wouldn't leave anything for the defendant and that's not what happens and in real life with another point about the patent the patent trolls there's an f t c report that came out o october sixth of this year f t c has been concerned that what they call patent assertion and it is the polite term that what is the effect on the economy and i've been looking at this for several years they actually did a study where they collected confidential data from lots of different the participants in the patent assertion arena and they came up with some interesting conclusions with which actual actual data and what happens often in court is that people say patent troll and you don't really know and we don't really know exactly what they mean by that we don't really know what the effect is but we don't two things first of all s t a is no patent troll is an operating company you have met in awe who's got a petition that's pending and operating company you agate has a petition pending an operating company that's out on latches after five months the companies get hurt by this operating companies who don't like to sue and therefore wait until they have to the patent trolls normally file patent cases and get back damages because they usually can't comply with section two eighty seven and they don't if they give notice ahead of time they have to sue to monetize the court said in halo one of the arguments made there it was rejected on the grounds of the statute controls one of the arguments made in halo was that the patent trolls were collecting a lot of money based on licensing threats sending letters and collecting money the has actually now done a study and they concluded on october sixth that's not what's happening that the lower end of the the stratum what we probably think of as the patent trolls are actually only making money if they file lawsuits they have an interest in bringing lawsuits quickly and there was something you said about a license in the patent tris want to make another thing clear if somebody buys a patent from a from a predecessor their background by the predecessors licenses that's part of the law so the patent company buying a pattern the wants you want they're bound by prior licenses and they're bound by the actions of their i was thinking of the examples in the dell brief which undoubtedly you've read yes and that's that of that those are the examples in my mind are one of them was going to stop a case was decided on a stop a latches was and that's a scary one of them with the first one which i guess is their poster child i think that at the district court level there was only ten months of damages issued because the that the entity which bought the pa waited so long and they were only going to get a reasonable realty for ten months the case was decided on summary judgment on invalidity what you won't see in the cases are when you do westlaw searching is a lot of cases that actually get the sided on lachie case what's not been said here are two things to other areas of law the other thing is that the reality is that there aren't there aren't there's a lot of litigation over latches what happens in the real world in the trenches is that a plaintiff files a complaint for patent infringement the plaintiff seeks back damages the defendant is pretty much back out and the file an answer claiming latches why because the federal circuit has said under its presumptions that well just can apply at any time and if pleased by a presumption after six years so every case you have answers filed all the time in patent cases with latches the plaintiff then says ok i've got a defense i have to deal with it they send it in iraq a tour they say what you're prejudiced defendant usually says prejudices i expanded my business the pla says well you probably would have done that anyway which is what happened in this court and then we have to go off and have a trial on that issue and most of the time this case is the exception those trials take place after the trial in front of the jury but there's a tremendous amount of discovery in this case there were fifteen deposition excerpts submitted with summary judgment but there are very few decisions that actually reach a conclusion that latches is a political and if you search for cases when section two eighty two codified defense is applicable in any patent action it did so against the backdrop of a decade's moral consensus that latches isn't available to ginsburg that a stop will dies that is it is a defendant specific defense just as the stop will which all concede is an on in force ability defense and for that matter if we can just cast our memory i  misrepresentation to the patent office justice ginsburg in the forty six years since this court decided blonder tongue we've become accustomed to the principle of non mutual offensive collateral estoppel that is that permits a party that wasn't a party to the prior suit to raise defenses that were successfully waged against another party that principle did not exist in  two there was non mutuality for all of these equitable defenses that are concededly covered by on enforceability including patent misuse and inequitable conduct which your honor was referring to that is on in force ability as all of the cases recognized and we've cited this court's opinions and lower court opinions applied to equitable defenses none of which were an equitable equitable a stoppel or in equitable conduct or patent misuse or prosecution latches that defense was not established and had to be litigated a new by the defendant in the second third and fourth think that there is a there is a literal mountain of cases every single case that was decided in any court at any level from eight hundred ninety seven when the six year damages cap was put into place until today with the exception of one district court decision in massachusetts which demonstrably misapplied the two authorities that it every single case has recognized that pat that that latches was a defense in an appropriate case to claims for damages and no case has ever said or suggested to the contrary and so therefore the work that mountain of cases were in equity right well the in equity and in law there were law cases that were applied and without it where your mountain becomes a molehill right i mean the the cases in which latches was applied at law were in significant certainly not enough to support a consensus that congress could be understood to have adopted for the simple reason that that as you point out actions were brought in equity because you could get both an injunction and