that new theory is not supported by it is inconsistent with the statute this court's precedent the videos on rules and several statements in the end sasha does not say that you can only get claims that are related to or forseeable from the claims you file at the two year anniversary this court's precedent has held and repeatedly held that once you put a reissue pretty squarely and all was is the statute referring to the claims themselves that have to be filed there was referring to the application and the you know there's there was a reason for debate at the time and what they did was they thought it was crystal clear from the words of the statute and from the legislative history that would you apply for an application and when you have an application on file then you can add or change those  did not for example it did not allow brown expressed it only a rather narrow it did not have a time limit for broadening it did not provide for the rights so what i think happened was the corridor began to go into that area its face and it's right there is the error and i don't think that's what this judge has been targeted the statute is similar in some ways but it was never said to cut five every single aspect of the supreme court cases and the solicitor doesn't argue for reversal of any of these cases or an entirely separation what they say is you can get some claims but they cannot be they must be related to or forseeable from the earlier claims with was this with the precise set of facts reissue application doesn't say you can only broaden claims that you have filed it says that you can obtain subject matter that you didn't claim that disclosed in the specification so to that extent the claims were related they were similar to the so they were just saying you don't need the buffers and you do not there is this court has never held or decide to contemplate that you have to have claims that are  from continuing to file new coins which or possibly one related to the first reissue application yeah i got i don't agree with that totally unrelated again they say it doesn't make it true these are totally without time to put in another broadening reissue application for an entirely different model i don't think we're arguing for that proposition i think we're pretty much this court case law as it's been to to the convention and three think of it this way there are one hundred thousand applications right now on the system one side and and you can continue them forever but then tell them to live in a regular application what this is saying is four of the issued patents there's only about a thousand or so variations if you file within two years then those claims you're pretty good on those those claims can be changed just like any of the continue any of the current says just as one twenty allows you to do for a continuation they can then be subsequently changed the the problem to p t o test in addition if you go one step further as the law is it will be totally unwork say there are and this is shown by the shifting of the legal argument from the examiner who talked about the declaration from the board who talked about the embodiments to the solicitors about talking about it for c ability and this case we never conceded and we do not concede that they're totally unrelated they are basically what they said was you can do it this way with buffers you can do it this way with offers of then you can remove the buffers and this would be no different than if they took the exact same cla hypothetical hypothetically were back in the old regime and under your grass in the other case would it have been her miscible do what is known here under those cases i don't know i think hypothetical hypothetically assumed they were under the earlier regime reflected in the one brass and those other cases would this have been permissible i don't i'm sorry if i can't as a question i mean i think you're going to ask me to do is tell take a court with a different statute one hundred years ago without this court's precedent and that's that's that's the you know i don't i don't it's not like  the facts of the case it's it's taking an old precedent with a new statute that has been interpreted for for thirty or forty different parts you can't answer my question as to how this case would come out well i think  to be fair i think that the supreme court during that time where there was not an express right to go and where there was not even being right would decide things differently than this court has recently and the way this this this the new statute own to start out we do believe the government does believe that to fifty one in one nine hundred fifty to codify of the preexisting judicial doctrine of the two you're going to have if you read the legislative history which is very short it express conjunction with two fifty two to protect intervening rights in other words if it took the whole picture that's true and did a number of things yes but specifically the two year limit your honor which was put into section two fifty one what was that too you're going for if you go back and read the original case law that led to that which was the supreme court the supreme court said what they were taking into account was when a patent is granted and somebody gives a twenty they claim certain subject matter and they don't claim other subject matter that's rs there's also expressed statements in the legislative history that say it was a code of occasion of the two year time when it set up by the prior case law which was the supreme court case law at that time and just to get back the purpose of within two years now the palace came in within two years with their initial error they discovered america they came in within two years like the statute says they got to broaden that issue as are we should and they had a continuation and there were more claims with that continuation  which had more claims germane to that same error which is distribution back then there was a third application the second continuation which the one is the one we're fighting about now in that application now there's a new where an error that they discovered almost eight say in this case you have different body moves that this is a different body that you're now drawing claims to that was never before claimed however here the embodiments were different enough that one would not have known or had noticed that from the claims that you had in that first environment would have differences the error that they discovered within two years which is what they started to prosecute and then they later brought in later claims outside the two years always in the same application those later claims the c c p a this course predecessor said those it's whether or not the air that you discovered within two years covers those claims that you later bring in which is what the board basically said and so we're still we have to look at the recent declaration and meanwhile not just the declaration because what happens is when someone files or issue application they come in with the declaration and say here's my error that i discovered promptly within two years and i want to broaden and by the way here are some claims that i want to broaden so when you look at that collectively that covers certain subject matter i can understand how you can look at different declarations of say this deliberation clearly has been part of the issue and why provide criteria are you going to use to determine