may it please the court stephen compared for now that i begin with four points for guarding statutory stoffel against apple first in fairchild this court held that a stop will arises from its final decision even if there is a revision and no final judgment in the action as a whole without uttering the word apple effectively asked this court to overrule fairchild because it did not explicitly consider also point out this court my second point was fair trial states the correct rule this an appeal to this court terminates when an issue is the mandate because that is what returns jurisdiction to the district court and s regulation on p tab appeals so an appeal to the u s court of appeals for the federal circuit whether from the decision of the board or a judgment in a civil action is terminated when the possibility but that that requires on by preview as in pre code b o the rule is that you can have a final decision even with the final judgment alas for the contrary rule that there has to be a final judgment in order for there to be says any unresolved issues and remand would have nothing to do no effect on the now final seven to patent validity determination and that's true here too but i guess i'm not one hundred percent certain that time for search she already has to be resolved in any instance i mean not just under the very speculative mercer rule but it all because when i think about similar doctrines whether it's collateral stop the race judicata any kind of doctrine finale is achieved when the time for mandatory appeals meaning non discretionary appeals are resolved so fairchild may have gone further than even the law requires by saying the time for sorcery already in that one instance has required it's time not maybe i don't have the authority to change their child you know at all and the time for search area expired just like it has here but i'm not sure that's even exactly the right rule on a clean slate because when i think of analogies to all kinds of other use of the law may have even gone far even though it needed to but we sure don't need to move it all the way to the mercer absolutely and congress does not intend it the congress knew that patent validity decisions are almost invariably their facts pacific their patent specific almost never worthy of supreme court review and they did not want to arguments in support of playing with right but wrong well there was a commonality of arguments but they didn't address all the arguments and any one of those arguments would have preserved forty seven so they had to address clean forty seven so what you do in the board even if you have overlapping arguments you have to say you can't group the claims together and then say well you got it address forty seven but if you isolate forty seven they have to address the arguments and that's what they didn't do security services are integrated and when they affirmed on that alternative finding i don't see why they needed to address our p c s up to now you know right now that this is a different issue they have a waiver argument in their brief we didn't appeal forty eight which is another story claim and that has a different kind of indication is actually an indication performed by the client software module not the d s s if they could've raised it my only point is that there is no c because it was never set forth as a and of rejection for the independent the fact we didn't appeal it doesn't prevent us from getting to the merits so i'd like to turn now to the fact that lended hand does not disclose the claimed indication so the essence of the invention here is that the  indication is return of the network address and then the a c l issue and i wanted to address both of those so you can see from the specification for example  two forty eight which is figure thirty for step thirty four ten that describes an indication so you see the secure server access is the gatekeeper gets the parameter for the secure communications link they eleven men they say that just returning a network address for a server that might in the subsequently be this part of a secure remote procedure call i thought i understood cisco to argue in this it's based on a part of london and page twenty eight that was never asserted and i know it's very confusing your honor but was never asserted for any of the other claims and it wasn't even raised by cisco for the other claims so it's not a bar to considering so this is page twenty one of land and then is just a basic return of a network address that could be part in the future of a subsequent communication we think those kind of conventional d m s functions are disclaimed but even if you don't find disclaimer one skilled in the art would not find that to be the kind of indication it's not an indication that the d n s s itself support establishing this year she clearly and now i turn to the a c l which is even more  think fragile of a holding and the a c l is eleven men it's on page thirty four and ninety five eighty and it's worth looking at that because all the a c l does is determine whether a particular user the statute does not demand of us when there is an issue in our wall that overlays nicely with issues in other areas of law and we're really reach a different result from those who tend to get in trouble with the supreme court so if we're not consistent in our understanding of the preclusion issues if we're inconsistent with mainstream law in preclusion isn't that a problem absolutely not right because justice for senate recognizes congress can mandate different clear rights than one in congress is section three seventeen be mandated something differently just said once a final decision has been entered against a party in a civil action your view full supreme court search yari in every possible way to have been exhausted before it becomes a final decision if you are i have answered that question and it actually has several different levels but let me start  levels if i know you well go ahead i'm going to make it through up for purposes of this morning the first is this there is a legislative history to the statute and the legislative history explicitly says as we cite to you in our brief basis for differentiating certainly the p t o thinks differently right now i mean we