our decision in for any us you have to look to the finality of the judgment and the judgment in the i p r that would either allow or disallow the claim isn't final possibility of your securing these claims outside this proceeding then wouldn't it be right to say that there is no practical difference for  conclusive and to any possibility of your getting these claims because they would have been conclusively determined to be invalid on the other hand if we said the board o and so the practical difference between a firm and and dismissing the i p r proceeding in your case would be none that's what i'm trying to understand if what i just said is right i think i understand  question rather than the can't can an amendment be considered at this point at all is there any other circumstance whether reissue or reexamined were initially exam in which the patent office issues a claim for the st time with out possibility of considering and invalidity ground if it never happens in any other portion of p t o practice well your honor i mean i guess i would push back a little bit i'm not aware of anything but i push back a little bit in that you know these are untested claim anticipation perhaps right that's right there are so that was the purpose of offering this amended language so what does it matter if you have a claim that's not obvious or not indefinite but the district court has already declared everything in the patent to  may please court good morning your honor i think i'll start just real quickly with the patentability issue i know that there was a lot of questions today about the movements issue but because of how the questioning ended up on time and i just want to agree that your friend on the other side has to convince us that the case is not moot number one number two that the board o'malley i would say yes as to the st two questions so in or in other words in order for you in a lock to win anything here they have to convince you both that the board was not entitled to consider section one hundred and one for these newly proposed and never exam defense for section one hundred and one dollars that's that's where that rd point comes up and we think that is completely off the table they were given many opportunities to defend these claims on the merits right up until the oral hearing when they were asked during the hearing do process and we know that from the language of three hundred and sixteen dollars the one b where it mentions substituting claims but that does not mean it's necessarily a contingent process which is what opposing counsel said the fact that it's a substitute claim doesn't mean you've got to wait till the end to substitute your claim you can file a motion to substitute a claim in the middle of a proceeding and at that point that amendment would be considered in that proceed say that your are two separate grounds for trying to you know give an affirmative answer to the the lucas question would effectively make amendments impossible because the non contingent one one would be too late in your view in which case there's no such thing as an amendment tell me what's wrong with what i just said so i think the problem with that understanding your honor is that what we have here is we have the district court invalidity decision and discourse affirm it's about so if we take that off the table which i don't think your hypothetical considered why why why would it matter if the original claim disappears because it's disclaimed or has been adjudicated finally decision is the close of the i p r i accept that you could request a reconsideration of that decision but that is sort of the end of the proceeding that's what the final decision are in the i p r and we laid this is the same thing you just said which is it is after the final written decision that then hey you know there is a certificate that says what claims continue to exist and  the individual claims or substitute claims get issues right right and then he and so typically years a year or more later because you don't issue it until appellate review is done and then you it doesn't mean at that point that the st claim is gone and so it sort of in a weird way triggers a stoffel making all amendments essentially impossible that the reason why the amendment here became moot the motion to amend is not only that it was and the contingent nature of the motion to amend here is is significant in this case they didn't file a motion during the proceeding and they didn't as sas recognized change what was involved in the proceeding i'm sorry what do you mean  didn't file a motion during the proceedings they filed the motion under the rules many many many months before the final written decision your honor i i think i would disagree with that what they follow what's the date in motion and what's the date of the to mean something other than the three panel members concluding it along the way toward the process of writing a single decision that addresses both the original claims and the motion appendix to mean issues a final written decision which is not ordinarily what i would think signed to mean the common sense is if you in the course of considering everything in front of you disagree with our can sort of you know pull back the curtain and sort of examine what is going on in the heads of the judges at the peak have i mean the operative event a question is what's in the pleading the pleading says if you disagree with our major contention that the original claims are valid then please consider the alternative claims why isn't that a garden variety alternative inconsistent pleading recognized under relate to the civil  and you know i'd only comment well your honor i guess i would just maintain that that finding when you have a three judge panel does not become effective until they actually reach their decision and the only statutory really matter whether it was contention or not i mean you're contingency argument has more to do with whether the board has has found all the claims invalid and i think that judge from still has a has a good point you can have alternative arguments that are made in a pleading but in this case whether it was contention or not it didn't become fine all before the district court decision became final decision still hasn't happened because we're here on appeal right now that was the facts which are your honor is getting at yes ok just to double check on the timing of the district court's decision on one hundred and one was months identified but our decision didn't become final until tell after the final written decision in this case about a week later that's right and because of that and because of that decision  this is the only way for them to get this claim as far as i know and if they got it based on the reasons that they're arguing they will be the st patent to use in our system since the early part of the th century we switched to an examination system that will have obtained new on colleague from the department of justice jeffrey sandberg and we believe that the best reading of the statute permits the board to consider the eligibility has amended claims to the extent that this court has questions about chevron step to that doesn't provide any limitations as to what we can consider motions to on that end and the fact that this court and nike idea as you know kind of provides a complete answer to you know locks argument about why the observation sandberg we didn't really talk anything about her talk about the children issue and i i know that mr kelly might have opinions on that but if you want to just say something for sixty seconds will  might want to start with judge toronto's question i don't know the answer that you're on i can try to scrabble for but i want to kind of my time too much i'm sorry i don't know i don't believe there's any continuation pending but i don't know  thank you ok i just want to briefly talk about the ambiguity which the p t o council talked about and just i don't want to get into the details of it but the just really touch upon