earlier argument next in case eleven thousand eight hundred and one peter versus nand clint's mr stewart thank you mr chief justice and may it please the court an unsuccessful patent applicant may seek judicial review through either a direct appeal to the federal circuit under is whether there was expenses include money that the p t o spends to employ lawyers and paralegals who assist with the agency's defense of the suit for three principal reasons the answer to that question is yes st the term expenses on ambiguously encompasses costs and comes as money paid to employee use or other personnel to accomplish in on a particular task and unlike the term cost which has a similarly broad common meaning this court has not construed the term expenses as a legal term of art with a more limited scope nd requiring patent applicants who file suit under section one hundred and forty five dollars to pay personnel expenses of the p consistent with the overall statutory scheme congress has directed the p t o to charge fees that are sufficient to cover its aggregate operating costs including personnel expenses and the p t o has developed the schedules that in a rough and ready way require applicants who cause the agency to incur greater expenses to pay more in the way of fees and section one hundred and forty five dollars applicants put the p t o to a particular expenses and it's therefore consistent with the logic of the statute to require them to pay more and rd it's especially appropriate to require section one hundred and forty five dollars plaintiffs to pay the p t o as personal expenses because section one hundred and forty one dollars is available as an simply on the basis of the word expenses we're not aware of any and unless you include the trademark analog to this provision and presumably the government's position on those two dollars statutes will rise or fall together or frankly not aware of any other federal statute that uses the term expenses standing alone that is as is your honor's question suggestion when congress has provided for shifting of expenses it typically makes clear that it intends to  provide for payment of attorney's fees in the course of doing that but sometimes it says expenses including attorneys fees sometimes expenses and attorney's fees how about to the losing party others other statutes that provide for vaccine act and that was an unusual situation there are also statutes that provide discretion to award attorneys fees without specifying that the person who receives the fee is must obtain some degree of litigation success and in that context the the court has construed those discretionary provisions as requiring a degree of litigation of success but i'd say a couple of things about that as involves called it a radical departure to do otherwise well it would be in the context of ordinary fee shifting provisions and i think this is an important point that if you ask is it unusual is a departure from the norm either to require a an adverse litigant to pay the government government's personnel expenses or to require the prevailing party to pay the answer is if you compare it to other adversarial litigation involving the government yes it is unusual if you compare it to other stages of the patent application process it's not unusual at all and so the p t o charges particular fees for application an examination those fees that the p t o doesn't try to find t process it's determined that it would be administered awfully overly cumbersome to say to each applicant you must pay in precise proportion to the work that you make the p t o do but in a sort of rough and ready way it's tried to create a scenario in which applicants who cause the p t o to pay to incur a greater expenses must pay more so if your proposed patent has an unusually large number of claims you both have to pay a larger fee if you seek continued examination or if you file an administrative appeal to the p tab you have to pay additional fees and none of that is contention on how the application is ultimately disposed of and so if your application is turned down by the examiner and you file an appeal to the patent trial an appeal board the p tab and the p tab says yes you're right the examiner missed the boat completely you are entitled to your patent you get a favorable disposition but you still have to pay the  cancel your you're an interpretation of expenses includes attorneys fees you you argue in this case is there anything that would inhibit the government from suggesting that other forms of overhead might also be allocated to litigants the electric bill the sewage bill all the things that are required in order to be able to litigate these cases well the statute refers to expenses all of the proceedings and so we would have to show the requisite connection well you've never had a lawyer here right who works for the government anyway it's not like you went out and hired where so you're allocating some personnel expenses to this proceeding what would prohibit the government from allocating other expenses to this proceeding well it's it's certainly true that for some bookkeeping purposes when we talk about personnel expenses we will include what i think is referred to as a fully burdened rate right we're talking not just about the salary but to some additional increments of that are the go along with hiring nothing in other words i had a fully burden rate would include this other form of overhead that we're talking about i guess the point i would make is we do that in the application process already ok so you're already doing this we're