it had a century to primary goals the first goal was to ensure that a successful and delage an applicant for a patent would receive a patent term of no less than seventeen years the away matching it up with the statute well first of all your honor and the length of the delay the amount of the adjustment or the period of adjustment is distinct from the period of the four words periods delay overlap there's certainly no ambiguity and i don't think there's any disagreement among the pardons that overlap isn't the problem right you're not saying overlap are you well yes we are and i think when yes because things can overlap in different ways for example you can have and you can say that there's a seminar that is going to be held in june and that seminar or address issues a b and c another seminar will be held in november and it will address issues b c and d there's no overlap in a chronological sense but there's certainly overlap in the content of the summers and so far as they would both be addressing issues pinpointed time in which to begin to measure what it is you're talking about i have to confess that having read your brief with some care and having read the other side  was totally confused about this whole thing because each of you came up with a hypothetical show or why the others interpretation couldn't possibly be right because it comes out with strange results i finally figured out what the problem was and the problem was you are off focusing on the results rather than the statute and it seems to me that if you just begin with the statute and end with the statute i know that arguable position but let's try it just for the moment here's what's puzzling me about the government's position in this case i can't fund the government reading of that is to say if you could have written that that would you have been happy with a statute that said something more like there is a conflict or a need for adjustment the patent office should look at each of those three categories a b and c and take the one that is the greatest amount because it's reasonable to one that's the greatest that may come out with a by the patent office its interpretation here the second goal that congress had was to avoid overlap because it understood you know it was reasonable to presume that if you've gotten a delay for example at the that started the peten term extension provisions we're dealing with and of course there was a significant trade off here that the generic drug companies got a very significant concomitant benefit that was sponsored to be of equal power or at least given to the research drug companies well first are you reading this statutory has the legislative history right is what i'm asking you're on to the idea in all of these is to give some to one side of the equation and give something to the other it strikes a balance and i think that raises an important point here there's been discussion in the apple leaves brief  about that suggesting that the way this provision is worded was somehow intended to penalize the patent office or that somehow the patent office has an institutional stake in having pat really essentially takes the greater of a or b why anyone have an a or b if if congress really wanted to it cheap your goal why wouldn't they just say here are the delayed circumstances and you adjustments but as legislative history shows it put in the b adjustment for good measure to take count of delays that couldn't be ten pointed to a particular reason and that gets me back to where hardly seems that they were forcing you to make a choice between either a or b right or they would have said so as i think rather playing it was saying a little earlier well first of all there are there aren't to be delays the way the statute is work and congress's intent was to provide for a term of no less than seventeen years but also to prove that the sort of double counting for delays the edges to keep talking in terms of issued seven months after the third year which would be forty three at the forty three month place the agency assumed quite reasonably that that six month delay or earlier in the examination process had some cause and effect relationship to push back the altman issuance of the patent rather than along the way somewhere there was another month in my hypothetical there was an extra month of  that can't be pinpointed to some particular advantage in the examination process the way the aid delays are going to see delays are was an extra month for whatever reason people were on vacation they didn't the building was burned down and they had to there were additional delays for whatever reason i under that scenario and under the agency's interpretation there is an overlap of when to start thinking about adding in a b to let namely a month thirty six if the patent hasn't been issued and that triggers the consideration of the b to let the language and b also tell you how much to use the just with the people it tells you how much to tell g d amount of the adjustment it says nothing about when that delay occurred and whether there was an overlap with other delays such as an june two thousand and four explanatory statement in the federal register is that the entire period during which the application is pending a back and look from the filing date which is what most of the other provisions in this part of the statu into the statute itself rather than discussing the statute in fact i'd like to put the case into context because we're here today because the patent office appealed the district court's proper determination that this is the p t o it misapplied  spoken to this issue and i can address the questions that the patent office has raised about what is the purported ambiguities in the statute but it seems to me that your honors already have looked  express delegation of congressional authority to make these types of rules and they're not they don't have the authority to make they're limited to procedural guidelines that you think they're limited to procedural guidelines and they're is within the that grant of power and to address that i don't think we have to i don't think that there is a bright line rule as to what constitutes procedural versus substantive but if we look at the importance of the property right that's being deprived of my client and other panties here undoubtedly this is a substantive taking of then my client and all patents he's ave no recourse there's no other place to go and the case is that the at offices cited in support of what constitutes perceived wrong for example cooper it was an optional interparty is procedure you could always go to the court to get relief here there is no place to go if the court says that their application of the statute is correct then we simply are deprived  term as are many other panties with no recourse a variant on that answer might have been to say that the difference between the case that the worse you guessed it is one in which the patent  has the opportunity to either comply