whether something constitutes a different and bottom well even if it's a different bottom in your honor arguably as appellant is point out very well that in some cases the embodiments can be overlapping and they still could be related subject matter and da was a prime example of that dog was exactly that situation where you had a first what is it that you're going to go back to back with the the claims of the original patent yeah you know when you would go back to meet with in two years the initial broadening the initial error that they discovered the under claiming error that's what we're talking about here the declaration in that ad and the four in the can in conjunction with the claims that are submitted because just to be clear when somebody says it's a declaration and says i under claimed i under claimed the subject matter i want to claim it broader also they bring in claims here's the broader claims that i want to submit so when you look at that collectively that's the way if it was here today if we were arguing that if we were if it was nine hundred seventy one right now and we were arguing about the dolls which you ation i as a p p o representative would have argued against it being decided away but the p t o lost that argument we lost  seems to me that you can find support in the early supreme court cases for not being wrongly decided but i find it very difficult to find those earlier supreme court cases and the support whatever for the distinction that the board made well here's here's the way i see it here are the early supreme court cases say figure out what your error is you're under training areas within two years do it quickly don't come eight nine ten years later and come up with some new errors here there's more than one error here they did do that with their first ever they figured out their first error within two years they broadened it and that we permitted that now they've come up with another an error that they didn't even know about or didn't tell us about within two years they waited eight years to statute and we did a process of expansion carried on indefinitely without regard to website time would operate most unjustly against the public it is totally authorised by the wall in such a case even he who has rights and sleeps upon them just loses their what they're saying is you the public has a right to have some reliance on the certainty and the fixed scope of the patent when the statements are made there is no in the really right for text that's correct so it isn't there a balance think even when intervening rights were established in one thousand four you know sontag case the supreme court again still acknowledged that same exact doctrine for the bar requirement in other words there are two protections here one protection is that effectively a statutory bar if you wait longer than two years to discover your error it's been dedicated the public you can't pull it back you can't take back what you've already given to the public if you wait longer than two years that's the rule and it's you know being rights came along and sontag and yeah let's say the bottom line is they protection and well they overlap in protections but they're not identical and if if you have the right solve all the problems why would congress leave that to your bar in the statute they did because intervening race doesn't solve problems intervening rights doesn't promote prompt coming forward with your air within two years but the two years when it does that to your limits there for a reason let me ask you to go back to the untasted and you you sort of avoided using words like that they happened to stumble upon and then just keep firing continuations effectively for the whole life of the patent the path is never fixed that would completely undermine him completely contradicts the doctrine that was set up by the supreme court in the mi first bridgeport brett brass case therefore we don't think it's it's possible to construe this actually this way to permit someone to just keep firing with violent of violence and extending the the length of time in which they could broaden claims and initiate pat when talking about an application as if they point out in the continuation practice when twenty allows you to file continuations and hardly in some instances you could kind of do this if you're in the regulations that have basically said repeatedly that you can do this i don't  provision was really just to say what happened and all is ok but not what's happening here we think this goes further than all we think this is beyond what happened all and here is a newly discovered error beat years after the patent grant should not be permitted to get off situation and we know i think it has it has happened before there might be cases in the pipeline where it's potentially happening there there are two cases that i don't wear that are documented one upon his side of the buhl case where in that case he said hey you had the board actually permitted this before but if you look closely at that case it was actually later planes dropped to the same inventive subject matter which we point out was distinguishable makes it more similar to dall another case that we're aware of the examiner in the board mention in there in the trans than once but i don't know that it's happened very often i can say however i know of this case comes out and says that this construction is correct that would be an incentive for patent owners to use this as a strategy which is what we think shouldn't be allowed we think that that we're here to protect the public and that's why we made this rejection that's why the agency did this in think of it this way if this court affirms their construction of the statue tomorrow tomorrow they could go down the p t o file another continuation and  would discourage innovation because what happens here is the public then becomes deprived of the adequate notice that the issue patent provides that issue patent is supposed to provide to the public here's the scope of the property right everything else has been dedicated i'm free to use it but if you i start to believe that and put more doubt into the public's mind as well how do i know when will this be broadened later downstream because they'll be able to do it potentially for the life of the patent under this theory so in our view it actually would discourage innovation your an odd we cited in our brief as they have allowed us in the past and but it was not binding on this court so we have looked to those courts presently and it is you agree it's actually distinguishable no i mean every time they want to distinguish something they say it's related or unrelated and that was never aspects of the rules that say we can do this a and then if you look at one seventy five f it says in a continuation you actually have to file that ration with out different ever it different never it can't be the same never and that's at forty six a addendum it's one point seven five so it says you have to have a different era that by definition if you're claiming more if you're broadening and it has to be in the specification you're claiming stuff that you didn't claim earlier  speak they have not suggested this change they have not asked for public comment nobody has suggested this and all we did was rely on this if they're going to do it they should do it as they did with the toughest rules prospect of early notice in common and give everybody an opportunity to