reconstituted as penalty plus and we have two cases which will be fully argued for issue one of two zero zero seven dash one three six t we've got two cases here and they're related there's a thirty there was a thirty month day that mark took advantage of here to grow some dispute and at least one of the priests as to whether or not they were is that there was a month stay whole in the the litigation that's to continue it has been presented in the statute and has not ruled specifically that simply dismissal of the suit is sufficient and whatever well books suppose days later this is a replay for the companies to avoid to get the benefit of this without incurring any of the liability that's exactly right that was going on and maybe someone will look at this and say well that can't be what the statute me the dispute between you and the other parties what is what is the dispute over whether that's been infringement is that the issue merck has in markets for merck has told the f d a that scare and this is a pretty two thousand and three statue it was a change made that really doesn't affect me much after that because the first the files for one of the three two thousand that we worked with here's what it said and it doesn't use the word wor and they can create a climate this provision allow generics further down to rate the bottom but if i don't bring it back to what the issue in this case is in the heart of the case since we're talking about the provision it says the date of a decision of a court and this court here held no subject matter jurisdiction because what congress said was the court is going to decide it and whether the patent is invalid or not and frick so the heart of our question is not as to whether or not they had subject matter jurisdiction over this controversy right right and what is the so you agree the controversy between the parties contemplated by congress determination undermanned well what he said is there's no more controversy as to whether or not the patent is invalid or not infringed because we've got a company not to sue so therefore there's no more controversy but the problem is the compan invalid right but the court still has to have subject matter jurisdiction over a controversy which we've all just agreed it's defined exclusively as to whether or not a patent is invalid or not frick so  validity or infringement of the plan because it makes no difference in terms of the controversy if i want to mine a fact or something i'm perfectly happy if someone who holds a p let's assume hypothetically that the f d a came out tomorrow and said no third thirty months under the circumstances you would still be maintaining however that because of the hundred eighty day exclusivity in the ability to trigger that ultimately his conclusion was be that as it may it's not up to a court it's up to congress to fix the statute because the statute is clear granted congress maine you may be right this isn't what congress intended congress never contemplated problem if they don't go to market right away right if they do go to market right away then there's no problem you're not prejudiced in any way right well there's small problems ok as long but those hats but if they thought of eliminating the thirty month issue just some one hundred eighty days if the first to file whoever it is in this case goes to market right away and starts starts the clock running on the did you do know is there any way now as to as of this moment that you could go to the f d a and say would you please advise us whether you consider the thirty months today still in effect in because i think there's a decision the court requires i don't think simply i haven't read into it that will be but if that's incorporated in the court decision at that point in time in the water there would be effective to trigger the t assume that we're dealing with just one hundred a day exclusive period and i understanding this correctly that if we were to affirm this judgment what we're left with the as to the system under hatch waxman is that every pharmaceutical maybe not for the first to file but at least for others can wipe out at the ability of everyone beyond the first five are to ever get into court to challenge  actually cracked a specific provision that allows people to trick of people other than the first pilot to trigger the one hundred eighty days after the date of a decision of the court congress must have contemplated that this might actually be the first challengers i'm not sure that congress would want that to actually be subject to attacks and disappear is that in the end that has a potential discouraging or the challenges for example but let's finally realize that maybe you would be who view to give them a license to trespass so they can come on the property and crash fast without any consequences legal consequences for me however they need a permit from the interior department of mine to cope they can't get that coal permit unless they essentially establish a right to be in the property without trespassing or otherwise but they could be an issue of title to the property is that the same type of a situation here where company b would have standing answer is there would be no controversy between company a and company being in the light of the covenant not to sue over company b is right to come on the land and get  out there may be a controversy between company b and the department of the interior whether the pongo when curio would permit them to take the call out of the land but that you say is not the khans is not a controversy between the two the question is whether the possibility the likelihood that they will be delayed in getting to market as a result of the various  in the light of the covenant not to sue whether that is enough to constitute a case of controversy between the parties for purposes of the declaratory judgment is that a fair statement of what the real seems to me that that with the results that that is somewhat the tail wagging the dog but i'm going to take those in the fact that they could produce at any time based upon the government not to sue that there was no restrictions infringement but there's no real infringement and the covenant not to sue has no meaning right i mean you agree that when merck offers and gives this unilateral covenant not to sue if there's nothing to it because the person isn't on the market and indeed by offering the covenant to sue if merck is that healthier they essentially precluded the covenant just not to sue from ever having any right well then the right am i right about that the way i'm not i think what they're probably but the action at that point is not up to the determination of thirty months later isn't it up to the f d a to waive the thirty month well actually the the district court judge can order think or give them another every other purpose if that were the case they could actually find that this bottleneck may present an injury i'm not sure that i would still say the case would come out that way would give them one more argument that their hands case if i may have and even india and then there were nine bases for which the hundred maybe eighty days from congress and them unfortunately the system could be again i don't think congress ever dissipated