damage that's right as was sought for example in this case and almost every case that is it's a little hard to talk about this mountain if they're all equity cases well i don't i don't think so but let me let me take my let me take my run at the mountain of your question as you point out almost all of the cases ninety eight percent according to professor lemley were brought on the equity side and there they don't even have an argument that latches wasn't available as a defen to claims for damages which could be sought in equity courts beginning in eight hundred seventy and there are plenty of cases showing that now there were as your honor suggests that some cases if i just may finish there were some cases that were brought out law usually where the patent had expired and no equitable no injunctive relief could be sought we have cited the court to those decisions that have considered the question every single one of those decisions that consider the question and there are not many there are the ford cases the seventh circuit cases i think are the ones that were available before the merger in law and equity the point is whether it's a mountain or a molehill the case is all went in that direction and whether the petitioner thinks that those board cases were wrongly decided or not they were the law and after one nine hundred thirty you would you would concede that if you're just looking at those four cases that's not enough of a consensus well accepted consensus that congress could consider to have adopted cases well i don't think that when congress was was and acting the fifty two law they were damages that law and there is a statute of limitations the statute of limitations is what congress order not just like it was in the old days when you went into will return to respond to complete my previous answer but justice ginsburg the stale whether or not you think that section what is now section two eighty six is a statute of limitations or not and it does notably does not run from the time of knowledge and in actionable knowledge on y klatches and the copyright statute of limitations the fact is that con unlike in the copyright context the one nine hundred fifty two congress was not creating a statute of limitations of sort or even amending it it was simply continuing a provision that was put in place by the way in the equity provision of the revised statutes i limitation excuse me it is a it is a limitation on the damages you can only recover damages for six years out of the eighteen year patent term but the point i'm trying to make and identify make no other point please let me not be misunderstood here congress in one nine hundred fifty two simply continued in hacking the statute that had existed on the books since it was put on the equity side in eight hundred ninety seven and there were whether it is a mountain a mole hill or a mesa all of the ok never mind i'll just stick with mountain or that i mean i don't think i hope i live long enough to have another case where i can come to court and say all of the case law that decide that examine this question all of which was adjudicating the applicability of latches to claims of damages alongside the six year damages limitation provision all of them recognize that latches existed comfortably alongside that provision and there's nothing really anomalous about that justice ginsburg the very same thing occurs for example in title seven where there is a statute of limitations you've got to bring your claim within one hundred eighty days or three hundred days but there is also a damages limitation that says you can only get two years of back pay and the fact of the matter is the question is what was what did congress think that it was either codified and if you accept are two eighty two argument or what it was interpreted what to eighty six that what became two eighty six meant it looked back and it could find nothing in the case law and there are nine circuits mr chief justice three never considered the question i'm circuits that by one nine hundred fifty two and i think for that matter by one nine hundred forty six and one nine hundred thirty eight had all recognized that latches was an applicable defense in those instances in which it was proven for claims of damages and other forms of relief whether the claims came up on the last side or fact i don't see a big difference between the way the statute of limitations were and the way that happened i think you invite the trial i told i completely adopt your articulation justice ginsburg the two act and the answer is a resoundingly unquestionable yes there is no court with the exception of one district judge in massachusetts who ever even questioned whether whether the case was brought at law or in equity prior to one thousand thirty eight latches was an available defense and to the extent mr chief justice that that distinction still mattered in one nine hundred fifty two we have the authoritative treat latches maybe interposed in an action at law and so what was congress to understand the rule was either when it codified on in force ability as a defense or when it continued section two eighty six in the law as it had been there for fifty five years and the answer was looking at the case law looking at what that mr what mr federico was drafting for the committee and for congress looking at the authoritative treatise writer and i'm not aware of any contemporary treatises that even suggest otherwise that yes latches co exists with the section two eighty six remedy  doesn't apply in many contexts some of which are rehearsed in justice briar's dissent in the patrol a case but in any event even if there were even if the patent law were the only case and i've cited title seven as another example but even if patent law were the only case the fact of the matter is that what at this as this court has explained repeatedly including as recently as the halo decision this term of last year and this year congress was attempting to retain and reflect patent law as it existed not some general maxim that might apply in another context and in this case whatever force the general that if congress wanted to make an exception for patent law or wanted to continue the exception that existed as a result of that preexisting practice the congress actually would have said so i think not in a context in which are where congress is not enacting something new it's simply continuing the eight hundred ninety seven six year limitation against a backdrop of uniform case law uniform treatise writers  the legislative history of senator mccain or in