don't don't get with the primer on on the law of statutory construction that's not a good use of your time let's go right to the heart of your right the heart the heart of the first reports look at the wording of the statute and the most important thing what is it about this a judge like castor paraphrase that statute changed the wording of the statute and read it as you might quote a reissued patent must result in a change to the specification drawings or claims of the predecessor patent in other words he interpreted those words all right but if i didn't extend that that's an inaccurate statement of law why isn't it harmless error because we believe that net right isn't titled to correct the failure to final supplemental declaration because that failure falls within the literal words of section two fifty well the literal words of section two fifty one seem to focus on the verb claiming claiming more or claiming the less so what did the absence of a declaration have to do with claim substitute for the we're claiming the word assert or conten error that judge lancaster made was reading the word claim as if it referred to the claim language in the patent i'm going past what judge lancaster said and i'm asking you to help me understand what congressmen question is did met red claim a search for content less than it had a right to claim a search for content and that's where the supplemental declaration fits since the language of the statute  right to claim that the error it was trying to correct in the first three issues was inadvertent was made without deliberate intent and was read to the patent holder week invalid but was it in error regarding claim it wasn't a failure it was an error in the sense it was a mistake and it wasn't we were he was a mistake the question is whether it was a mistake going to claim me and my contention is your honor yes because  pick up things that happened you know in war what kinds of things trigger the requirement to file a supplemental declaration if you file your original declaration when you file for the invalid because there were claims there were changes made to the claims that would trigger a requirement to file a supplemental declaration and a supplemental declaration was not f i believe that's correct so if those changes to the claims have not been made then the requirement for a supplemental declaration would not it would not have been triggered if the original declaration had covered all the changes validity the fact that if you claim or less i think in this case last then you had a right to claim without a declaration if you hadn't made some of the amendments then you reissue would be fine without the supplement well and then there was the second reissue on which was an attempt to correct the failure to file that there were changes made going into another for lunch i'm trying i'm trying to help you out i understand your honor and i'm trying to be up to that yeah i'm just trying to see whether this this analysis holds water but it seems to me that if the supplemental declaration is not necessary in every reissue and it's only necessary where you alter their claims then the reason you were first is by definition once a claiming less than it has a right to claim and you can get there either way now on the question of the meaning of the word claim being broader than claim to the invention brenner in particular the district court and i'll read from what the and then all the cases that the effect of scope of the claim was broadened by something being added to page one of the had the correct name of the inventor et in this case nothing is being added to page one of the patent in this case nothing is being added anywhere in the patent document in this case you want something submitted to the file in the patent office that should have been submitted at the time of the prosecution of the first three years you but wasn't so how is that comparable to what happened in brenner or starter or any of those other  cite brenner and starboard frontage and really to point out that language and bridge the phrase claim in the patent is as used in search of two fifty one includes a claim to write a priority you under the shadow of any of those precedent because we have because this goes to the record that the patent examiner reviews and the public and potential infringers looked at to determine what it meant red's rights are th right isn't there we have it we were claiming less than we had a right to claim in the application it's the application that would ultimately define how we got to this patent it's the substan record on which to patent this bit our contention would be that section two fifty one is there is a remedial statute to allow patente strip correct things that affect that substantive record in a way that was how is it that the statute was intended to fix a prosecution error by an attorney as opposed to an error in the pa phrasing we would suggest by by the broad fridge by reason of the patentee claiming more or less that he had a right to claim in the patent if the congress intended that remedial statute to be limited to first three issue patent greed word for word the same from the top of page one to the bottom of the last page actually i don't believe there were some additional references that were added in the second reissue but those we don't rely on those this case the claims are the same claim to have the same wording venner ship is the same etc the only difference is that the file of the second real issue prosecution has in it a supplemental declaration that was missing from the file of the first real issue prosecution as relevant to this appeal yes that is that that's the only difference is relevant to the appeals or say there were some like congress is saying in certain circumstances let them fix the defect but the premise is in certain circumstances not always not any defect but if certain prerequisites are met so then we're trying to define what are the prerequisites are seen before two are not even arguably an issue here nothing wrong with the drawings nothing wrong with the language in the specification so there was some claim and that what if we agree with that definition of right to claim then you can absolutely un well that sounds very strange to me but maybe i'm being too picky well i'd only suggest your honor that other courts have gotten there too and you cannot read for example judge like our judicial position that you've got a fine year or in the claim language consistently with cases like brenner i've already agreed with you that that statement is an inaccurate statement of law but that doesn't mean that you win you need more to win then you have then once you're outside the claim want good you have to you have to look back at the language of the statute you have to look at prior judicial decisions you have to look at administrative interpretations here the p t o