rides so i don't have a motion for admission to the bar i movie admissions gary am fox news a member of the bar and is in good standing with the highest court of new york i have knowledge of his credentials miss him very much he was a splendid law clerk and was meticulous and thorough very precise and clear headed in his thinking and writing u and figure out what exactly is going behind going on behind everything and he was a wonderful companion in chambers both to me and it's fellow a lot of clicks  has launched in a very promising right career and we look forward to seeing him in this court and wherever else he flies in straight decision and i believe that it is wholly within supreme court precedent that you must have a chance to challenge any proceeding that is going to be used to collaterally a stop a jury verdict under blonder tongue which reversed many many years of not allowing the issue preclude him between different party use the supreme court said although neither judges the parties nor the adversary system performs perfectly in all cases the requirement of determining whether the party against whom in a stop will is asserted had a full and fair opportunity to litigate is  law would require that the proceedings below be consistent with the constitution of the united states and this court has recently ruled that in fact under the appointments cla understand i think not quite all but most of the arguments you make are arguments for that challenge the board's final written decision and the ministerial act of cancellation that followed that you do have one argument that is not a challenge to the board decision but is a challenge to the effect of the board decision on the district court case that i guess i would tend to agree that of course you can make that argument but equally of course since as i think you agreed in the district court our current binding precedent for seventy s and all that for senate this is built on precludes us from agreeing so we have jurisdiction to hear that but we have to rule against you on the merits but it's not that we can't hear that particular no and and that's really the point i'm trying to make which is that you do have the ability to challenge the effect of this later i p r decision on is that the are threats cases held that the appointments clause was violated in the i p r that cancel the patent suit and therefore the argument that i believe still remains is are you going to give collateral stoppel effect to a perceiving that this court has held to be unconstitutional i can't challenge i'm not trying to go back and file any new claims i'm not trying to challenge the decision of the board in this proceeding i'm saying that it shouldn't be given the fact because as it says in b and b hardware a judge  the correct inquiry is whether the procedures used in the st proceeding which in this case was actually the nd proceeding were fundamentally poor cursory or unfair and i would submit that an unconstitutional proceeding is j infirm the failure to follow the procedures under matthew and eldridge that are required for construing series of episodes for example i think were fundamentally one of the issues but you could certainly argue that all of that was raised and could have been raised in the earlier proceeding and it wasn't found to be unfair then so i doubt you're going to find it is unfair now the thing that has changed is this court has held that the appointments clause was violated in the earlier i p r and that wasn't the case when we were briefing any of these issues before and clause which by the way you referred to is the portion clause in your filing to this court i apologize no your honor that's not that's not correct i also believe that under the th amendment and this court's precedent earlier precedent specifically drew us to be custom seal you cannot use a later perceiving to overturn a jury verdict under the th amendment right but that that really is an argument as i read it  your brief that challenges the the agency's decision i didn't see a separate argument that said taking the final written decision as a given and the ministerial act of cancellation that follows from it as a given that the th amendment precludes giving effect to that in the district court proceeding well make that argument on  the argument was raised a few different times that nothing that occurs after the jury verdict can possibly be a reason for overturning it because under this court's precedent in be custom seal you have to raise whatever issues you're going to raise to challenge the verdict in the preverb judgment as a matter of law there is no way that you could maybe you could argue that as a matter of law you do win under an i p r before the verdict there's no way you can make that argument because it hasn't heard yet once the jury verdict is render then you are as stopped into the th amendment and i believe under this court's decision in dura last from now raising later after the fact proceedings to try to challenge what the jury verdict whole it's and that is an argument that again is protecting verdict not challenging the administrative i believe your honor and i want to be perfectly frank i'm trying to remember all the arguments from a few years ago that we raised to the district court i believe that we argued the th amendment i believe we argued that the th amendment was violated by reexamining the jury verdict by the art you are proceeding after the fact i don't recall off the top of my head whether we cited this specific case endure a loss for that proposition is make my recollection to tell me if i'm wrong is that you did make a th amendment point and a collateral estoppel point but immediately you didn't develop the arguments he said there's really no point in developing the arguments because we agree that the existing governing precedent is against us on that so we will accept judgment as a matter of law so we argued that i mean the judge believe collateral estoppel is not appropriate however personal audio believes that current authority supports rendering the judgment in favor of the defendant c c b s so that the issue can be appealed and i book i believe that that that is i would say not the only intervening thing that has happened we also i mean it so it's not the only intervening thing i mean mr lieberman filed a letter arguments constitutional arguments that i actually got to use my pocket constitution quite a lot on this on this appeal but i think every one of the arguments to subject to three fatal flaws the st one is that no final judgment was ever entered in personal audio was favor in the district court action that was a jury verdict there were no judgments as a motion for judgment as a matter of law those were pending when the parties