have pleased the court the three topics i'd like to address today or why the plain language of the american vents act requires and in fact mandates a director to institute i p r decisions why that same plain language as the final house report to the american invents act makes clear the purpose that congress had in mind in establishing in hardy's readers wish to convert enter parties re examinations from examination of proceedings into adjudicated proceedings as the house report later says in connection with the post issuance proceedings its goal was to have these matters heard in court like proceedings now in order to do that it was unnecessary quite hungry to change the manner in which the proceedings the reexamination proceedings have been institute reexamination proceedings had been instituted in the past based on a non appealable unreviewable discretionary decision of the director through one of her executive delegates traditionally an examiner there was no need to change that in order to convert the inner party's reexamination to the airport is review and congress didn't do that congress continued to retain that aspect of the proceeding by giving the director broad discretion to decide in a non reviewable context on a feel about context the ability not only to see whether a threshold had been met but to consider a raft of other factors that are set forth in the statute to decide whether it would be appropriate or not to institute an inner party's review but of course what congress needed to do in order to convert the examination proceeding to an was it said from that point on the board shall have jurisdiction to conduct and decide these post grant reviews and that's exactly what the language of the statute if you look at the first in three sixteen which says that the patent troll on your board may conduct proceedings instituted under this chapter and again in section three eighteen language in the statute section six and in the thirty one series that is specifically restrictive in the way that you are arguing and that your argument is a kind of structural argument about what congress can contemplated the role of the two hundred on board members would be and that that role would be something different from from the role that the director may not delegate the director's authority to members of the board or to panels constituting the board and even the same panel that will decide the matter section six is jurisdictional so it says what powers the board haves and the committee report refers to it as jurisdiction all so that the director can only delegate to the board matters within the bridge jurisdiction if the word doesn't have jurisdiction to institute and it doesn't but only to conduct and sign then the director clearly cannot delegate to the to the board what an absolute joke is on the executive director can't delegate the mere fact that some part of the agency has specific functions doesn't suggest other functions can't be delegated to that part of the agency in the what case of just the only sou splaying cases which are cited read together indicate that where there expansion speaks to delegation that you can't fall back on general delegation principles well that seems to me to be a different that because the board has certain assigned functions that other assigns other functions can be assigned by delegation i think that jurisdictional statutes are always read as being limiting in the that which is expressed excludes that which is not and when you say the words duties are and that when the committee report says the jurisdiction is expanded to do these duties that by implication means if they don't expand further now if the if the director had independent juristic independent authority to delegate then that would be a different story but the only authority given to the office to conduct these types of  i don't think i quite appreciated this but that you're kind of two possible statutory arguments you're making one is about statutory provisions saying what the director can and can't do and then there's saying what the board can and can't do and at least the second point is an argument which i think just like was asking you about about when a provision that says a particular component of an agency shall do the following whether that is generally meant to be restrictive and it's a and nothing else even if it would otherwise be implicitly authorized to receive the function so so what i guess i want to try to return to is in the absence of specific cases providing presumptions about the restrictive nature of  of of duties i'm not sure why there is something inconsistent in the nature of the function which i think you were giving to suggest in describing the executive in the judicial function and so to bring this  specific question why is this not like what a district court does in deciding a preliminary injunction and then the merits well because what the district court does in that situation is entirely a judicial function they stay within their function here we have an executive discretionary unreviewable function for institution which is done by the director and has been always been done by the directors executive delegate and then we have a judicial function which is the follow up which is then the second stage of the proceeding to conduct and decide these and that's entirely judicial function and under the administrative procedure act one of the primary objective example in connection with joint or that is mentioned in legislative history i believe that's place senator kyl as to what the office had told the senator it would look into when it was trying to decide whether to join a case the year in fact there are very broad discretion there that the director can set a limit on the number that are granted the director has to promulgating regulations taking into account the economy and the efficiency of the patent system and many other things the directors also to investigate whether the same or similar arguments for prior art has already been before the office so these are all the kinds of executive discretionary functions activities who would expect from the director acting in her executive capacity or her delegate or district judges have a lot of discretion will of course that system with having this of course  you but you keep interrupting i'm sorry i'm having trouble knowing when you're finished i'll be more respectful yes they do have a lot of discretion and their settings what they do is entirely reviewable from the start to the finish of course which is a different aspect between executive discretional discretionary decisions and judicial decisions and of course in this context especially as promulgated here we have the kind of limited record we don't have a record where the patent owner has been allowed to introduce its own evidence at the institution stage so there is a limited record there are limited grounds that can be raised in the injunction is i believe it's required that the both parties be heard that those pardons are allowed to present their evidence that evidence is considered by the court we don't have that here at the institution discretionary decision not just on that evidence but on the basis of an investigation that can be wide ranging and involve factors having nothing to do with a particular matter people who are sorry i'm not following  district judge issues a temporary restraining order non reviewable essentially based on what one sided record yes so what's the matter with that nothing's the matter with  there are other safeguards in that situation where the restraining order can't last very long and you have an extremely high threshold and even then temporary restraining words of course almost all  r didn't raise this issue at all before the agency despite numerous opportunities to do so throughout the proceedings and so under