approved the second reissued and you have to look at the purpose of the declaration must satisfy these two distinct statutory requirements we would submit the minaret is quite wrong want to search if there is no case for this court limiting the language by reason of the patentee claiming the precedent of this court has said here expression less than they had a right to claim refers to the scope of the claim where are you in your brief i'm reading from  to correct a defect in the reissue patent that had already corrected the defect in the original patent and then filed a second reissue application to when we when we analyze whether the six o two second reissue patent changes claiming do we look at only at the first three issues the six six the original there is a change in claims go i would agree with that but there isn't a change in claim scope if we only compare six o two second reissue with six forty eight first revision exactly and it is procedure goes issued they surrender the oath thirty six pack there were thirty six back and ceased to bid i thought you had to surrender the patent when you made the application previous you actually i believe you have to surrender at the time of fish typically the procedure is during prosecution you offer to surrender it and then it time officials say surrender to so six forty eight was stands on its own it's like an original patent six  six is an old then the analysis it was those thirty six evaporated the minute six forty issues correct or so oh thirty six is gone so if we compare six forty eight with the to and there was no allegation that the independent play was in any way over broader under the just keep bending claims were added to that there would be work lames and as a backup position in case the original a claim was ruled invalid and there the court said there's been no change in claims sco there is going to change in the number of claims but you cannot provide us with any evidence of the device that would infringe depending claim to not also infringe the independent claims mr chambers in this case the defect in the reissue the first three issue was the fact  that there was a supplemental declaration this correct supplemental declaration was required because that was an amendment made to correcting the over coin i believe that's correct or now to to remedy that the second reissue application was filed no changes to the claims but the omitted supplemental declaration was presented  hypothetically if instead of doing that a second reapply reassure application had been filed amending the claims back to the way they were before the overclaiming and then an inventor ship and then during the course of prosecution as i understand it they were further amendments made to correct what was perceived to be overplaying correct get around some prior are correct and it was that they took to file the same text was simply the missing declaration if they had filed the text and amended it back to the way it was before a supplemental declaration was required would that have been proper i don't think they would have been proper the first three issue would have been invalid for lack of the supplemental declaration under the duplicate then you would say i'm going to reissue from six forty eight and six so tonight i'm going to change the claims i'm going to change them back to the thirty six but those claims are already the overly broad claims are already defective supplemental declaration required by the regulation can be cured once the real issue proceeding concludes that's right that's why i took my position that's my position job speaking to those decisions and how they're really not helpful in this case because they made no analysis of what we're discussing here is to the limitations of section two fifty one and i know you by statutory requirements and actually this case is all about is a by statutory requirements and all this talk about a statutory remedial i don't know what that gets us because if you cannot qualify under the question i asked opposing counsel for you sit down and that is that if if the wire with for filing a supplemental declaration in the first reissue was the fact that there was a change to the claims to correct  issue application to correct the over claim we had that it will never been made putting aside the possible validity problems but had that amendment never been made then the requirement for a supplemental declaration would never have been trigger correct so that the requirement that was not that was triggered by an amendment to the claim it's a defect resulting from an altar but an alteration of the carry out the mandated to fifty one which states that i guess what i what i wanted to rephrase it i guess what i'm saying is is isn't the defect caused by the applicant claiming more or less than he had the right to claim without a declaration no i think the claim stands on itself whether it claimed more or less the amendment says i claimed more than i had a right to claim then you have the procedural issue preliminarily i noticed that you weren't the author or listed even of counsel with respect to this brief and i'm embarrassed to admit that i don't recall even  i understand it subsection c was added in two thousand and four the second reissue prosecution in this case preceded two thousand and four so the real issue prosecution in this case was under the predecessor version of one seventy five when i look at the predecessor version of one seventy five it has no subsection c so mr walters has made an argument about a subsection c that was not in the regulation at the x that's actually not accurate not true the truth is why we're sorry let's go on from there but when it's not a knowledge not may be detected or if detected not acknowledge then we go through the pursuit to the r t c decision and you can get within the literal meaning of the statute either of two way you get there by reading the words claim in section two fifty one as a certain content and consider the supplemental declaration and assertion or contention in the record of the patent that med read had a right to make what you can get there is simply judgement is getting there by saying by definition going from having a valid readership patent to not having a valid reissue is claiming less under claim in its in its largest form claiming less than madrid had great decline i did not hear mr mister wasn't sure that mr chambers tried to defend judge lancaster's reading of two fifty one or not i don't believe that reading of the judge in lancaster gate statute which that is that to fifty one requires a change to the claim language in the patent is sustainable you know of course it's not remedial statute and that's where the the the point of the that's where the remedial portion of the the statute comes into play i told judge for the error in the brief your honor and would suggest that the case be vacated rem