doing that in the application process in the sense that we are under a congressional mandate to collect fees that in the aggregate are sufficient to cover that is helpful to know that you're already doing this and it's been one hundred and seventy years is that weren't doing it you of violating it because it is mandatory i wouldn't i wouldn't say that we were violating the statute that is this this is somewhat analogous to what the court often refers to as a mandatory claim processing rule as opposed to a jurisdictional requirement so for instance statutes of limitations are often phrased in terms of no shoot shoot shall be filed more than three years after the violation occur but everybody understands that even though the statute is phrased in mandatory terms the defendant can waive or forfeit the limitations defense by failing to raise it at the appropriate moment and nobody would say that the defendant violates the statute by failing to a certain limitations defense that it could have asserted so i think we would have to say that for that one hundred and seventy year period we were for growing a source of income that we were entitle to get you started by saying that  statute torrie term expenses and in big us lee covers attorney's fees so two questions on that st the cases seem to suggest that there's something of a clear statement rule in this area that has to explicitly expressly cover fees and to to all the statutes that seem to satisfy that refer to attorneys attorneys fees or fees and not the term expenses so which part of that do you disagree with what the court has made clear that even though a relatively clear indication of congressional intent is necessary there's no magic words requirement and the point i was making about expenses being an ambiguous is that there is no ordinary plain language understanding of the word expenses that doesn't encompass the money that you use to hire a person to accomplish a particular task and sometimes in situations like this where congress has used expansive general language the court has said the failure to specify particular items doesn't indicate ambiguity it indicates breath that congress could have i think that would be true if there weren't some kind of clear statement backdrop to this my question is you agree there is something of a clear statement requirement is that correct that's correct it is and we don't go ahead and it does not mean you're dropping your argument in your initial brief that the american rule doesn't apply to this kind of case because in you brief you don't make any mention of that and here in responding to justice kavanagh's questions and in your st two minutes you also don't make that argument again have you effectively dropped that argument so we're now within the american rule of presumption we would certainly acknowledge that if this sentence didn't appear in section one hundred and forty five dollars at all we would meet we would not be able to recoup personal expenses now the th circuit held that because the section one hundred and five mandate applies without regard to the ultimate outcome of the litigation if the american rule doesn't apply and we think the federal circuit for circuit was right at least to the extent of saying the absent not only the absence of a prevailing party requirement but the specific mandate that the expenses be paid regardless of the outcome of the proceedings is a good indication that this provision is trying to accomplish something very different from what an ordinary fee shipping provision is intended to accomplish and so you can conclude on that basis the american rule doesn't apply or you can conclude this is one of the context will factors that lead you to the conclusion that personal expenses are encompassed in are you going are you going to send the respondent a bill for your time today  we are not and i think that there really three different potential obstacles to our claiming i mean criminal share of my salary the st is that the p t o has even in the most recent years has saw only expenses of p t o personnel not of department of justice lawyers who is a system who have assisted in the representation of section one hundred and forty five suit i think that's based on the idea this is a provision that is intended to help in making the p t o a self financing agency it compliments the requirement that the p t o collect fees to cover its own operating expenses not that of other agencies there's a separate question also about whether  from that fact that congress intended only the trial stage of the section one hundred and five dollars proceedings the thing that was distinctive to a section one hundred and forty five dollars suit to be subject to this mandate and the rd thing is that even in the trial with respect to the trial court proceedings in this case the p t o didn't state recoupment of expenses for attorney time spent arguing about the fees it it requested recruitment of expenses only for the i think they are in the argument as simply as a matter of plain language no one would doubt that the money paid excuse me the money paid to p t o personnel in the course of the suit were part of the expenses that the p t o incurred and the only question is whether the term expenses like the term cost has acquired a status as a legal term of art that has a legal meaning narrower than its common meaning and the court has never used the term in that way indeed in elucidating the term cos the court has sometimes said as intended gucci cos has an ordinary meaning that synonymous with expenses but for purposes of