my side of the case opposed to early start the case has nothing to do with the merits of the reexamination of and office it goes to the underlying procedure used by the examiner to met the declaration argued that they raise this arguing extensively at the patent office and the patent office the neither petition to strike saying we don't have to comply with the f r e well our position is well maybe not the f r a but yes the u understand that i mean you want to when you want to say that because you went to the director that automatically turns into an a p a sit but you all they get an a p a suit if there is no other group lisa vailable elsewhere right and so if you can get relief is appealing and it's it's the patent office so they have the rules about how you challenge this the director for the the one eighty one petition so we challenge that we said please strike these they said no we don't have to follow the f r mechanism that talks about constitutionality and that examiners have to comply with that and it's if you were to construe that argument and say well an attack at the m p p or at least the allowance of this evidence  party re exam process but the way it's set up currently with the one hundred one declarations being denials being final agency actions it's a different the travels a different path just like a restriction of parliament or other administr issues to us i don't understand how you have a a p a action here that's final and review of all respects you know if you're going to review but let me let me ask you a hypothetical if there wasn't  separate procedure for the director to issue related evidentiary issues and we say oh yes and you could raise that to the examiner and they examined her can make his or her own decision and you could raise it to the board and then it came out here that would be a sufficient procedure right practice and so the only thing different is in these cases the director can make a determination and direct the examiner what to do the poor and i think i mean the board can still disregard do that now for the first time at the federal circuit and really argue it we in the case would have to it seems that the appellant is a disadvantage to start right now where the only statement we have is that the director only i'm not saying that they examined her or the board exclude it from the record but they can look at it can't they say when the face of that even though the director refused to exclude it on whatever constitutional or due process or whatever other ground foreign did undertake to refute the reliability of the evidence i would take with respect to the director's decision that the evidence would not be excluded that's again as was mentioned before not a final decision on the if you can still argue for the reasons that you want to exclude it in the first place that it's unreliable and that the board tim refused to rely on it it's really irritating phrase that trial judges used for the  years i practiced law and then that i probably had that is a tragedy for sixteen years well that goes to weight not in this village and what what all of this underscores of course is that the final agency action what reexamination proceeding if it has been aggrieved by the ports decision because of course it could prevail in front of the board it had could convince the board that the evidence in fact was unreliable and it could prevail in that it with my  it didn't discuss was the whether the federal rules of evidence would apply or the constitutional question for say which is another point that i wanted to make clear and there was some discussion about raising the constitutional claim for the first time in this court of course that the supreme court made clear in elgin v department of treasury even if the agency didn't have the authority to address the constitutional question then an alj and it was a constitutional challenge to collect impairments registration requirements and because employers were just met as a result of failure to register their claim went up to the and the p p and there was a question about whether the and the p p even had the authority to address the constitutional challenge at the supreme court left open i think the quest you know whether the agency in fact had authority but said even if it didn't because this court could review the constitutional challenge in the first instance that that was sufficient to challenge the exactly what happened in the challenge that was heard in the first appeal they better than has available to it adequate remedy in this court it can raise its constitutional challenges it in fact did that it could have done so  the two seventy five appeal it elected not to but that does not mean it did not have an adequate remedy in a court it's it and again because it is a reeves imitation proceeding and one perceiving as this court may clear an automated merchandising system in analyzing the final agency action question that this court makes an independent evaluation notwithstanding with n p p says and even an automated merchandising system the agency actions in that case the petition decisions i'm selves said mistakenly that they were finally agency action subject to review under five u s c seven zero four this court undertook an independent analysis  here and because the petition states there haven't been a lot of patent rights that occurs it is that all at the end of the reexamination proceeding there's no finally jancee action there's no consummation of the agency's decision making on the relevan question and there's no determination of rights and obligations on the basis of that helps to direct the people's putting that lie in the will and that it and it's my understanding that the director has done so and that's not on the decisions at issue in this case and the the final point that i would like to make is that there are many practical reasons why the administrative procedure act channel's review of procedural decisions along with review  like you have a couple minutes left of all again who can or you can keep saying that that it's unconstitutional you don't need an answer from the other side to say it's unconstitutional to you but then with th