administrative occurrences and a disappointed by a century and a half of history by profound reliance interests and by multiple deference doctrines i don't disagree with that but when you say sequencing the word that we're dealing with is before so it's that one thing happens i don't want to use the term before determining if i don't know the word one thing happens first and something else happens after that right that's correct you just press and the key is the one thing and the other thing so the case is not just about before in isolation it's about a filing coming before the patenting so it requires a determination of which of those two administrative occurrences coms first and when the t happen on the same day the statute is silent as to how to sequence them and how to understand why is which side if something has to happen before something else happens and whether it's on the same within it a date a twenty four hour period or with then a one year period it still doesn't change the fact that something happens before something else right well this is the district court's ruling if this is what you're referring to the district court itself i caught a stopwatch approach to this question and said we need a time of comparison when exactly in the real world the filing happened and why is that a wrong given the clear language because there is no ministers no means of determining those two times and i would say i would point out that each d c does not and the district courts rationale is that is i guess one of i'm understanding your point about there is no way of determining would be there could be something to determine but they're not set up to determine it i took it that your point was maybe more fundamental that this thing called filing in this thing called patenting are not objective lee identifiable physical acts they are legal converse trucks that somebody has to define so it's not just you know they can't find it because they haven't developed the you know the microscope or the clock to do it it's that these are not sings that exist apart from their deeming and definitional activity that's exactly right just trying to and that is our position there is no way in the real world you can sit with a stopwatch and observe as an empirical matter when these things happen ok if that's the case however given that the language still compels one thing happening before another then why isn't the necessary outcome for the patent office to then say ok if we are unable for whatever reason to determine the exact time then we'll have to say you file it on the day before even though that that sequence of seeing is not necessarily compelled by the statute but if it can't work out in one day why isn't the necessary fall to say ok it requires before so we'll pick the day before not and not allow the same day because we can't calculate what happens within that one day period because that's not the way congress wrote the statute the the way the h d c argues the case is as if section one twenty said the filing had to happen that on the date before the patenting and in fact we have a long string side in our reply brief of provisions of the patent act which are replete with this date of formulation that defined timing requirements visa v a date in section one twenty congress did not use that formulation it requires a comparison between two as judge fronto said purely administrative events a filing and the patenting which is a term not used anywhere else in the statute and it was silent on how to sequence them when act all continuing outpatient practice of before the fifty two act and after the fifty two act sprang from the supreme court's decision in godfrey versus ames and in god through the withdrawal and the have any final legal consequence when you move to withdraw doesn't withdraw all really come doesn't the fight well at require the board to act and approve that motion or whatever it is well i don't think it's i think that is the case now but when you when you file a petition to withdraw our petition to abandon you can actually request that be deemed to have occurred on the date of the filing of a continuation obligation again saddle consistent with this long settled practice spring from godfrey that is application practice unless it specifically made a change and called it out which it did in one respect it required that a continuation application refer to the prior application in order to be valid while the term before in the statute is pretty clear unambiguous i am having some trouble with what it meant by the terms patenting and filing and i think there is some ambiguity here you refer to those terms  and the patent offices decision on those terms as one of being just administrative but how those terms are defined and how the patent office reacts those terms has a has an actual effect on potentially on priority so it's not really simply an administrative determination it's a determination that can have some effect on on parties right absolutely judgement just like any kind of deadline can have a fax on party's rights but that doesn't mean it's not procedural and here the p t o has implemented a mailbox rule which congress authorized it to do and to deem a filing to have occurred on the date that something was dropped in an express mailbox so this is all about deeming this is all about to a certain extent a fiction of things that we are not observing in the real world with a stopwatch but we're deeming to have occurred at a certain time on a certain day and i think the government site cite citations to federal rule of procedure for a two is quite apt that rule provides that if a notice of appeal is filed after a judgment is announced before it is entered it is deemed to have been filed on the date of entry and after entry and that is exactly parallel to what the patent office has done here consistent with one hundred fifty years of practice which is that when the two events happen on the same differently that would be that when the p t o s seeks to implement section one twenty by departing from subtle historical