argument this morning is fourteen eleven twenty two benefit funding systems versus advanced america mr griffith when are you r whether thirty five u s c section one hundred one is specified in part two of title thirty five as a condition of patentability the defendant do not dispute that it is not court could avoid the finding the issue was to find that as he did the first time they filed a motion to stay denied the motion to stay there were other reasons that the state could be denied but in order to grant it none of the factors i don't understand stay couldn't he just say it's possible it's not likely they're going to go one way or the other that's his job that granting of stay the whole stay analysis is based on something some stuff that's kind of not crystal clear that as to the labor of all hypothetical there may be some other basis for district court staying proceedings wall the district court waits to find out how the court of appeals are going to rule on an issue but here the court's last day was only granted under section eighteen of the a so that's the that's the provision that matters for the purpose of the spill he didn't he didn't grant the stay on the basis of some inherent authority or some other at the court at a place you may not be familiar with that's ok the government moved to dismiss of her lack of jurisdiction and saying you don't have any authority over this case whatsoever which sounds like your arguments there's another case on appeal to the federal circuit addressing that same question and instead of resolving whether it has jurisdiction to even address the case the district courts the court but a claim that i'm going to say because my viewing work is going to decide issue i'm not going to go ahead and decide it now even though they made the court may not have jurisdiction or nor did they consider the case at all isn't that exactly that what your what your situation is here you're saying the p t o has no authority that the district court granted the stay only pursuant to the state provisions of the i a e a as they applied to be c b m review and so it's our position that nobody argues that there are some inherent forty or below you don't understand that c m c gave to my hypothetical two and i guess i'm not clear on that i mean you look at the factors in the statute whether it will simplify the issues the fact is the district court is supposed to look at wow how does that o to decide whether they can do it and then for us to decide whether the p t o has to do it you keep saying the statutes unambiguous but it may not be well your honor the issue is though that the if you have to apply the four factors  factor test with would have had to look at ways and one of the factors is it could simplify the litigation and if the result of this other litigation and i think the case pending before us about whether the p t o can do it once we decide it's go simplify the litigation at least for that question if they rule for us if we rule for the position here have the gating the district court of up to lift the stay if not then he can continue to say why doesn't that doctor cover the situation where your hon litigation i understand that your honor that the calculus does change after the petition has been granted but i believe the issue is that if originally the possible simple cation of the issue was did not weigh in favor of a stay in the district or gave all these other reasons would have to consider all sorts of other invalidity arguments witness memories and things like that if you found all those factors weighed against a stay at first the fact that the p t a be granted a petition we already do they disregarded that statute that says you can't consider best mode and went ahead and started ranting petitions for c v review on the base the failure to comply with this most requirement it's our position when it's clear that it's not authorized they say that it's been treated as you're saying the same thing that you're saying that the district court had an obligation to determine the p p o s authority in a case where it's not even his role to do that and it's already pending before only been involved in your case at least in the case of coming up from them they'll be a party and they can be given an opportunity to address the scope of their view and your honor to be clear that we're not asking we never asked the district court judge to tell the p to have they couldn't do what they were and they please the court matthew dowd and i will present argument on behalf of all the defendants appellate is today now i do want to address the specific points that my colleague mr griffith raised but first i do want  fact that our position is the issue that being decided today is not the question of the p t o s authority but it's whether the four factors have been adequately weighed within one of those four factors within the first is the issue about the scope of the board's authority under c p m review but importantly that's only one issue within even that first factor and so my opponent relies solely on one issue within one factor as well accept that hypothetically if we were to assume that it was crystal clear or that somebody or you know that the board did not the past board did not have authority to review one on one case then that would go to whether or not the judge would state the case right on the news there's nothing to be gained if ultimately they didn't have the authority to do with doing this no basis really to state the case there is to judge first i agree with you for the most that there may not be a basis to state the case or to take the c m review if it's absolutely crystal clear it is in the statute but this goes to the point that the pellets haven't raised or disputed the fact that judge starr found now that isn't controlling of course but it goes to the simplification of the issues can i ask you something this may be able to come off but it seems to me there is once in the area which even if they don't have jurisdiction it would streamline the procedure and that is if they found for your friend in peta if they affirm the patent rights because that would help the district court i think your five would probably be clued ed from raising the one on one issue before the district court and at that point they're not going to stark recognize obviously we hope that we prevail before the board we think we will prevail but nonetheless if we do not prevail and that means that the one hundred one issue will no longer be within the district court education because we'll be precluded under the ai from raising that issue that you could have before your time runs out we didn't talk to your friend about this but it was all over the briefs which is what standard of review is the appropriate standard of review and context can and you know one might say it really doesn't matter if not the result but if we were to conclude that did noble is the appropriate standard to apply here how could we do that and doesn't that isn't that