federal cautioning statute it has a more narrow meaning that the other thing i'd say about costs is that when the court says that the word cost is a term of art it has a limited meaning the court has a source of law to look to to see whether a particular items are or are not costs it looks to twenty eight u s c eight hundred and twenty one and twenty eight u s c nine hundred and twenty and so when the court says we are going to depart from the ordinary meaning of costs it doesn't have to make things up it has a source of law to determine what there are so i don't want to cut you off whereas here i think nan quest has really given no guidance as to what it thinks the term expenses means other than it doesn't include attorney's fees but we can't fault mapquest for that because there really is no alternative source for determining what the government decides to pay for all these expenses now it doesn't make much sense anymore it have this group back then in ninety nine he goes back to the st system all right so if it were just the one system or the other i could make a lot rule but we have someone in some of the other so what should i put use that to put weight on the fact nobody ever thought of this before well as i say i think this was an argument that could have been made for an extended period of time and we don't have a good the p t o a self funded agency an agency whose receipts were equivalent to zero readiness it already is you're paying from the fees meaning the time you're attributing to the attorney and the paralegals is already being paid without these fees the patent application fee itself is covering you haven't had a shortfall well the p t o is under a congressional mandate giving me a problem here because in the long delay because i couldn't have said would you want me to save for over well over one hundred years well the mandate to pay the i think it was the whole of the expenses of the proceeding under the original of statute the mandate was there all along and it was part of congress that objective that the p t o beast all financing now for a prolonged period of time the way that congress went about that was that for the most part congress was determining the amount of the fees for particular services and it was trying to set for us at a level that would as closely as possible match up with p t o expenses often there was a shortfall in an appropriation would be dated to fill the gap in two thousand and eleven congress essential made it the has responsibility to balance the books it put the p t o under a mandate to make sure that your aggregate receipts equal your aggregate expenditures and once that responsibility was placed upon the agency the agency felt  certainly trying as much as possible how do i where do i look for that i'm not sure whether you would look for to do that but even in the eight hundred and thirty dollars at thirty six dollars out the statute said that fees that are paid into the treasury fees for services will be placed in a fun to be known as a patent as the patent fund to be used for the salaries of the officers and clerks and other expenses of the agency and this is due it to you the federal  would be a downer if we don't and i think that the peak we don't dispute that and i think the p t o was motivation here is really more one of equity then of financial necessity that is it is certainly true that the number of section one forty five dollars suits is small enough that if the the applicant was not required to pay p t o personnel expenses those could be allocated among all the hundreds of thousands of patent applicants and none of them would  would pay a very small amount i think the p t o is motivation really is in this case for example we saw about one hundred and eleven one thousand dollars in combined personal expenses and expert witness fees it was a little under eighty thousand for the lawyers and paralegals a little over thirty thousand dollars for the expert witnesses and the p t o tells me that that the fee application an examination fee for the typical patent application is about th three hundred dollars so here we are dealing with a situation in which the section one hundred and forty five suit caused us to incur about thirty times the expenses that would ordinarily tend that would ordinarily be the and examination and it's one dollar thing for the p t o to say we're not going to fine tune this absolutely we're going to accept the idea that some applicants will pay a little bit more some applicants will pay a little bit less than their fair share of our operating expenses but when we have this congressional mandate and when we have a situation where by filing suit under section one hundred and forty five dollars you've caused the p t o to incur thirty times the expenses that go with a typical patent examination it seems f and appropriate to make the applicant pay and again part of our fairness argument is that section one hundred and forty one dollars is available it provides exactly the time same type of judicial review that is ordinarily the only mode of judicial review bailable to somebody who's aggrieved by federal agency action and so the applicant who doesn't believe it either doesn't want to pay the expenses or doesn't believe that its chances of success will be enhanced by filing suit in district court certainly affect the trademark statute and you know basically our pitch in the search you are a petition was even though they are technically different statutes our position would stand or fall together we're not aware of any other statute that uses the term expenses