the great state of california i have knowledge of his credentials and i'm satisfied that he possesses the necessary qualifications mr whitford although i did not know his middle name is kenneth it's been my career for the past year and and i know him to be an excellent lawyer with that not only a deep understanding of technology but also the law he's very much helped me over and over again i have a better deeper understanding  only the technology in a given case but also some more intricate parts of the law and i know if he hadn't been there for me i might have made a few mistakes along the year but luckily i've made no mistakes aristos construction ciscos construction attempts to adopt and read in wholesale the proverbial body mint whereas aristos construction is broader and yet still reasonable because it comes directly from the language of each and what's the difference can you tell us in english the difference between a wrist has been struck in the boards construction so the boards construction yes so there's this construction says transmission to one of more devices devices are in fact in these something than just the mere delivery of information to a device somewhere on some network so claim one i think you're right to focus on it talks about communicating information about the changing configuration it or the patent tells us that the communication can hurt you can occur by a blinking light on the device itself so the communication can happen because there's an indicator light on the device itself that's a common seven around line twenty five so a clean one is really quite broad the address and people subscribe to that address in the pattern tells us that these network security monitors have to subscribe to the multicast to the address and the patent doesn't say you must have two and it does not say our encompass everything including just merely sending an email from noted a no he is not right it's just too inclusive to me is there a backup plan construction that you a clear notion in the specification of your view that it has whatever broadcasting is it has to include multicast is absolutely right your honor and so at a minimum a claim construction has to encompass adopt a new construction on the sports pages there really would be no need to ask the board to revisit what you yama includes that because you yama is squarely on all fours with any kind of definition that would be appropriate for the networks would be including an understanding that every and any single device capable of being linked up and communicating with is part of a very large pro but the network could also be some groups that you you created and then so there is this private group of terminals that are able to communicate with each other and creat that group or maybe it's an email group email message group that creation of that group is a network in and of itself obviously not as big of a broad general network but maybe that's awesome i think it's a good question that that term was not up for construction before the board was given its ordinary meaning in just china i think you're quite right and the broadest readable interpretation of network could be that you know it could be every possible thing that could possibly be connected including my re to all of the claims in the five nine seven patent and we resolve all of the issues with respect to the five nine seven and a sign or a stop of course is a subset of patent law doctrine that in the words of justice frankfurter quote has been part of the fabric of our law throughout the life of the nation reasons explained by this court in vote for saga and credit acceptance and indeed i don't think that there's any principled distinction between the issues in this case and the issues that were in credit acceptance and to take a step back you know as first sata explained institution and invalidation are two distinct actions by the piece have to do not become the same just because the agency decides certain issues of both stages of the process and here there's nothing about an issue of a sign or a stop all that is uniquely relevant the institution any more than the statutory astop bills that were it issue in credit acceptance which this court found government at any stage of the proceedings as well as in the district court in the i t c and indeed precisely because  entity to pursue and i p r though it isn't there extinction there so judge chin there is there's there is hypothetically a distinction there and it's a distinction that this court had relied on in husky but i think it's a distinction that no longer exists after wife i won in wife i won the time bar of course applied to an individual and similarly the statutory a stoppel that was it issue in credit acceptance it's it doesn't it by its own terms if you look at three fifteen easier or three twenty you could consider the merits decision in credit acceptance huskey of course by its own terms with only addressing an institution decision the only issue that was raised in husky was whether or not the board was required of the director was required to analysis and husky the first was to ask the question what was the issue closely related to the institution decision the second part was then the dichotomy between was it a limit on the power of the board or was it a limit on who c file i think actually both parts of that analysis have now been overtaken by wife i one if you look at page eighteen of the slip opinion in wife i one it specifically addresses that what does the closely related to idea mean and what the supreme court says in couso about closely related is the question is whether or not the argument being it vance by the patent owner depends on something that is closely related we're not relying on three eleven we're not saying the board violated three eleven just like what like in cruiser the argument by the pad owner was that the board had violated three twelve our argument is post institution the board was required to apply this on the merits under three sixty for example in determining whether or not the to meet its burden for example the application of collateral stoppel may be a reason that a party cannot bear its burden and the only point i was trying to make is that that this is something to the board just like the statutory a stop at issue in credit acceptance that the board has to apply in rendering its final written decision and it is not you even if you think that it is relevant to the three eleven a question it is not uniquely relevant to the three eleven a question and that actually sort of i think brings us to sort of the merits of the assigner stoppel issue and the board offers to energy related reasons for refusing to apply a signer sample it first says that when congress wants an equitable defense to be applied congress will say so expressly and then it  was before the board was once in a non presidential unpublished decision by the board in the context of an inner parties in the context of an inner party's reexamined that is certainly not you know a claw a substantive gloss on the law the congress  presumed to adopt and if you look at the supreme court's decision in jama vs ice the supreme court's clear that even a couple of court of appeals decisions is not enough to cry that kind of loss you know what i'm trying to figure out looking at this records that we patent office proceedings there's no such corresponding stack at work if you're in so i'm trying to figure