our final case for argument this morning ms thirteen one six seven eight japanese foundation versus leaps and give everybody a chance now you don't say that the other side cannot complain about the p t o its failure to distinguish carnegie mellon because they didn't bring carnegie mellon to the p attention and at this point i guess i'm curious assume that the district court went over board in saying unless the p t o concludes that eric actually was was authorisation they have to enter the thing what i'm concerned about is that you agree that the agency hand in the ordinary a p a reasonableness standards for the exercise of its discretion and i'm having trouble in that particular instance where there was a double obviousness rejection and where there was the language it may use a transposition and did just i understand that to mean switching numbers because that they're the mistake is likely obvious from the record that on the face of it they'll be able to know what mistakes happen and so when the decision here for the p t o says look we don't want to have to engage in ad hoc determinations about whether there was reliance and about whether the attorney would actually authorized as directed by the not that where does the p t o ever talk about attorney authorization it talks about how it won't engage in an inquiry into whether something was intentional but that's mellon your honor my understanding is that in carnegie mellon it essentially just adopted an exception where it said look here we don't have to look into exactly what happened between attorney and client and what it says in the relevant n p p provision is that they're on the face of the record it's obvious what happened there now obviously reasonable minds may be able to differ about sort of exactly how the competing policy considerations come out in that circumstance versus in this circumstance but it's certainly not irrational for the p t o to draw that distinction  i don't think i have remotely suggested that it's irrational but what has to be what has to happen is that the agency has to exercise its reason and makes a point i mean i think there are a lot of standard a p a cases ciccarelli tried in as i understand it under the a p a the agency needs to explain its decision but obviously doesn't need to sort of tick through every other decision that might be related and explain why it is that it's different to the extent that the agency does need to give an explanation of why it's different i understand that reference to b m p pre provision which points to i think not actually carnegie mellon itself that points to that sort of circumstance instead that quote the inadvertent fee would be it's approximately a put the inadvertent see would be apparent from the base of the record i understand stand that to be saying but that's one exception to this general rule agency justified because it believes they're the inadvertent see would be apparent from the face of the record again as i explained i think that in light of some of this court subsequent cases like that for fitness and yama kasi there's actually a question of how what happened in the underlying p t o withdrawal carnegie mellon would actually turn out today but the sense that the p t o in the m v p has said we're going to treat that situation differently and we're going to do that because answer that question but my recollection is that it was not at least in the pen dick's materials that reproduce the filings that the foundation made here i don't see any mention of but i also did not see mention in your of an argument that says that isn't enough to excuse an otherwise missing explanation of the distinction of a circumstance in which the p t o actually did withdraw the disclaimer different than carnegie mellon and to that i think i've explained i don't think it's necessary that the agency sort of check through every alternate case and to be spent that it is actually do you think the reference in that footnote to that factual scenario n p p addresses but that argument that your honor is advancing that  agency didn't kind of clearly point to the underlying decision in the carnegie mellon case and maybe it's clearly as they put up explain why it is that this is different than that that i don't understand to be an argument that the plaintiffs have made a little let me say for maybe the form of the argument that that can rely have to be able to rely on the for when i say to myself as we don't know if they mean that completely across the board because carnegie mellon exactly the same situation and i think they say they have that's not a justification and the second thing you say is why the agency can't be expected to inquire into attorney authority in every single file and that's obviously a red herring the question is whether the agency is adopting a policy that says  n the tiny tiny tiny percentage of cases in which somebody makes a filing that says hoops my client didn't authorize me to do this the agency wants to say we will not look at look at that i don't see the agency having said which i think it could reasonably say but it hasn't done so what respectfully or i understand those two points to be two sides at the same point i think when the agency says it doesn't want to touch it can't engage in these kind of case by case determinations o exactly what went on between attorney and client and the agency does that think this is honor and ninety eight that they don't want to have to examine the reasons for filing terminal disclaimer i understand that to mean look if the agency when sort of faced with this kind of accusation is that even though you had a disclaimer that under the regulations was properly filed that nonetheless maybe there was some kind of a disagreement between attorney and client if he didn't see were forced to then decide you know figure out what