this court's well stablished president particularly case in re promise to make sure whatever i can use presented to in theory is i don't understand it one examiner who would then cross the threshold to a certain amount of sorting out before it came to the tribunals them all together it is curious true we haven't really seen it in this forum before and i have to tell you it doesn't match the way i had understood the plan the purpose of setting up this extraordinary elaborate jurisdictional jurisprudential structure i hadn't meant to make a speech but if there if you can put this back in the context because we don't want to argue about the director's right to delegate the question is who does the director delegate to and in what in what context i'm sure you are just to step back  with that the history of the proceeding under that under the prior statute there was interprets reexamination which and the director in the statute give the director the authority to institute inter party three examination and also the already to conduct are pretty reexamination and under the prior scheme the director delegated both of the herd to the examiner typically to the same examiner when the american invents act came along congress purposely delegated purposely had that the board would conduct interparty three examination in order to streamline the proceedings because what was happening under the prior regime was that an examiner would make a decision and then it would be appealed to the board and it was taking too long and consuming too many resources as the legislative history shows and so congress purposely chose to have the merits determination made by the board and then the business wasn't a casual chung's this was and powerful upheaval of the structure of patent decisions because eighty percent of those are gated patents were being tossed out by the courts it looks as if there was some kind of  and that and that threshold that higher threshold was you know purposely chosen to protect patent holders and to make sure that that you know and valid challenges weren't weren't going forward but i just would like to turn  delegation issue quickly just to point out that as a kind of grieve in its reply brief at page nineteen that the director can delegate the institution decision to secretarial appointees so the only question remaining on the merits of this case is whether the director ten candidate to the board which is a specialized body within the agency that specializes in claim construction and that sort of to two parts of the argument can that delegate the board and  argument but that's in the nature of stronger and weaker arguments you don't you don't say i'm perfectly happy with the weaker one as if it would actually like to win on both arguments or actually the stronger ones would maybe not supposed to be in the same hands as the final written decision that merits but they also have another point that the structural separation within the p t o their legal challenge and so i don't think that they're raising a straight argument about the state the same panel on being assigned to but i think it points out the waiver issue here because they clearly could have raised to the board before in america terminations that should regulation that restricts what the patent owner can put it allows the person resigned to present evidence just not quote new testimony evidence and it specifically says except as authorized by the board so here again this is another situation in which i thank you i'd like to brief refer back to your question i'd like to refer back to your question about the prohibition on the words right answer to the sections of the statute i referred to section six which references chapter thirty one and chapter thirty one which in both situations both references references that the board must conduct itself pursuant to the chap to chapter thirty one and section six limit cabin the authority of the board the jurisdiction is limited there's no jurisdiction given to the board to go beyond that yet but what case is that if a part of the agency  statute that other functions cannot be delegated well there are several things under the administrative procedure x six and five fifty four d d would take well i think that they cases that underlie that would be county versus goldberg which is cited at footnote twenty four in the with roe decision where they discuss in particular limitations on any employee of an agency making a decision that reviews in essence the propriety of its own earlier decision and the challenge there is goldberg i think preceded it's not the same or different point perhaps i didn't understand your question what case says that if some part of the agency is assigned certain statutory functions that it's in permissible to delegate other functions to that sub part of the agency i think that with respect to administrative law judges whose independence is recognized under the federal statutes as for example five c thirty one zero five which precludes assignment of duties to administrative or judges that are inconsistent with their responsibilities as judges but a special statutory provision yes events and it recognizes the fact that when you're talking are you agreeing that in general the fact that part of the agency has specific functions by statute doesn't preclude delegation i that i believe that the delegation keep interrupt assignment of other functions i believe that where the statutory scheme makes it clear that the that the official or employee to whom the responsibility would be delegated is not authorized to discharge that function  that delegation would be improper the example we give in our brief is it would be improper for the for the director to delegate to the commissioner trademarks the examination of patent applications but just to be clear what we're talking about here your argument is entirely based on the statute right there's no if the statute had set up the scheme exists now there be nothing no constitutional question raised by doing well there are  adjudication and the same panel same panel yes i think that would raise consomme cost it would be unconstitutional why because i think that there is a concern given the structure that we're in the hypothetical about having the same decision makers be involved in the first phase when they did record making up a decision and then in essence reviewing the propriety of that decision in a later final merits decision i don't know that it would be unconstitutional but i believe that the cases are concerned about the risk than anyone do risk of concern that the decision makers may not meet the fair and unbiased requirements of the due process clause so to elaborate on that question and answer because i think i made clear that the i'm trying to think through the legislative constitutional on constitutional grounds we do believe that all the normal canons of statutory construction and the legislative history of those candidates of course includes the can constitutional avoidance but we don't believe that this court needs to address a constitutional question because the statutes quite clear the statutory framework is quite clear and the intent of congress is quite clear in how they director it's then to be shifted to the government itself has as argued to the square that it at point after institution the statutory responsibility for conducting and deciding shifts to the board and that's all we are that's all the court need decide is that that is indeed what the statute has in mind and i would suggest it's completely consistent with decisions like the crossbow decision and others that you have already made recognizing that this is a two stage proceeding recognizing the difference between the kinds of decisions that are made and why the institution decision is not appealable on its merits i think it's i think it's