morning truckers since you referenced splitting up the argument just for clarification your honor i will scott kent for bozeman financial i will be arguing the issues concerning the supreme court's decision in return mail return now the supreme court concluded that congress did not intend the federal government to be included in its definition a person authorized under the a i a to initiate a proceeding before the pizza the question before this court is whether congress meant for the federal reserve banks to be able to obtain p tab review when the federal government including the other components of the federal reserve system may not do so the federal reserve banks a claim that they are it's not waived your honor st is unlike the typical case of waiver the fairy st thing that bozeman did after filing a notice of appeal in this court was asked to stay briefing pending a resolution by the supreme court return mail at the that point the supreme court had already granted search or it was apparent that there was a likelihood that the decision in that case would impact this case and we asked to stay briefing the federal reserve bank supposed and that motion was denied but unlike  do to relieve you of your forfeit your in this case because it's clear you were aware of the issue before you filed your blueberry if you asked for the stay for this very reason so you can't claim so i quit them when notice in fact that in hers to your detriment as far and i can tell because you were clearly aware of the issue and then made a choice not to raise it i certainly understand that perspective your honor respectfully we have a different one i think there were two reasons as a practical matter why that was not done the st is just a matter of dollars and cents could be quite honest as opposed to financial is a single inventor he has extremely limited resources there were constraints on his ability to pay his counsel to brief the issues in this case briefing in issue have done at least that simply to preserve the issue or raise the issue or put the other side or notice following the briefs that this was an issue so i just don't buy that argument because yes you could have charged your client to recreate the wheel but the wheel already existed it was already written hour and you could cut and pasted it right i don't think i'm going to do to be able to move you from your position on that issue but let me if i may just answer some of the other reasons why we think there was no waiver here the nd return mail also is in effect instructive on this point as the court is aware in return mail in this court no party ever raised the issue of the definition of person that was done by the panel s after a full briefing and after oral argument the two members of the panel found that there had been a waiver and judgment found that there had had not been a waiver and an articulate of the reason why the definition of person was important when the went up to the supreme court the solicitor general made the supreme court aware of the waiver point that this court had found waiver the supreme court nonetheless decided to proceed and address the merits we think that that is instructive here that you should not find a waiver when unlike i understand your position judge moore that we should have raised the issue but we think we're in a better position than the parties were in return mail where they never even raised it themselves i mean but that's a situation in which the supreme court can excuse the waiver here because you didn't raise this in your parade but we didn't raise in our opening brief but we asked the court for permission to provide supplemental briefing and that was granted so this court has the benefit of full briefing from both sides on the what i'll call the return the issue not raised in the briefs for at all oral argument and only in post arguments supplemental briefing we think that's here and then the for the other reason which is compelling and we do address this in our brief your honor was the change in the law doctrine we think we fit squarely within this the supreme court in return mail affected a material change in the law with respect to the definition of person under and i that's exactly the issue we have in front of us  that the federal reserve banks get their funding from the federal from a from a source other than appropriations cannot be dispositive the federal reserve banks the of how these here acknowledging page one of their brief if the federal reserve board is agency of the federal government the federal reserve board also is effectively self funded in fact it is the source of the funds for the federal reserve reserve or is not a part there not to the point your honor is that the mere from the sovereign and they're clearly not and i think going to see the the criteria that you raise your honor i think are relevant and need to be considered when you look at the totality of the circumstances you look at the statutory stress sure of the says that the federal reserve bank waive sovereign immunity it says that the banks could sue and be sued the supreme court has repeatedly recognized that language is a waiver sovereign immunity i have never come across a situation in which the government waive the sovereign immunity if the end entity is not sovereign also if you look at the way the statute is structured for example of course all the money if the excess profits go to the treasury if the federal reserve banks were litigating against bozeman the money that they would be spending there would go to the people of the united states the federal reserve banks or the operating arm of in a unified federal reserve system the board which is a federal agency during their modern history was during the financial crisis we discussed this in our briefs the federal reserve banks came to this court in fall of amec its brief in the starr case told this court that they are is no private rescue available to bail simply directed to collecting new lies in preserving data the claims also include another key feature which is the universal access feature referred to in the brief summary universal access feature as a distinguishing feature of a prior art and what it is is a permits all of the relevant players in the financial transaction to access the database at all points along the the key point here the board never addressed whether that portion of the claim is a conventional or non conventional feature and there was actually no evidence submitted to the board on that issue and so our point would be that underpass therefore the case needs to transaction payment clearing process and for the patent described help with innovation and contrast with the prior art which was a closed system allows for more accurate fraud detection and i believe the board or any of the parties dispute that the of least purports that to be an improvement over the prior art and there was no analysis of whether that purported improvement over the prior art was a conventional or non conventional feature by the board and there was no evidence submitted that it was conventional in of the concept that the court found to be the abstract concept here the board did not find or rule on whether this concept of configuring the database a lot of access to multiple parties was part of the abstract concept the courts abstract rather the board's abstract concept in this case was narrower and didn't include this feature and so therefore the what we're going to do is look at whether this additional feature added anything to the claims whether it was conventional or unconventional that i'm confused you seem to be enforcing step one step two in your answer i understand your data accessibility point to be a step two of the alice argument not a step one i don't see why having the database acceptable multiple parties changes whether or not it's ty guidelines there's a real problem with that request given that most of those claims were separately invalidated under section one hundred and twelve dollars which you did not appeal and so i feel at a minimum that your whether it over breath or