making one of the four amendments in the patent act be on enforceability to include in what became section two eighty two and a cognate provision in the damages i can't remember what the relevant language and i'll read brief we have to amend this to include on enforceability because there are doctrines that are reported in the cases and these are all equitable doctrines including latches that prevent the recovery of damages when even if a patent is determined to be valid and infringed and that's why he explained there also had to be an amendment in what became section two eighty four so that it didn't simply apply damages to patents that were valid and infringed but only in cases in which the plaintiffs isn't otherwise in type that the problem with that argument that you're making yes since we don't know what they had and not there's nothing to show us directly what they had in mind other than what they spoke and they spoke about the traditional conditions like patent misuse and the other things that are specif so i still don't see in the history where the people who were drafted at the time not two years later time later really were thinking of  you are correct that in amending the statute to include an on imports ability defense and again i want to reiterate that even if you don't think on enforceability applies to the litany of equitable defenses that had long since been imported into substantive patent law on both sides even if you don't agree with that you still have to interpret two eighty six which they claim is the bar to the application of latches against a backdrop of uniform very substantial case law from every circuit that considered the question that recognized that latches was in fact such a defense but you don't get very far with on that because  know how do and port something that's not stated by congress in any way what is stated by congress and this court has accepted repeatedly is that congress in one nine hundred fifty two intended to retain and reflect patent law the patent law latches case law as it intended to retain and reflect patent law in general and there are i mean if i gave you the example for example to justice sotomayor is question is were the you know an express intent to include latches i gave the example of the doctrine of equivalence there are many many other doctrines that were continued and that this court has found work continues weak point in your argument is all most of those prior cases were were equity cases but the weak points weakened because most of those equity cases after eight hundred ninety seven were under provisions that had a statute of limitations and the reason it didn't have lack afraid of and i think i might have been well wrong to be afraid of that movie in part by the dell brief i was afraid that a person with a patent or the transferee of that in year too i would have told the a licensee go right ahead go ahead or not said anything when he could have or something like that that would have given rise to latch that licensee would have spent billions on technology that is very hard to change justice and then the new year eighteen this person now the t patent sues him and he is going to get six years worth of profits and nothing to ducted now they have told me that's totally wrong just cause what you would have done is going back to your to figured out a reasonable rate of return and that's what it would have gotten so i still a little worried that he brings the same lawsuit nineteen years nineteen your twenty years thereafter and thereby really fixes this guy who has in fact invested four billion dollars on the old technology but i want to give you a chance thank you justice prior to the dell brief is one of a dozen briefs that addresses the very significant consequences to extending patroller to the very very different statutory and commercial context the case the industry as a whole across the board is so clear that patchett that latches should apply and continue to apply that to the intellectual property owners association the group that represents people against justice fryers question of what is the economic consequences other than paying a reasonable royalty let's assume somebody wakes so here nineteen they're only going to get a reasonable rule and see from year fourteen or by math this current year thirteen to nineteen what else what's the other economic loss well that economical of course we're now just talking about retrospective damages and as this court explained enough and the prejudice is substantial to defeat all to forms of remedy but the prejudice here is that unlike in the copyright area where congress as as as two whole roman numerals of this majorities opinion and patrol explains there were many many signals otherwise in the way that the copyright law is contrived constructed that congress was knowledgeably and intentionally assuming and accepting that case that claims would be brought years and years after the fact that would limit the damage is to only those net profits for three years out of the hundred plus years of the copyright life in this case we're talking about six years of age twenty really more like seventeen years and we're talking about instances recounted in the amica sprees in which defendants are locked in and they're not just defendants in copyright law the difference in order to be a defendant you have to copy you have to know that you are copying something and copyright law doesn't apply to third parties or people who use it or make non just respond briefly to those two well i don't know how often latches is asserted or not asserted there it is true that it is not often found to have been satisfied i mean the latch the existence of  latches as a defense to damages and then i will get to the economic harm part was so settled that i mean that's the reason why this court has never addressed it was so settled that in this very case in which the plaintiffs latches applied to damages was so on exceptional that it simply wasn't defended now on the monetary damages you have a circumstance you can say oh yes you know perhaps the appropriate remedy is reasonable royalty although reasonable royalty is the floor it's damages not less than reasonable royall than a reasonable royalty but it's being applied against not just people who make war selbie invention but people who use the invention like any of us with respect to devices that have chips that can't be marked and against people who had no idea that they were necessarily infringing a patent th petitioners own a miki make the point of how difficult it is to know