standing alone in this content and then in terms of your overall purpose argument congress wanted it to be a self sustaining agency but what sense does it make to think that congress wanted the winning party to turn around and pay the government's legal fees given how unusual that is why would congress have thought to do it that way as i guess what i'm asking i guess i guess the two reasons are common sense the very beginning in the st iteration of the statute and acted in eight hundred and thirty nine specifically said whether the decision is in its favor or not in the trademark statute couldn't continues to include that language and even if you interpreted the term expenses very restrictive lee as limited to cost under eight hundred and twenty one one thousand nine hundred and twenty eight is no more usual to require the winning party to pay the other party's costs than for the winning party to have to pay the losing parties attorney's fees and so interpret ing the seven dollars the costs are obviously of far far smaller amounts that they are that is that that's correct but so usual but not to the degree it doesn't have the same practical effects but again the the point i would make and i think this is in a sense our primary point is you should the court has described the section one hundred and five suit as a continuation of the examination process and there is language in the statute to that effect if it it says that the applicant shall pay all the expenses of the proceeding rather than the plaintiff and so the applicant continues to retain that status throughout the lawsuit it says that the court can a judge that the applicant is entitled to a patent and so when you look to see this unusual or not you should compare it not just to other adversarial litigation involving the government you should compare it to other stages of the patent application process and as i've said at every other stage your obligation to pay fees depends in part on how much work you're making the p t o do but it doesn't depend at all on the ultimate outcome of the process and so if you file a successful p tab appeal and persuade the p t o that the examiner got it wrong you still have to pay the fee is for the p to have appeal even though in a sense you could say that's requiring the winning party to pay if i mailed for the balance of my time certain centuries nd the government is our game for a radical departure from the american rule it is arguing that when a private party sues the government for its improper actions th that private party must pay for the government's or tourney's even if the government and its attorneys are flatly wrong  and this response to some of the questions from the justices that were put to the government today there are three thousand two hundred and seventy four dollars federal statutory provisions that use the word expenses without any reference to attorneys fees or council fees some of those provisions are open and it as is the case here the government can point to not a one of those other provisions to say that the word expenses includes our turn e s p s save for the two exceptions radical exceptions it is arguing here and i would invite questions from the court why why isn't this just like the filing fee in other words the applicant can take the normal appeal to the court of appeals but if he or she wants to go through the much more elaborate proceeding of trying the case bringing in new evidence they have to pay a fine i mean in some agencies i don't remember from long ago the filing fee for a particular proceeding before the i c c was one hundred thousand dollars because they figured most of the people were going to be doing this it's going to be corporations or can afford it and we you know they're putting this out to a significant extent why i gather he will be it would be problematic in your case if they said ok you can go to district court but if you're going to do this unusual proceeding you know if you have three claims that's going to be fifteen thousand dollars if you have six it's going to be thirty thousand dollars are going to you know the words a significant filing fee for the very purpose of doing what the statute  seems to contemplate st this is not a filing fee it's a claim for attorney's fees against a strong backdrop of the american role nd this is not inside the patent office this is that for serial litigation this is where a private party says the government made a mistake and i private party i am going to sue the government in the united states district court and once it's adversarial litigation there can be no doubt that the american rule applies with its full force and in fact over the last two centuries is there any language short of saying the answer the question is you know that either the words attorneys fees counsel fees reasonable compensation for services of a lawyer for a bankrupt a state which was true in t there would be words that would be specific and explicit to refer to justice kavanagh's point where baker botts this court made clear that to have an exception because of  statute under the american rule it must be specific and explicit and well before that in the alyeska case of a decision by this court was to the same effect as well as other decisions well i presume that if congress ruled a provision that says that the pro rata share of all the services it's personal that would be enough because you would exclude lawyers from that if congress had a specific provision that showed it was intending to include lawyers congress has the authority to enact such legislation