problematic if  standard they should weigh in we say the same thing that the price is that maybe you can tell me how that happened exactly well i think it happens right because they've only raised what they have claimed is a purely legal issue in our brief we explain that although we don't think every issue that's brought up on appeal from a stay under section eighteen should be dane overview in this case and it is a legal issue and so it should be they know all the factual issues all the factual find judge starr made in granting the stay my colleague and the appellate have waited they have presented no arguments in either of their produce to challenge any of those findings and so regardless of the whatever standard determine right and that that's one way to interpret it judge jury and i honestly don't know if any other statute that congress has ever passed was french it is there's not any legislative history and there's a couple of that because it seems like the focus is not whether or not i need to know but i guess i keep going back to the phrase that precedes that the statutory provision which is the really there is nothing about me view and then they question what's really happening here is a collateral attack on the p t o s decision about the scope of authority and although the appellant's below and before does start they didn't formally ask judge starr to prevent the board from proceeding forward that's essentially what they were asking judge starr to conclude this attack this collateral attack as some it is analogous to situations where you see a party court after final judgment and this might be under federal civil procedure sixty four which says that you can get relief from a judgment if the judgment is void in other words if the deciding court had no jurisdiction what's clear in those cases however is that you cannot establish the judgment void just by clear just by showing that the judgment was there drones where you have to establish is that there was a quote total want of jurisdiction or that there was quote a lack of an arguable basis for a jurisdiction that's the only time a later court will collaterally grant you relief from an earlier decision where there  no jurisdiction that's an analogous to the situation we have here where the appellant's are saying that judge start cannot let this case be stayed because it's clear on the face of the statute that there is no jurisdiction there is some ambiguity about the scope of authority and in such a situation the dish a court is free to defer to the decision of the agency now but that's not what we come down to a difficult i think th judge starts decision but you have to review it in the context of what i'm referring to that will sixty before standard you have to only overturn his decision if there is a total want of jurisdiction by the agency and in this case the evidence in the legislative history that separates instruction is absolutely clear and i would like to point you to just for the merits of that discussion i would like to point to two things i know we haven't really focused on the statute itself and the language and our point is that conditions of patentability as used by congress clearly included section one hundred one for several reasons at that time we had supreme court precedent this court is obligated to follow the supreme court's interpretation even if that interpretation is dicta so that's the understanding that congress had wanted to use that term conditions of patentability as specified in part two in addition to that you see clues that distinguish between that phrase one or two and one or three versus conditions of patentability now what my colleague wants this court and wanted judge starts to conclude with that conditions of patentability that phrase as specified in part two was limited to sections one zero two and one hundred three but we see both in section eighteen itself and in other parts of the a i a's that congress distinguished between those two phrases and used them differently and if i could point the court to section three eleven b c and just to be clear because your time is right and you're you're suggesting i think you're not asking us to resolve that issue just just possibly as a matter of law get to the merits this is support for our position but more importantly i think from this court's review you have to review whether judge stark's conclusion was reasonable he never decided yes or no whether the board has authority and part he didn't decide that because the appellant told him he did not have to decide that but more importantly if you look at those few statutes and this goes to the scope of what can be brought under an i p r versus a p g or i p r it is covered by three eleven b when congress drafted that position congress specifically called out any ground raised under quote section one hundred two and one or three but when it came to the section porkpie g r i z which also controls the scope of c two section one and three are all part of part two and so our point is even if this panel and this court wants to get to the ultimate merits and want to do the textual analysis of congress it's clear that they distinguish between a phrase that includes additional basis for review other than one or two and one for you have one twelve you have two fifty one and so the fact that congress refer broadly to something more than one to one of three to me is not dispositive the other thing to note is that congress  the titles of some of these relevant statutes of the time that it has passed they have mended the title of section one zero two and maintains the title condition dependability if they wanted it to cover something other than those two sections that have conditions of patent though in the title and the only two sections that have both the word conditions and patentability in them they could have done at that time they clearly knew they were amending titles here and there and they did as to the collateral courts and the federal circuit to review that institution since they were concerned about having to do a mini trial on the merits of the validity state here you don't have to you don't have to know anything about the patent issue in the case to decide the issue we're asking the court to decide so all those policy reasons for not permitting of those circumstances just saw applied here and more importantly at the beginning before the court in that case even got to their concerns the policies stated under the statutory scheme district courts have no role in reviewing the p determination regarding the patentability of claims that are subject to c b s proceedings and so our point here is that these claims are subject to be in proceedings because not a proper basis for cd interview so i don't believe the virtual ability has anything to foreclose of the right to make a decision one of the thing i'd like to note is my colleague claims that we somehow waived any argument as to the factual findings made by judge talking of the factors we