even if you know of a patent by the eye of the claims will be construed or whether we will be you'll be ascertained to have in fact in rindge that particular part the part i'm success now you say the difference with copyright is that the people there involved are really locked in that those are your words locked in i want to say respect locked in so what why does that make a difference well because in the copyright context since in order to even commit the toward of copyright infringement you have to know your copying and you can always choose some other form of expression in the patent doctrine where it is it is strict liability where independent invention is not a defense there are many many opportunities recounted in the amakosa briefs in which there's every opportunity to design around a particular patent claim and locked it and you it relevant that you can't change it's relevant you can't change because at the point that the later point in which the plaintiffs who own reasonably and without excuse comes into your substantial prejudice and the of the plaintiffs or another measure of damages and the judge instructs the jury that as a safeguard the floor is not less than a reasonable royalty in other words the judge instructs the jury in accordance with the provisions of section two eighty four but the point here is i mean i get in i you keep saying and whatever is and it is certainly true that sentence in the event that there is a statute of limitations whether you call the eight hundred ninety seven provision one or not what is one to make of a latches depends the case law and the commentators answered that question pollution at least for the one nine hundred fifty two congress thank you thank you counsel mr black you have four minutes remaining i have five minutes thank you patent law is a  important branch of the law but it is just a branch and this court's precedents as the trunk and the roots and this court's precedent were very clear before nine hundred fifty two and homework  forty six u s vs mac nine hundred thirty five warm and one thousand nine hundred four that latches cannot bar damages within the period of a federal statute of limitations on the equity side of the court latches could bar claim it was almost treated like a jurisdictional issue and i was sure in copyright as well as in patent because the way the equity courts worked if you wanted to seek injunctive relief you went to equity if you only wanted to seek a monetary remedy you could not go to the equity court at some of the root case and make it accounting was not an acceptable basis for equity jurisdiction so plaintiffs would go to the equity court they would seek an injunction and then they would have to get as additional remedy if they survive the liability phase and the latches findings they would then go on to go to see a special master to deal with an accounting and accounting of the profits that was the remedy on the equity side they've got a statistic in their brief about damages in equity cases but they were very rarely awarded because the real candle was discouraging the opponents profits just as in copyright law it's not available in patent law the number of damages cases if you really want to look at it have to look at all the cases on the last side because those were always about damages and a small fraction of which is special master awarded on the equity side damages rather than the accounting for profit congress abolished that provision in one thousand nine hundred six because it was unworkable the legislative history of that act reads like bleak house it was a horrible procedure which frustrated the parties it which they described as in terms of justice delayed is justice denied and they abolished that so it was in front of congress in one nine hundred fifty two or three things this court's precedent that said that latches could not be used to bar legal relief you the merger of law and equity in one nine hundred thirty eight which scrambled all the eggs you had the one nine hundred forty six lanham act which also went through the committee on patents and copyrights where they explicitly included the word  and you had the abolition of the remedy the parties have been seeking as the primary means of monetary relief in patent law for sixty years there's no way that you can look at that that fact and get around it by pointing to a book a treatise which by the way does not have a section in it on a force ability mr beck i take it that mr waxman's principle point is that what separates out the patent context is that latches was operate and true in equity but with a statute of limitations and that that just wasn't true in other places that congress was used to the notion that latches would operate with a statute of limitations and place so what's your response to that latches could bar the suit in equity by and then the plaintiff was out of court but not on the last side on the last side damages were available to the plaintive there was an overall there was an overall requirement in section two eighty six and then the three seven version which was this called a statue limitations of said no matter what if you're in law if you're in equity you cannot get damages more than six years before sue but what happened in the equity courts is the courts would take a look at whether or not the plaintiff had clean enough hands to continue pursuing the case and if they'd waited too long the equity courts had that power which was granted to them back at common law one common law back in england and they exercise the power to say you know what equity is not going to help you because you waited too long not to on the last side now my opponent says there weren't any cases on the last side but part of the reason for that is you couldn't plead lachesis in a case of the law you could even plead it prior to two seventy four b which i think was one nine hundred nineteen and courts got all that was a beginning a merger and courts got a little confused and you have cases like bank which just got it wrong but courts did not consider lachesis in cases of law because they couldn't it would have been like pleading contributory negligence in a contract case just wasn't a recognized the facts but when we look at this court's precedents it was very clear latches cannot bar legal relief the trial  as a tremendous benefit to it it has a very cruel clear rule of decision that the sides of this case and any others that might come before the court on the nature of lachaise we look to the nature of the remedy in modern litigation not to the vagaries of