whether thirty seven c f r forty two point seven three has been properly interpreted course you can use your time as you wish but i think that we're willing to concede jurisdiction for the purpose of this argument if it turns out th interpret this regulation that is correct and in that regard if we look at the plain language of the rule there is the first part of the rule that provides that the that no honor may elect and in this case the patent office disregarded what i considered to be the plain language of the statute which is that if there's going to be a voluntary disclaimer of the claims if and that occurs prior to trial then there should be no issue with regard to the entry of adverse judgment because the rule specifically says that when there is a voluntary disclaimer in trial that is when disclaimer takes place and the that be an appropriate interpretation of the rule given the fact that under subsection one and subsection three let's take subsection one first that if you cancel the entire patent doesn't make any difference when you do that in the proceeding in the rules pretty explicit about that that's correct your honor and in fact that i thought actually supports our position because in those instances the patent office was very specific that it could enter add and or adverse judgment or those actions would be considered an entry of adverse judgment but then when it came to the issue of voluntary disclaimer it was clear that that would only occur in the trial why would why would the penalties make a distinction between the cancellation of an entire patent which would create a struggle whether happened before or after trial and the cancellation of an individual exactly what the patent office was thinking and there's not much in history to describe that but i would submit that if you cancel the entire at and let me just say that in this case we had two i p r relating to the same accept that you could not sue this same defendant on the disclaim claims in some other proceeding is that correct your honor there would be an unstoppable of some sort as we at least between these student could be a surety against the same defendant or only against other defendants your honor from my perspective and the way i view it is that it should be the party should be free to patently well the most let's just say that the question of whether we would be able to pin those claims i submit that that's part of the i believe the regulation itself and i don't believe that it's within  kailash thirty seven sorry thirty seven point seven three b which was the provides these are the instances in which our action and the court this is all goes to the new owners own voluntary actions it doesn't go to how the patent office should rule unilaterally on our actions it goes to whether the patent owner wants to take an action and of course that permits that action to forego the issue of the i p r and if we give the board discretion to decide these issues irrespective of in the trial language that's specifically in the rule or otherwise than in a sense it's a blank check because if we're patent owners we're looking at the statues for guidance to what actions we should take that may have some consequence then we should have some understanding of what that effect will be but if it's a question of just equity it's unfair or it's not right then the problem arises that an owners when you were in district court for instance and you decided to disclaim these claims do you think that that patent office could simply issue an order canceling the p we have a petition to institute so what if there had been no even petition to institute and you had disclaimed these claims somewhere else in some other form could the patent office just decide on its own that it wants to i don't know of any place where they ever been delegated any authority to act outside the confines of an ip or and but you're saying you're not arguing that i'm not arguing that the fact of the disclaimer prior to institution i think that the issue here and and jamali brought this point up which is the patent office has delegated the authority to the board to make these determinations but the patent office cell has promulgated a regulation that on its face suggests that disclaimer by the regulations the proceeding commences with the filing of the petition that is correct your honor and that's precisely why in the trial and so much position that those claims can then being forced against the same defendant your honor there would be no stop effect and that that hypothetical is possible but i hope that the patent office would do its job and  this challenge in the first place and that's precisely why i believe the patent office gave an owners the uk you don't you want to get claims that i'm up merely distinct from the ones that are cancelled by well your honor that's correct but i would say sometime in let's just take an example since we're talking about hypotheticals there is a claim language or claim that exists and for some reason the wording isn't quite right and it says nothing about the effect of the liberty of the patent itself it says perhaps these claim should be clarified and we should have the opportunity to pick and choose the battles that we have and your honor i recognize that i have about a minute and twenty three seconds remaining and this is whether let's hear from the other side final written decision under three hundred a may appeal pursuant to one forty one one forty one so your reading of same to yes there would never be the ability to appeal from this kind of cancellation whether it occurs refer precisely to the board's decisions under three a on the merits of the institution of the into parties review after conducts the proceeding that the drug that was only in the context of considering their appeal bar in other words a final decision this action in disclaiming its claims would have resulted in the patent office making a decision that is unreviewable on the poll ninety five day that their decision to disclaim the claims can be construed as a request for to regulation or otherwise i had there are no move decisions that are for ted if this court that hold that i'm not aware of any decision that said that there are there are seven decisions that the party submitted to the board down below and that the board identified its decision three b the adverse judgment statute provides a regulation provides that a party request judgment during a proceeding a proceeding is defined in the regulation as both as beginning with a preliminary proceeding which is the once the petition filed up to the institution decision and then there's a trial which is the institution decision to the final right decision so a proceeding which is what the referee regulation is referring to is begins the moment a petition is filed so they were acting within the confines of an i p r proceeding we s which institution has occurred correct so i understand the show decision would be to distinguish claims that were where the institution claims were considered during the actual trial proceeding for claims that were never adverse judgment regulation was never mentioned by the board or the parties so there's no guidance from those cases as to how the that panel would have interpreted this regulation presenting that issue so every panel that has reviewed this regulation has reviewed in the way that smith and reposed on that those claims and all other claims that are patently indistinct from those claims and there were some reference to a second petition i claim ten eleven i just for full disclosure that condition was instituted same prior art can see speak the job of yours i will be very very brief because i have to be reached in that regard i'd like to address the issue about the authority of the board to enter voluntary or enter an adverse judgment the statute or the regulation experience clear that that authority comes from the patent office or patent owner itself because the patent owner must request or take action that could be construed as such a request we clearly did not do that here nobody disputes that we in fact stated very clearly that we are not seeking requesting an adverse judgment without that request the patent office or board did not have the authority to enter an adverse judgment i would also submit that again the timing with by the patent office is critical here because the patent office says in subjection to in the trial and in no other subject subsection of that statute is that state we are to get i think we're entitled to rely on that as a matter notice and the regulations of the patent office and i think to rule otherwise is an abuse of discretion discretion and i think that's the issue we have here your honor we have this notice it