but as in the your exact example i would say there would still be an ambiguity because the american rule and let me give you an example from history three years before of what we now call section one hundred and forty five there was a statute an act by congress with respect to the expenses of the patent office it was an appropriations statu and congress said we have need five new positions we have the commissioner of patents we have a chief examining clerk we have another examining clerk and we have two other clerks and congress said we need to pay for their salaries and said these are expenses of the office note three years later when section one hundred and forty five was st inactive the language was different in several respects the language is all the expenses of the proceeding as distinct from the expenses of the patent office which it was addressing three year input mr q are you saying that expenses of the office is not enough to get you lawyers fees suppose it was just expenses of the patent office which would presumably give you the expenses you know the the the costs of person does that not include lawyers yes i am saying under this backdrop of the american rule this court has made clear congress needs to enact a statute that is specific and explicit it basically has to say lawyers or words to that effect yes but what is words to that effect mean counsel compensation for legal counsel for advice whatever in other words we use the word fees alone i do not believe the word fees alone would cover it because fees can refer to many many other things docket fees marshall fees filing fees fees of other personnel perhaps but not attorneys f impose on the person who invokes that pretty travel expenses lodging expenses parking expenses expenses with respect to court reporters printing expenses marshall fees docket fees court interpreters that's not an exhaustive list but it does not include attorney's  expert i do not think it should include expert witness fees whether they are internal experts or external experts but i want to know for the court in this particular instance for practical reasons now inquest did not challenge the government's requests for expert witness fees and they were pay then you put your finger on yes the american rule yes yes yes but we have a special kind of case and congress was saying it seemed and says again look personally your evidence to the patent office and you don't like the result go to the federal circuit if you want a nd bite you forgot to bring in somebody or you didn't and then they'll have to bring in people and before you know it you have the rigged expense here expert and sure enough you're saying no don't cover those not very discouraging if they want to discourage you from using one hundred and forty five i mean  separate special thing here or do we just use the american rule yeah i know what you're going to say that's the trouble and i'm the one who's puzzled by it if i if i look statute this court has always applied the american rule either the general rule each party bears your own attorney's fees or the part of the american rule that says if there's a specific and explicit statutory exception that can apply and the government points to no exception the government points to no case decided by this court involving a claim for fees under a statute situation here is it it's a question of whether you pay or other people who are not involved in this litigation at all pay maybe it's only going to be a one dollar sixty cents but still other people are paying those expenses doesn't that make that different from the american rule i would state the rule differently than your honor the american rule doesn't apply to expenses generally the american rule applies to a claim for attorney period well miss me ask something that's related maybe it's the same thing just as a matter of fairness why should these other people pay for the cost that you have caused the problem office to incur if we were congress and we're not congress could decide what it thinks that's fair or wise or good public policy but is this court has said in alyeska and baker and botts no matter how good the policy might be this court does not have the roving authority to make those decisions it is up to congress who did so could you tell me what the difference is between expenses and costs we have a whole statutory system of costs yes i believe some of the items that you mentioned earlier as being expenses are not covered under the traditional sense give me a definition of expenses does as you understand it yes let me do this in two parts st and eight hundred and thirty nine what did expenses mean the bouvier cost that could be awarded to the prevailing party to the same a fact or to other legal definitions from legal dictionaries both before and meaning of cos has taken on a term of art in federal litigation and there are certain things that are considered to be costs and other things not to be cost but overall i think any litigator today in federal court would say the word expenses floating by itself alone is probably a broader term than costs is is  this you might have looked up and it might help me actually and help you or not but but did you find any in any area where an agency say has proceeded a long path one hundred and fifty years and then suddenly changes its mind and says now we're going to go on path two and the court i do said oh well that makes no difference whatsoever or the court said no it's too late now we take into account the way you've carried this out we nothing no no case no instance where an agency