actually happened here then on the front end the agency would be in kind of a tough position because even though they promulgated these regulations that say in the language in the agency decision here that inquiry ends of the door that once it's been filed by the attorney of record to be clear to the applicable  that someone might later challenge and i think that when agency then talks about both reliance on the fact that it doesn't want to have to make ad hoc determinations of reliance and that it doesn't want to have to make case by case determinations about what happened between attorney and  what the agency is saying now again just on the most a perfect example of what courts mean when they say roy is post tax rationalizations for agency decisions where all the reasoning is still in the decision and i ninety nine when the agency says that it will not engage in these kinds of case by case determinations about exactly what happened i understand the agency to me that we think that's the key point right so everything else fails to distinguish carnegie mellon calling that general reliance on the attorneys representation does not conclude does not answer the question is general the general need absolute yes the legal reasons for the critical thing that that is backed by this all aberration of how it would not be practical practicality doesn't matter we understand i mean i'm happy to just stick with the term this is not a public forum when the office which would have to make this determination says this is not the proper forum and they do cite applicable cases i think they cite links pointing to that background policy we understand that to be a policy when being made by the office you know i understand your honour's point i understand  that goes not just to general but absolutely never under any circumstances we get one of these petitions every five years and it conclusively shows that there was a lack of authorisation nevertheless we are not going to withdraw the disclaimer common law process slowly fast flesh out of policy so in that scenario obviously the agency has applied its longstanding policy your honor indicates that there is but one exception but one instance that came up in carnegie mellon because i don't argument and so that's why in response to judge drunkard's question we did not identify the possibility of a waiver because the plaintiffs have not yet made that so this is my first opportunity to be able to say to the court that argument we don't believe was raised by the plaintiffs either one i think ordinarily an agency does not have to sort of check through every other decision which may be a little bit different in explaining the differences in two to the extent that it does the agency did in a footnote identify the kind of factual matter scenario that has come up in carnegie mellon  point the relevant and p e p provision which says that in that factual scenario the inadvertent see is apparent on the face of the record and we think that that is even if it were necessary for the agency to distinguish between best and the underlying decision that was foundation appealed to the district court but at the p t o there was no mechanism for even raising the issue of carnegie mellon because carnegie mellon involved a certificate of correction under section two fifty five raised section one point one eight three the first opportunity for the cancer foundation i raised the issue was that the district court and the cancer foundation sought a certificate of correction from the district court as this court filled in suffolk technologies which is cited in our brief the issue was properly before this court because the district court recognized considered and ruled on the issue including a certificate of correction are not available to withdraw or otherwise nullify the effect of a recorded terminal disclaimer and as this court held of georgie warren case the foundation was not required to perform useless acts to exhausted ministry of remedies most telling is that carnegie mellon was decided under the very same version of section two fifty five that is on the books today and section four hundred ninety hasn't changed either and the agency has not issued and has not done any informal formal role making it is not stated to the public that we've changed our view since then and in carnegie mellon the what the attorney filed was something called the petition to expunge if such an animal even exists under the regulations and y or the lawyer has authority to sign papers on behalf of the client that doesn't mean that everything that the attorney does has been authorized by the quiet but the by the rules specifically say that if there's certificate of correction procedure under two fifty five and the regulations because by definition any disclaimer for any other part of the patent that the pattern owner sought to correct under two fifty five  record then the attorneys have the authority to disclose right not if the attorney has not been authorized by the client to do so and in carnegie mellon is a c span authorized by the by the declaration of the pines and here here's my attorney record this person is off for ox in carnegie mellon the attorney filed the erroneous disclaimer twice and waited more than a year to correct it after it already been published in the official because that and that regulation was no bore to certificate of correction similarly earlier this year ironically about the same time the briefs were being submitted in m a court and court the p t o held a debate in abeyance pending the final outcome so this regulation has not been consistently applied by the p t o before moreover i mean are we are you making an argument about how they have  ty which which the government can see if the let's put put that question to one side and the question is does the agency reasonably