jointly moved that his personal audio joined and this motion to staving district court action pending the results of personal audios appeal of the final written decision of the i p r so whatever consequences flow from  that directed result of the strategic decision the personal audio made nd personal audio has waived each and every one of its currently asserted defenses by one of three methods either by not presenting them to the district court when it agreed to enter judgment for c b s by not presenting them and its early appeal earlier appeal to this court from the i p r ruling or by presenting the arguments in the earlier appeal and losing so the method to be encouraged when the party recognises that it cannot currently win in the district court there is no point in papering the issue in the district court is a different court is bound by governing precedent and we just need to go north where we might be able to get a bad precedent over here right so to answer the question in two ways the st is this court has a body of precedent regarding what constitutes a waiver and not fully articulating an argument referring to it only in passing this court as regularly described as a way of number two and this is i think a policy argument neither this court nor any other court of appeals including the supreme court i think would welcome a situation in which a party says to the court immediately below i don't think i can win on this point so i'm not going to set forth my arguments let's just go  appeal for example mr don't think i can he said basically federal circuit present locke's what i want to do so let me take this up to them and i give them why the president is wrong right so the district court was without that the for zaniest decision of the x y decision simply do not apply in this circumstance those arguments could have been made as well to the district court as to this court that is mr pitt cock and his client we're not arguing below but now on the larger issue of presenting us which is really kind of a difficult precedent and not one that i think our colleagues or you know and so on so why why do you think me address i think the central point of your honor's question which is presenting us in this case and i understand there's some disagreement among members of this court about the appropriateness of presenting us and the boundaries of that decision at least what they should and at least two members of this panel i think joined in the dissent from our petition for rehearing on bark in a case recently addressing some of those issues there are at least three and maybe more reasons why this case would be a spectacularly bad this appeal that's correct rather like how can that be when he is making an argument that a portion of our precedent should be overturned court's we don't have jurisdiction right i understand your eyes question and i think the answer is a very straightforward one which is we have a situation here in which the patent has been cancelled and it's a situation in which the pattern has been cancelled and by the way there was no final judgment from the just record much less a chance much less an affirmative of a finding of no invalidity by the federal circuit so we have the patent cancel giving the i'm sorry there is a final judgment now it just had not been i'm sorry i'm sorry you're on or is exactly correct i will try to be more more precise there was not at the time that the federal say we dismiss the appeal for lack of jurisdiction and it affirmed the district court's dismissal right so that seems more of a i don't see easing on a word that sometimes like the word jurisdiction has some what you like i have perhaps in arguing this point been treating the question as if i were answering a question on a wall street exam as an advocate i am entirely indifferent as to whether this court dismisses the appeal for lack of subject matter district jurisdiction or firms on one of the multitudinous browns in terms of sort of the subject matter jurisdiction question we've never once a panel has ruled d there's no subject matter jurisdiction according to him this court would never ever ever  opposition to the motion for entry of judgment and the determination that c b s was entitle to statutory costs the entire substantive argument with respect to the opposition to the entry of judgment is one paragraph victor alas does not cited last or not we always raise the argument and in fact i don't think there's any doubt that we raised this argument there is a question of when is it appropriate to raise an argument on  amendment on a jury verdict is it really during the appeal of the i p r or doesn't it or do we even have standing to raise those issues when we tried to raise those issues with the federal circuit on the  were ignored there was actually no ruling on any of the costs to tional issues and one could argue that they once was there the case was so you made arguments claiming there was a th amendment miley's and the no this is fine there was nothing that addressed the th amendment at all and there is some question in these i believe they could have if they thought that there wasn't standing to raise is the th amendment issue on a jury verdict when that record was in front of the court i but i believe they could have i think they could have said yes this i obviously we all states address the iranian but has not addressed the other when it comes to the reexamination clause and that's what i'm saying is this is not an issue that is clear that you can raise from the appeal of the i p r because nothing has happened yet the court hadn't entered judgment against us there had been no negative ruling against the jury verdict at that time  but you know we did believe we needed to take these issues up on appeal that's what i'm trying to do here and now this argument on draw last yes we did not make that specific case argument but we did make the argument and always have that you can't use something that occurs after the fact to do away with the jury verdict and whether it went to final judgment or one of the other issues that that has been  that's not what i'm arguing not arguing about the finality of judgements lots of times the judgments are kept from being made final anyway the sum of the minimum applies at the point where there's a jury verdict on the issue and it can only be based on the things that have occur prior to that verdict you can't reach back in time or you can't wait months later and then attack it that way because there was nothing at the common law at the time of the something amendment that would allow a later administrative attack on the jury verdict there are there in these arguments were raised even if that specific case cite was not ok we thank you for your thank you