practice this cording in re hendrickson found that that was prohibited again because congress on the finding that congress intended to adopt and codified pre nine hundred fifty two consequence of whether or not it was a valid continuation was was what was at issue in her versus of an expected to be on sale bar that the applicant patent applicant needed the benefit of the earlier so i know what it was a timing question it was it was a timing question with please the court and some until time behalf of the united states the patent office for over fifty years has reasonably understood section one twenty as meaning that when a continuing application is filed on the same day that its parent is used as a patent continuing application is understood as having been filed before the patent can i ask you a process question just about how this all works which is that in this case as i understand it the patent office issued some notice of allowance that working with in terms of when the original is an issue right sure so what happens is after the notice of allowance is issued then the applicant has to pay the fee and then after the fuse paid in typically what happens and it's roughly two weeks before the at the expected issuance the patent office after i don't know that though the rules preclude the patent office from doing that i'm also not aware that that has ever happened what i am aware has happened is happening is sometimes for one reason or another at the last minute some errors around and then issuance is delayed are so i mean i suppose which case we would presumably be avoiding most of the stuff that's right although my understanding is typically when p t o issues that notice of issuance it's extremely likely that the issuance state that p t o predicts is in fact that the that is not is this case and that my understanding we're here but if the court gets to give more deference one of the factors that we think would influence get more deference as well is the fact that a number of individuals have relied on as we also say the ninth circuit's opinion in alaska stock photography which is that when lots of individuals are relying on an agency's long standing instruction it's important for courts to account for that so you know whether you want to do it as a matter of deference or whether you want to do it as a matter of interest that you're in there in the first place either way i think it has a role to play in this case  can you remind me what your chain of reasoning is from the language of the statute to some squishiness at the agency can result absolutely so the relevant phrase understand the technical terms yes so the relevant phrase here is filed before the patent and so the key questions here are when is the continuing application filed and when is the patenting and as far as the agency is concerned when those who happen in the same day the filing is an ambiguous concept and the patenting is an ambiguous concept in p t o as reasonably understood that in those circumstances when you file a continuing obligation on the same day as pattern issuance then in fact the filing happens before the  panting and i think that the example that we cite in our brief that is in my mind a very good example of this is that the federal appellate procedure do something similar which is also what mr palmer mentioned and namely that even though you might think in a very physical sense a notice of appeal filed after a judgment is announced now before it's actually entered even though in a physical sense you might think that the notice of appeal is filed before the district court enters judgment the federal rules of appellate procedure nonetheless say that in terms of a legal matter we treat them as having been receives the document the document is filed but certain kinds of documents like recent appendices are understood as filed when they're deposited with certain kinds of mailing services and so the idea is that even the concept of a filing even if you try and understand it as a physical thing it still  question of what physical thing and and and all of the so if the if there were no common law that drop in the patent office it just got in the statute and they said we can't cast aside the warrant before so we're going to issue either regulation explain in the m p e p that before because we can't determine same day stuff because our record keeping isn't that clear we're going to say that you have to file a continuation the day before what do you think that would be entitled to deference and we should have well i  is something procedural and so whenever p t o exercised that authority p t o would be accorded different not whether or not a court would conclude that even with that deference the statute was violated i suppose is another issue but it certainly would be a procedural rule on it certainly be something purposes somebody sold a million units within the coverage of a product on a day at you know twelve zero two am of the day that  occurred that that would all be infringing what you are that's something that that is something the h t c a assumes in its brief i want to be clear that this court has never actually endorsed that understanding that the patent is in force the entire day but even even assuming that is correct in that assumption i don't think p t o s rule is inconsistent with that because even if you think for example that one is able to sue for infringement of probable one am then first of all that could be because just as a matter of remedial damages you don't you just   don't think anything about p t o interpretation would require this court in any way to undermine that assumed principle that you could sue for damages for the entire day just clarify for me briefly what what is meant  when is that certificate mail on the date of issue or is it mailed the day before so that at that he receives it on the date of issue my understanding is that it is not mailed until the date of issuance and it may even be in patenting i mean on the same date but that doesn't i guess for me at least one reason that that doesn't