have apple argument to us in some instances the p t o should get deference and here in the m p e p they they interpret this as limited to time for a federal senate report is that hearing it's just it's just you know i don't have the precise you know legislative history has various levels of credibility that ought to be attached to write a senate report her house report is one thing at a rate of statement like you could go testify before congress individual senator would you agree with me that that is entitle to less weight for example even among those who might be tending to give credit to legislative history less weight than say a senate report actually your honor what i would suggest you know that i ask you a simple question  and decides the issue there here is that you think that we as a panel could better really differentiate fair trial because the second period for search which also existed potentially in your child precisely as it does is there's a distinction between the court having decided a legal principle that basically decides a broad set of issues at a court having decided the specific issue that's before the court today you did not you were not a decide that second issue and in the discussion i've had with judge moore the premise of three seventeen b is when you have two competing proceedings and for sentience recognizes that you can't have two competing proceedings the case were granted when the first case was for amended after the first opinion by this point two thousand and fourteen as this in the district court getting ready for was retried that was we tried again and if it settled at that point in time with the decision not have been final the answer is damages in the litigation and credit is the next to litigation you want me to remain on damages so if i want to remain on damages and have a whole new trial like you requested probably that case with appeals and everything else would continue another four to five years so we'd be looking at twenty twenty four and i'm sure you would find a reason if they jury awarded against you that there should be yet another new trial because this it would be the third or fourth having trouble keeping track so in any event so your proposal would result in no fidelity for in this case fourteen years fifteen years even though validity is long since been decided affirmed by our court ten years ago your i mean responded that very fairchild opinion is that if source is available then it's not final and what fair charge for it said in this circumstance in this circumstance it's not available so that's fine but  proceedings are unrelated to the nine seven two patent and then it says and here is how integration does not suggest nor is there any reason to believe that any unresolved issues on remand would have any effect on the now final nine seven to patent validity determination is the statute about final decision one validity that's what the statute says so shouldn't those words have meaning as opposed to a final judgment on the case they do have meeting and that sentence actually makes perfectly good common sense for this reason article going to be just lodged in any way shape or form how i think you're actually respectfully if the clients go back down to be retried and there are you arguments being made in the infringement portions case that might deal with it you could have  motion to set aside and of let the determination and even after your mandate issues what fairchild is saying and what the pinion says is look it's important that nothing's going back down on these patents and all i was trying to say your honor is arguments that are made and then address those arguments and that's precisely what  separate arguments regarding claim forty seven all they did was refer back to their arguments about claim thirty six and recite the language of the claim itself and as the board's rules provide merely reciting the plain language is not a separate argument found in a particular domain name and so it's merely refining in specifying in more detail where the indication is found in the code in the claim domain name service system since the domain names in claim thirty six are stored in the domain name service system finding and more specifically in claim forty eight in the domain name itself provides with the sufficient teaching of the claimed indication and supports permanence and then i'd also services which is what the fields do that that is a distinguishing feature you can see the examiner summarizing burnett x s arguments about that in the appendix at page forty two twenty three if there are no question very quickly fairchild did decide to rule that a final sit on patent validity creates a stopper even if there is no final judgment even if it didn't address all the arguments you cannot ph president of this court i pointing to an unaddressed floor statement in the house furthermore that says all that for statement said when all appeals have terminated your peals that are listed in three fifteen be the appeals to the people in the federal the first so what kind of policy or legal argument to make that you only get one chance for social but not the other the second the policy argument and the legislative history is clear on this is that you don't want to have but which so did power integrations and fairchild have the exact same review rights and i would point that nothing in the question both of them remanded issues that could not possibly and you can't have deference even the ambiguous part of the m p e p if they refer to can't trump the regulations that i referred to and he doesn't even address the question that he makes about findings it's absolutely true that the board even though it is limited to the record and review of the examiners decision is that the novo finder of fact p t o has said so ninety four us people p q second ten seventy two we decide a new the factual issues that are contested and in or a young this court also talked about that and that's why this court refused to board factual decisions for substantial evidence you cannot find this stunning and i would just point to the court for example and the five zero four appendix one ninety nine two hundred which is a patent column fifty four to fifty one ted talks about the secur