exercise the authority now it's not very hard to  agency said that but it's not hard to see how the have that's a different situation from from this one so that i guess what's fair what's what's the what do you what are you arguing w it is a different situation and it's different in ways that don't help the p t o s case because the only justification that has been served up by the p t a in support of this res the potential for public reliance i agree if that were the only justification that would plainly be insufficient because it would be inconsistent with with with carnegie mellon but it's not the only justification they say not that much money but they say we don't want to get into an inquiry about whether something that on its face we do file was was intentionally a little fact that they don't want to doesn't mean that they don't have  to under various statutes and their own regulations why do they have to or they have to because for one thing section two fifty five authorizes and indeed that's the premise of our cross appeal and that was just simply reject that this comes under a clerical a typographical her not her well done one point one eight three zero and broader because one point one eight three probably or legal conclusion regardless of how it's characterized about which everybody vigorously agrees the cancer foundation said it was extraordinary the district court the summary judgment decision said it was an extraordinary really even assuming they have already do why do they must do it because on the record before the agency it is uncontested that this disclaimer was reliance if that were a valid concern but that aside were they have to grant every situation where there was no public rule on in some situations there might be some dispute as to whether it authority but i'm assuming lack of authority let's assume lack of authority are you saying that every single situation where there is lack of authority and there is no public reliance they must grant a correct and we're not setting  i'd need to do it if there has been a mistake if it was not authorized if there's been no public reliance and if they can't articulate a legitimate justification for constantly after the fact and say no no no there was no authority they say they need to rely on the attorney of record who was specifically authorized by the client and that's not a reasonable basis under any standard abuse of discretion or arbitrary and capricious because for one thing here it is such an unusual situation it's on likely to ever occurs are likely to provoke a series of copycat efforts to really drive how do one know that the circumstances are unique the consequences of a withdrawal are severe and possible that there would be a lot of situations where someone would regret fallen disclaimer and come in and say my lawyer was not a prostitute that's certainly possible but that's not this case in a district court expressly addressed that this is not a situation where there was a strategic decision doble weighed in obviousness you know double patterning issue or the like and someone had buyers or sellers remorse whatever you want to call it there was no strategic conduct here and there's no i think that the basic position reading into what the p p s at eighty nine nine nine nine is that we're not going to do it in this case because if we do it in this case we require ourselves in some broader class of cases to make an inquiry that in most cases filling in is going to be there for us and we're just not going to make the inquiry well then is that of not not a perfectly reasonable position in the face of an actual grant power because there are seventy six regulations of the p t o that require it to examine those are cited in our brief and indeed the statute governing terminal disclaimers section two fifty three as in effect at the time specifically referenced the phrase without deceptive intent so the p t o may not want to do it but it has to do it and what the has done here is it has sought to mend both statutes to fifty three to fifty five with the congressional authority it sought to him in its own regulations fourteen ninety which it hasn't is also regulation one point one eight three which refers to extraordinary situations and to determine whether there's the extraordinary situation that's obviously a fact intensive inquiry may not want to do a fact intensive inquiry but that's what you have to do to determine whether you're going to suspend or waive a requirement of a statute or regulation they haven't identified any provision of a statute or regulation that the withdrawal or correction would violate in this case to the contrary the statutes pressley authorize two points your honor first explain the decision and its past can reasonably be discerned they talked about the fact that this was a record they talked about the fact that and pliant is normally found by the actions of his attorney and particularly as attorney of record and they said that the p t o is not the proper forum for adjudicating disputes as to exactly what happened between attorney and between client a proposition that is well supported in this case in this court case law but i think i understood my friends who have just said is essentially an irrational one  for ontario as to the question of whether the agency properly addressed the differences between this scenario and the scenario that came up in current email and i understand my friend to have just clarified that he did not make that argument either before the agency or in his brief so now for the first time we're happy again to say that that argument is way of but we do think that in the footnote where the agency points out that in that scenario the university is clear from the record that is an entirely rational distinction and secondly if the court does believe that there is something