seem to need to get to the resolution of the issue is that it doesn't address  was the term i used before squishiness of the words that come after before patenting filing actually both of course it comes before lunch and after and it's there that i guess i'd like you to talk about why there isn't enough that case before it becomes easy you do an apples to apples comparison so if i can convince you that the patent is issued on a day and that the filing occurs on a day before needs to be measured by day but i need to convince you that both the patent being in the filing occur on the day level rather than by the hour of the moment and i think the answer to that is in the statute let's take the filing the filing the statute itself refers to a filing date section one twenty refers to a filing date we have particular statute that authorizes the p t o to accept filings and deem them as filed on the date of deposit with the united states hostess or has it always referred to as a date never by an hour or a minute application and then it turns into a patent there's no time when you're both now what fishing in a patent patent thing has to refer to issuance it's when it's no longer just an application and it's become a patent section one fifty four tells you what that is that of you know temporal before and this and filing and patenting only right and i'm why can't you know both of them survive largely because of the tradition send in your continuation application when you send in the money to get your issuance of your patent it tells you do that because you don't want to risk losing your continuation date in any event people are not entitled to thousand or thirteen thousand those are the number of patents that potentially might be affected by the issue here that's far less than one percent of all issued patterns very few people are actually relying in this sense second of all  to those particular patents only a small number of them are really going to be affected and that's because only a small number of patents are actually maintained and enforced and it would have to be a case in which there's intervening art that's going to make a difference to the result it wouldn't have been valid adopted this this is not something that congress has looked at there was no testimony before congress there's no settled judicial interpretation and we've had two district judges look at this since then and they reach different results this work because i'm to reach the issue in encyclopedia brittanica there's no settled judicial interpretation there's no longstanding regulation with force of law congress never looked at it congressman don't stay up at night reading the m p e p this is an obscure practice that really they were unaware of it always knew it for  that congress has ever looked at this particular issue i think there would be a great over extension of congressional silence and this is and this is not and i don't think the other side has pointed anything along these lines sometimes you get  in the sense that congress has done something that makes no sense if you accept on the assumption of some previous interpretation of surviving like that no such argument here so if you want i can i can turn that and again we know from work that mirror agency manuals of procedure are quote unquote beyond the chevron pale this is not basically the idea of chevron has you infer that congress  does chevron deference or the substance of equivalent of it or not apply when you start with terms filing and and patenting and say in this provision or this defending here i think this is a matter of skidmore deference not chevron difference because again chevron applies when you've got something with force of law that your congress has given the agency to regulate the forty to regulate with words of law and the agency has done so the agency has not regulated with force of law here i don't think they could but even assuming they could they happened so you really kind of going down to skidmore difference at that point i will add that the government has argued that you should be for two regulation one point seven eight events occur on the same day and the way godfrey the language got for you sure suggests that the withdrawal happened before the refiling you know or in the actually in the less than day to day granularity sense well we we got free didn't have a section one twentieth of the statute was written to kind of adopt a rule around some of the existing practice regarding godfrey but what it used was the term before the patent thing that didn't exist at that time godfrey was dealing with a situation of continuing education when you're basically getting rid of your original application today the statute refers to is abandonment or terminations of proceedings and today as then the abandonment or termination of proceedings did not occur until the p t o acted upon it withdrawal and refiling amounts to a single continuing think about what was legal of ratchet and that you have to remember what's going on is that there is one person filing two things at the same time intended to keep them all it's a continuing arbitration pending is different happening is fundamentally different because it's not one person just filing papers you've got two different entities acting you've got the applicant that's filing me up occasion and then you've got the p t o issuing the patent and that's not an ex parte procedure by the way issuing the patent has real effects on real people out there in the general public we need to know exactly what the data is the patenting data is very clear it's set in section one fifty four and it's critical to both patent use who want to run into court and two applications overlap but i guess that that concern that and or the question i guess i'm trying to explore is in godfrey one way in which the first application might have gone away and not be co pay ending is withdraw all the other is if it actually write it into an issue patent and i'm not sure why they cope pending substantive point made by godfrey should have should be different