what but i feel like your request it's not something not belief that this court would ever be capable of giving you is that right the brief could have been stated better in that regard the focus should be for the six words your own claims twenty one through twenty four  good morning your owners may please the court jeffrey buchholz for the federal reserve banks all respond to mr ganns argument on the return mail issue and if it leads the court my colleague mr mitchell rules will respond to mr mauer's argument i'd like to start with preservation since that's where the court started on return mail there's multiple layers of forfeiture here i'll start with the opening great for the most basic rule and i've heard of appeals as you can't raise an issue that you don't raise in your opening brief and judge moore as you point out here there's not the obviously give you that really the order didn't write the order granted supplemental briefing limited to ten pages and one of the right your waiver argument correct but that single judge order granting self middle briefing without explanation i don't think binds the m did choose to allow this briefing as your honor points out the waiver is is is is discretionary in the court could reach the issue for once we don't think that the order simply granting leave herself in a briefing should ti here there was a request for example in a briefing which was granted whether i would have granted or not is not the relevant question but it was granted right in both sides had an opportunity to that the commission at that point and the grant was over your waiver argument so it's not whether it's decide the issue the last thing i just do want to say in response to your honor's question is the order granting submittal briefing allowed only ten pages per side and so your honor asked my friend on the other side is this isn't this different from return mail where the supreme court had a full that you didn't feel like you were given adequate opportunity address the issue and if so did you make any motion to that extent i have no no your honor are you making one orally here we weren't given adequate time no your honor i'm not suggesting that all i'm simply saying that as the court decides how to exercise it maybe there aren't many cases like this well i think these are these two cases below are the only cases that i know of whether where a federal reserve bank has petitioned for post issuance review there are other cases where the federal distinction is the one the supreme court emphasized in return mail is from port said it's reasonable for congress to treat the postal service and other federal agencies differently from everyone else for e i a purposes because they already enjoy the advantage of limited remedies and only claims court at infringement suits the federal reserve banks are subject to sue for bad infringement in district court like everyone else subject to the full range of remedies and don't have those precious protections that the government has and so that's an important point in the return ma opinion and an additional clear distinction here to what i would say and then to get back to others question about how important an issue as in the federal reserve banks would be happy for the court to resolve this issue and rule that they are persons entitle to petition for post issuance review that hasn't come up that often only in this case is the only issue the only case i know of where there where reserve bank has petitioned for post issuance review but since the reserve banks do get sued for that infringement in district court like any other kind of defendant it is important to the reserve banks to have the option of post issuance petitioning available to it in a way that's very different from the postal service and the other thing i'd like to say about the merits is that i think my friend said that he thinks that we agree on the test the test is whether the reserve bank are distinct from the sabra i'm happy for the court to apply that test i think that the st place the court should look on how to apply that test is the supreme court's decision and bench act which we cite briefs the cuba central bank case where the supreme from the sovereign so here as a matter of law the reserve banks have been created just like as you pointed out by spy congress by statute in ways that make them distinct from the sovereign the supreme court says normally you respect that and i can't think of a good reason here why you wouldn't respect that when normally the supreme court says you're supposed to again because why would congress want the reserve banks to be subject to district where patents to the full range of remedies along with every other private defendant unlike the postal court actually emphasizes that as a reason why it was reasonable for congress to not allow the postal service to petition for post issuance for you the postal service in a sense doesn't need the benefit of a i a petitioning because it already has these unique defenses time possibly correct and we do think the answer on the merits is clear and it would be to the banks advantage to have the court settle the issue now if the if the court settles in our favor stars as if that was some kind of gotcha that brief goes on to say three pages later than the quote that my friend or i do as the federal reserve bank of new york is not a part of the united states government it is a federal instrumentality a corporation entrusted by statute with important federal functions and all actions relevant to start of that case the bank was closely allied with but legally separate from the united states well exactly legally allied excuse me closely allied with illegally separate from the actions at issue here this is a claim this is a dispute about whether the banks are infringing bozeman bozeman patents relating to check clearing providing financial services running a payment system that conduct the federal reserve banks and gauge and directly under their own authority provided by congress yesterday subject in some areas of their of their banks conduct to more direct supervision by the poor governors in the kind of that issue here the banks are acting on their own pursuant to director and with already from congress they are legally separate from the i'm just sherman act and i trust statute the federal reserve banks were persons even though they were corporations both courts said that they are not persons they are sufficiently linked to the government that they should not be deemed persons that followed on the u s supreme that i understand i think it's a constructive but you're on a made disagree on reviewing the cases i will work for the court also to a decision from this court after we filed our brief what was cited in my friend's brief american bankers association versus united states that decision did concern the federal reserve and there were several aspects points there they go into your question about the stock the this court observed in that case that the federal reserve stock is part of a regulatory regime and th an infringement we believe so but if this goes can be friends why should they be able to challenge that well that this supreme court addressed that in return now that goes to a point that my friend brought up where i just want to observe that to do so also my friend was mistaken in his response to a question about whether there have been any other p tab for review requests by the federal reserve banks there have been we found at least one federal reserve bank the stamb r two thousand and thirteen there were several numbers but it is three for one and several other related matters so we know that it has happened before and to the point about how big a problem this is if you accept my friend's view what would happen is there are all kinds of generosity with the time i'm going to touch thanks question about how big a problem this is i think it's more than just the federal reserve banks there are all kinds of entities created by congress that have different attributes some of which look like private and some of which look like