has done anything like that even for considerably shorter periods of time or did you find some shorter period of time the court said we're going to follow your habit we're not going to follow going into a deep this deep difficult statutory analysis with an old statute it's good enough for you it's good enough for us anything like that not for any period of time i can give you an example but it's a relatively short period of time this cake this court decided the adams fruit case the labor department was dealing with the statute passed by congress that gave workers under certain circumstances a private right of suit and the labor took partment said aha we have the ability to interpret that statute and we should get deferen and it interpreted the statute to mean that the workers couldn't sue in federal court they had to go through state law procedures and the question that came up to this court it was a shove run question should this court defer to the agency's interpretation of the statute and this court said no this is a trick to show matter this isn't a matter of an agency having its own discretion so to hear this is a district court litigation where the parties are adversaries the proceeding in the patent office is quite different from that the american rule has always applied in federal court litigation i'd like to point out picking up on on justice briar's question if you have a situation where there's a statute and it's pretty evident and certain parties here would be the p t o for some period of time to not advance an interpretation of the statute that would benefit them in a period of time passes should we adopt a rule that that's strong evidence of what the statute means that it doesn't mean the thing that the interpretation that would have benefited these parties that failed to take advantage of it i would say yes in the following sense the beginning part of statutory interpretation is always plain in ordinary meaning of the language and the date of enactment there can be other factors but the over one hundred and seventy years involve scores maybe hundreds of senior patent office officials not of one of them thought that the plane an ordinary meaning of expenses in section one hundred and forty five dollars or its predecessors including attorney so that should be considered by this court and i wanted to point out just an ordinary english though expenses would encompass attorney's fees wouldn't that's mr stewart's point to the contrary it might or might not but it would ignore the american rule for two hundred years ignored the consistent case law of this court always applying the american rule including applying the american rule when in the national childhood vaccine injury act the unsuccessful petitioner under that act of congress could be awarded attorney's fees although this co use the words american rule the government's reply brief i believe that page eighteen i would say takes a position in the reply brief different from earlier positions and says in effect this court was applying the american rule you probably just looking at your resume should have experience in this patent there is a true yes ok in your experience who you're settling out of court arrear you're trying to work out a system without going into court for resolving a claimant who says this is intriguing my patent or there are all kinds of people claiming it's you set up private systems and the private systems whether it's arbitration mediation thousands of different systems involve costs is it fairly common not fairly common unheard of or what to say in the contract it's doing this for future  controversies that you bring up the controversy you pay the whole thing or maybe the opposite but what's it like i can think of no instance by my personal experience or through reading or otherwise or a contract which say you bring this up and you pay for the whole thing no matter what cloning attorneys but there certainly are agreements that are silent on attorneys fees and recognition the american role or that expressly say attorneys fees may be shifted under certain circumstances or expressly say not at all i would say what's interesting here is that congress in  time was all the expenses of the proceeding shall be paid by the apple can't come whether he shall prevail or not prevail or otherwise or words that have been so congress in airing this attorney's fees provision for section two if i were they use the word attorney's fees took out that last cl so wasn't just carelessness without worrying about the rest of the patent they were focused and focused in particular on one hundred and forty five dollars i want to point out also that the government argues that there is no other statute that would be affected we respectfully disagree the word expenses standing alone without a reference to attorneys fees in an open and fashion appears elsewhere let me give you an example property be forfeited i want to back must pay quote all the word all appears all the costs and expenses and quote it's pretty closely analogous to the statute here no party no one not the government or anyone else not an academic has ever raised the question about all the expenses in that statute includes taxpayer's property if the taxes weren't pay so the private taxpayer says i want my property back and the statute provides taxpayer you get your property packed if you pay the expenses and the unpaid tax i suppose the difference there is there is but i gather in those situations there were alternative proceedings that you could go through i do not know before the statutes whether