or not comply with the thirty day who will take whatever penalty the crews whereas under the rule adopted here by the p t o the patentee has nothing they can opportunity for the n t to avoid it is that your argument that is in a nutshell my argument and just to illustrate that point the district court when it looked at once if before section three which is the section of the statute that deals with the authority that's given to the patent office to implement procedural regulations he said you look at the authority arguably may have been broader authority to determine what constitutes the circumstances of applicants to and said well maybe they had broader authority there but the fact that they may have been given broader authority there makes it very clear that that was the only instance where they were even given remotely broader authority and if you look at the statute although they may have said yes p t o you can determine what constitutes the circumstances of applicants the way congress still put in are the guidelines as to what constitutes app and still a they put in the specifics if the applicant is one month late on doing this one doing that so you can give them free rein they gave them guidance so how likely is it that they gave them in a single line of one hundred fifty four or these three which is the line that is relied on by the patent office that they gave them as overarching authority the chairman what constitutes the delay that's going to be restored to the patent term so i think that that dichotomy in one hundred forty three actually illustrates the point that they don't have the three that they're claiming they have you go back and tell us what you think the statute means what the statute means is exactly would says it's separate guarantees and we take issue with the patent offices saying that it wasn't what was congress intent well the gantry converted this country to a twenty year patent term not a seventeen year and term so that the whole premise that this was all about seventeen years  term that's history we have a twenty year patent term now so there is as district court noted they didn't guarantee a seventeen year patent term they could have easily written statute the does that what is titled simplification of patent term adjustment and what they're advocating here is a rule that applicants not entitled to any patent terms just meant unless the patent office fails to issue it in three years the very simple statute that they're trying to force this very complex statute that's congress put into place to make separate guarantees the first of which is prompt p action and just to turn to i'm sorry if i answered your question that the patent office said that we implied that this somehow the statute was the punish but there is a guarantee of pump prompt p t o action here and there was definitely there has been a perception it's being discussed now about how the patent office has only pendency that so  had an ma in the cost of the money the value of money and was trying to put in some sort since it tory inflationary factor and that's a very subtle argument isn't it no but i do think that congress recognized that there was a need to move patent prosecution along and in some industries industries to actually get a patent out as quickly as possible there's a there are that doesn't that doesn't  that's not necessarily true because clearly congress would have anticipated a situation like that because even under the patent offices interpretation of the statute ok if you haven't a delay and let's say that you are file and same day issue three years later one has been a delay the other doesn't have a need to like even under the this is interpretation statute the first applicant who had that a delay will get that extra couple of months at the end so the interpretation that's in compliance with the plain language statute statute very very detailed but very straightforward as to how delays are to be calculated and locally every bit  absolutely it's a value for somebody right would you a look at the statute in the limitation section in the paragraph a where it says the period of beneath adjustment granted under this subsection shall not exceed the actual number of days the issue of the pen the issuance of the patent was delayed out as that language affects your interpretation first of all the statute tells you how to calculate the actual number of days that the application is that it can exceed the number of days the issuance was delayed but the only way that term has any meaning is by following the calculation passed was because the examiner was doing a very thorough file prior art search and had come up with a really good first office action that was a first office action allowance you had a two month a delay but you actually got your misstate deadline you do the required action that is a delay period of the way you add them together subject only to the overlap provision and that's the number you get it at the time it didn't come up it wasn't among the comments that were generated during that war making it didn't appear until several years later when be delays first came into being and other question is whether or not there is statutory authority for the agency to render the interpretation that it has and that authority is in the provision the specific provision that was included in this statute the one fifty four based three a provision that directs the director of the patent office to issue regulations establishing the procedures not only for the application of patent term adjustments but also for the determination  all you do could you answer my question first i'd rather have your answer than my colleagues thank you but i think i forgot your question i think that why did congress put the word procedure in if it didn't intend to limit s well i guess i would say that it does limit the authority i think what congress was getting at it was giving the agency something different from the authority that's in section to be the general rule making a pretty procedures for the conduct of the p t o proceedings it's in to be congress was obviously aware that that provision is is elsewhere in the patent act and it decided that for purposes of making these determinations and the rest of one fifty four b three talks about you know and directs the director to make these determinations in accordance with the procedures and regulations that it's established so clearly come congress contemplated that  the agency was going to have to do more than just add up some numbers statue to begin talks about how much of an adjustment you get for a given type of delay and that's the one day one day adjustment but what the statute doesn't do and again this goes back to the ambiguity issue it doesn't tell p t o how to make that comp calculation it doesn't in closing i think the patent offices interpretation here is the only interpretation that accomplishes both of congress goals namely a patent term of no less than seventeen years for