depending on which way in which way the application went  away we believe they're both are consistent with the co pendency idea because the p t o does not terminate proceedings were deem a patent to have been application to have been abandoned until the p t o looks at it and says proceedings are done continuous process here and there was always an application pending but there was the original application and there was what we now call are continuing operations the term didn't exist back then and that made sense the way it's going but here we have a different scenario we have an application going along and then it becomes a patent it is binary and so the real question comes down to do you agree with me whether the patent thing occurs on a particular day rather than at a particular moment and i submit that it does you get a notice of allowance you can still go back and not pay or if you fear or try to amend your claims because you've discovered intervening art there's nothing about the notice of allowance that constitutes patenting nor does the notification that you get that on such and such a date on august sixth two thousand  you're going to get a patent that means you're going to get a patent in order six that you got the patent and you can enforce that patent all day long that has to be the rule there's no other way to read the statute i understand that if you just read the words before the patent thing it doesn't say that before the date of the patent thing but you must construe that in light of the entire statute in the entire statute and historical practice tells you that it's always between been determined by the day not by the hour the minute or the moment there's really no other way to look at it anything else so why not here yes well it also in one twenty itself it refers to the application days or the first one and there's no reason to think the application of the second application would be judged in different units than the timing of  and in fact you know again the statute expressly for first application dates and to me that means you've got to compare apples apples and and remember i think what's going on here is emergence trying to have its cake and eat it too you either have a patent or you have an application and once you have your before the patent thing which infers that of a level it needs to be the day before and then again if there warned of what that date is they deliberately chose to file this emergency in house counsel they deliberately chose to file on that date or not before that date first if you would like i can address the summary judgment were anything else i think were right out of to invoke repeatedly u s versus locke the statute there was very different the filing had to be made before december thirty first before the date the present and i guess i do think that that the argument on the other side is something quite like what i tried to summarize everywhere in the patent act that you look and indeed elsewhere in one twenty itself time is measured in units of days so how could this  be i think that's a point for us not against us judge toronto when congress wanted to specify something happening before a date it's so expressively and here is judge lynn pointed out it instead provided that something had to happen before th file on the date before the patent thinking that we should meet some affirmative intent to not include the date and there are a different of intent not to foreclose the p t o from observing the longstanding practice history or any of that no evidence that congress considered this in one nine hundred fifty two it did the same permanently at all right well not with respective particularly to the issue that we're talking about but there is ample legislative history that congress in one thousand fifty two intended to adopt wholesale the pre nine hundred fifty two continuation application process this court has said that the legislative history says it expressly and west there is a change in there was only one change as i pointed out before and it wasn't that council talked about part of one twenty refers to the date as well right part of one twenty eight you get the benefit of the filing date of the earlier application so that's a case where congress meant to timing requirement off of a date but it didn't do so here and nothing in one fifty four when i thought that i thought it does seem to me you're right that in the law when there is a disparity in language and you're trying to figure and one of them is the odd man out in your trying to figure out what meaning to give give it sometimes you say oh but pay attention to the fact that there is a difference and there must be an  to make it different and sometimes one says we're going to treat it the same way as everything surrounding it what is the evidence i guess understanding use for closed by the statute because it didn't use this date of formulation i would suggest that the history might support that kind of argument but i don't think i have to convince you of that i'm suggesting that the absence of the date of th patenting means that congress did not foreclose longstanding historical practice it did not mean to alter it because if it had done that if it had put in that date this would be a very different case but it didn't sixty one congress has repeatedly amended section one twenty it wants reenacted it in its entirety and under this court's decision in cooper technologies and the supreme court's decision in auburn regional medical center there's no requirement that there be evidence in the record that subtle continuation practice going back to godfrey versus ames and i think the reliance interests that we have talked about are profoundly important here i think there are a few cases that present this degree of widespread spread profound very specific reliance on a rule issued by a regulator saying you can protect your intellectual property if you file on this date and tens of thousands of patents relied in good faith on that rule and as mr schultz said that there is there ample precedent for the