of a drug patent, and chose to permit it. Although arguably Title 21 and Title 35 are not laws on the "same subject," we note that during Congress' deliberations on the 1962 amendments to the FDCA, it considered the relation

ship and interaction of the patent laws with the drug laws. See S. Rep. No. 1744, 87th. Cong., 2d Sess., reprinted in 1962 U.S. Code Cong. & Ad. News 2884, 29112915.

It is the role of Congress to maximize public welfare through legislation. Congress is well aware of the economic and societal problems which the parties debate here, and has before it legislation with respect to these issues. See H.R. 3605, 98th Cong., 1st Sess. (1983) ("Drug Price Competition Act of 1983") (amending 21 U.S.C. § 355(b) to allow faster marketing of new generic drugs equivalent to approved new drugs); S. 1306, 98th Cong., 1st Sess. (1983) ("Patent Term Restoration Act of 1983") (amending 35 U.S.C. § 155 to add to the patent grant a period of time equivalent to that lost due to regulatory delay), Cong. Rec. S. 6863 (daily ed. May 17, 1983), 26 Pat. Trademark & Copyright J. (BNA) 87-88 (May 26, 1983). No matter how persuasive the policy arguments are for or against these proposed bills, this court is not the proper forum in which to debate them. Where Congress has the clear power to enact legislation, our role is only to in

:

terpret and apply that legislation.

"It is not our job

to apply laws that have not yet been written."

Sony Corp.

Universal City Studios, Inc., 52 U.S.L.W.

4090, 4100, 220 USPQ 665, 684 (U.S. Jan. 17, 1984) (No.

81-1687). We will not rewrite the patent laws here.

IV

The district court refused to grant a permanent injunction against Bolar because it believed the law did not require that it find infringement of the '053 patent. Since we hold that there is infringement, Roche is entitled to a remedy. We are not in a position, however, to decide the form of that remedy.

Roche requested us, at first, to remand this case to the district court with instructions to enter a permanent injunction against infringement by Bolar. After the main briefs were filed, but before oral argument, the '053 patent expired. This case is not moot, however, because although the initially requested order no longer is necessary, other remedies can be fashioned to give Roche relief against Bolar's past infringement. Roche requests, for example, an order to confiscate and destroy the data which Bolar has generated during its infringing activity, citing, Pfizer, Inc. v. International Rectifier Corp., 217 USPQ 157 (C.D. Cal. 1982) (granting an injunction of that

nature to remedy infringement done in. contempt of a court

The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

Section 283, by its terms, clearly makes the issuance of an injunction discretionary: the court "may grant" relief "in accordance with the principles of equity." The trial court thus has considerable discretion in determining whether the facts of a situation require it to issue an injunction. The scope of relief, therefore, is not for US to decide at the first instance, nor is this the time or place for a discourse on the "principles of equity.".

Whether an injunction should issue in this case, and of what form it should take, certainly depends on the equities of the case. Bolar, Roche, and amici Pharmaceutical Manufacturers Association and Generic Pharmaceutical Industry Association, each detail the "catastrophic" effect our decision for either party will have on the American public health system. It is true that it "is a principle of general application that courts, and especially courts of equity; may appropriately withhold their aid

where the plaintiff is using the right asserted contrary Suppiger Co.,

v.

to the public interesi," Horton Salt Co. 314 U.S. 428, 492 (1941), reh'g denied, 315 U.S. 826 (1942). Since "the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief in these cases," Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944), rev'g Brown v. Hecht Co., 137 F.2d 689 (D.C. Cir. 1943), we remand this case to the district court for further proceedings to consider what this interest is and what measures it calls

for.

us.

There are other aspects here that might make a tribunal reluctant to select, within the scope of its discretion, relief along the harsher side of the possible scale. The case clearly was regarded by both sides as a test. The good faith with which Bolar acted is undisputed, at least before Bolar says it did nothing clandestine, but notified Roche what it was going to do at all times before doing it, so Roche could act promptly to defend what it believed to be its rights. The case may be unlike Pfizer, Inc., supra, in that Bolar scrupulously obeyed all court orders while they were in effect, or SO it says, whereas in Pfizer, Inc., the infringer acted in defiance of court decrees. The destruction of material in Pfizer, Inc., was ordered after everything milder had

proved useless. lf other measures can be made sufficient, one might well be reluctant to order destruction of the - records of research and tests that may embody information that would contribute to the health and happiness of the human race. All this is, of course, for the district judge to consider So far as he finds the factual predi

cates established.

The actual infringing acts are said to have all occurred in the relatively brief period between vacation of the lower court's restraining order and the expiration of the patent. Counsel for Roche was candid in explaining that he pushed so hard for the harsh relief he did because he thought any money damages would have to be nominal. The correctness of this belief has not been briefed or argued, and we hesitate to state a firm position, but tentatively, at least, we are skeptical. It is clear that the economic injury to Roche is, or is threatened to be, substantial, even though the amount of material used in the tests was small. If the patent law precludes substantial damages, there exists a strange gap in the panoply (in its proper meaning, a suit of armor) of protection the patent statutes place around an aggrieved and injured patentee. The district judge, before getting into the issue of equitable relief, must determine if he can deal with the case by adequate money damages. If he can, the predicate for