there were were not appointed or proceedings my main point is in the those two examples one that refers to all expenses and the other that refers to they are open and you know i system want to preempting but i suspect mr stewart will say don't worry about those because those are different here you know the applicant has two different routes and if he wants to take the route that imposes more would be more costs and on the government then he should be expected to pay for it well that is their argument but that is rewriting the statute that congress actually actually enact time did the government ever try to collect attorney's fees as part of the expenses you kno remaining thank you mr chief justice i mean there were various questions concerning the legal significance of the p t o it was informally the patent offices failure to take this position over an extended period of time and there's no question this is an atmosphere  on helpful point for us but i i i i don't i don't think that it fits in in the established doctrinal category that is there are cases in which the court has said when you have a body you have court of appeals precedent that adopt a particular interpretation of a particular term and then congress rian aps the provision without changing that term then congress can be supposed to have acquiesced in or ratified the prior judicial interpretation we don't have anything like that here we don't have a body of lower court case law saying that the term expenses doesn't include personnel for expense you do have her protection through action by the agency itself over the period of one hundred and ninety years  d i mean you could you could say at the most that if you that these expenses were not recoverable is implicit in what the p t o has done or not done even with respect to the p t o it's not as though the inconsistent with the american rule that the two things i would say are it might be that part of the p t o is motivation we don't know but it's a reasonable speculation is that the p t o didn't seek these expenses in part because they wondered whether the term was sufficiently clear to overcome the american rule but on closer examination we think that it is that is now inquest has offered various examples of things that it would be covered thinks that it would be covered things that it thinks wouldn't be covered but it hasn't propounded  appointed the court to a dictionary that would include some things and not the others the other what about your this is slightly privileges i mean we say we finally figured out what   court has said in cases like united states versus file show that the implications of existing statutory provisions may be clarified by newly inactive provisions and the p t o has examined this matter afresh in of the statutory scheme and and the last thing i would want to say and it's in part a continuation of the point i was making earlier about the section one hundred and five suit being in a very meaningful sense in a legal sense a continuation of the examination process up to this point congress has directed the p t o to ensure that its aggregate input intake equals its aggregate expenses it hasn't directed the p t o to fine tune the process to ensure that each patent applicant pays his or her fair share but suppose it did suppose congress said each applicant shelp pay all the expenses of the application and examination process if the argument was made that shouldn't include a pro rate a share of the salary of the p t o examiner who worked on the case the court would say that's crazy how could how could the p t o possibly effectuate its congressional mandate to collect aggregate expat expenses in a way that equals a cost if it didn't if it didn't collect the single greatest expense that it incurs when a p t o examiner does hears of her work and similarly an appeal to the board if each patent applicant was required to pay all the expenses of the board proceeding of course that would include an increment of money that was attributable to the time spent on the case by the board judges even though those judges are lawyers no one would think that the american rule required some clearer statement than that that congress that intended the person who invoked that process to pay the extra expenses that the p by virtue of that process similar to the examiners on the patent side are typically not lawyers trademark examiners are lawyers and the work that they do an examination is there for lawyers work but nobody imagines that the american rule has anything to do with the p t o his ability to make sure that people who invoke the examination services pay their fair share of the p t o his overall expenses i think this goes back to a question that you got at the very beginning but setting attorney's fees aside could you tell us mr stewart exactly what expenses you charge for and exactly what expenses you don't i mean sometimes we have charged for travel expenses we didn't in this case i don't believe we charge for printing costs although i think we could have with respect to personnel expenses specifically we would charge for the lawyers we would charge for the legal for the paralegals in this case we had an outside expert who was kind of paid money out of the the agency's funds and we did charge for that there are other circumstances in which rather than retain an outside expert we get expertise from within the agency so it could be the patent examiner who worked on the case or it could be somebody else and we would charge a pro rata share of that person's time thank you counsel the case is submitted