out isn't there an inference there that we should be considering given that the statu e the patent board is silent on this trip there was no historical evidence that the patent office ever applied to sign or softball and then these other places congress specifically said yes you i probably most of the points that i want to try to do it to try to address some of that in the time that i've got left so let me break it down first i think underlying your question is what's the starting point what is the background principle when congress doesn't specifically speak one way or the other what is it that you are to assume the supreme court has answered that question time and time again it answered in it in lexmark recently where it says we're quoting common law principle is well established courts may take it as a given that congress has legislated with an expectation that that principle will apply and it reiterated that in b and b hardware which is directly relevant here where the court said that you could take it as a given the converse of legislated with the expectation the principle of collateral estoppel would apply and that's true not just with respect or just so i say what they say i would say that is belt and suspenders that those statutes say what they say and indeed the and if you look at the i t c statute and you look at the underlying decision  matter namely the decision by the commission itself the commission wasn't saying well we can apply a sign or stop a because the statute says this you recognize that actually by its terms of the defense assign or stop a wasn't a defense in the sense that the statute was referring to it was a saying well this is yet another data point that reaffirms that congress intended background principles to apply and i think if you look at this court's decision in rios versus nicholson which involved application to an article one court which is and effectively an administrative agency for  these purposes there you had the issue about the the postbox of the postmark rule and whether or not that was compatible with the mailbox rule and the court came to the conclusion that you continue to apply the background common law presumption unless incompatible with the statue itself and there is nothing here that's incompatible when you look at what three eleven a is about it is about it is about whether or not you can proceed ex parte or whether you have to have standing that's what it's about in other words the patent owner cannot proceed ex parte and a petitioner doesn't have to be a party who has standing that's actually in contrast to the trademark stance of the different court than what you were referring to judge sion but if you look at fifteen u s c ten sixty four which governs who can file trademark cancellation proceedings it says that those can be filed by person who can demonstrate that they would be injured by the continued registration of the trademark congress didn't draw that line here congress and you don't have to have standing in the sense that you don't have to show that you would be able  to be injured and at the end of the day that's what really what three eleven is all about it is about who can file a petition it's not about whether or not you can alternately prevail on your petition and there may be any number of reasons whether it's because of the law of obvious patient whether it's because of collateral stoppel which the board or the patent office supplies and other contacts and that's another point here that the panel office has taken in consistent approach time and time again this court has recognized that as a general matter the patent office has the power still use it but three fifteen b is is different from from normal collateral stoppel three fifteen b for hits you from and your you and your privies from proceeding if you've been served with the complaint regardless of the resolution of that case if you've been served with a complaint and one year goes by you can't file an i p r that's not the common law that's not the way the common law would work with respect to either raise you to cause a war collateral stoppel you can fi  now or maybe some of us some common law extension principles that potentially get applied but but but those are i know you're going to have a time but let me ask you a quick question about what say we were to conclude that there's the statu the only presidential board decision that is in the spaces the athena decision and by its terms is limited only to the issue of institution not whether or not the board applies assign or stop a when you get to the merits face so even if you thought the chevron deference would put it would apply to a presidential board decision you do not have a presidential board decision addressing the issue that is before the court which is whether or not that the board is required not when it's acting as its as the designee of the director in instituting and there are any number of policy reasons that the director might decide i don't want to consider this at the institution phase because maybe the evidence isn't going to be able to be marshalled it's not the kind of thing that the petitioner is going to usually be in a position to pre decisions that are at issue in this case and in the following case of course and this court majority and i an awkward products agree that a non presidential board decision does not get chevron deference if you were to think that the board's decision was in a thing or was relevant here i would submit there are two reasons that should not get deference in the court's review should be dunno go number one is it is not a reasonable interpretation of law again the supreme court has made clear you have to legislate when they legislate as with certain background principles in mind and the board flips that on its head is just wrong and second what the what the board purports to do interpret in section three eleven a it's not trying to fill a gap in a policy perspective it's applying it's applying principles of statutory interpretation and as the on bond d c circuit held in actions versus f e c if what you're doing is just interpreting judicial precedent that's not entitle to chevron deference ok your time is way off but if you want to kick off two minutes no more and talk about unreasonable reading of the term broadcast it would encompass the hypothetical the judge chen was asking about where person a sends an email to person b that cannot possibly be the meaning of the term broadcast out the turret that the the definition that we had advocated before the board was one that would encompass the concept of multicast that is that you are sending out what you do not know to one or more but you do not know who the recipients are going to be and i think that's sort  of the key issue is that you don't know who the recipients are going to be now i don't think that you get to this issue not only because of the assigner stoppel hurdle but also because i think that there is an institution issue in terms of how it was that that arista pitch petition and the alternative arguments it made to the board arista didn't advocate the board invalidate based on he would yama based on on the can on the construction that they were advocating that was an alternative argument and the last point that i'd make on this your honor is that to the extent that you think that the boards that you do reach the boards construction and of the boards construction is wrong even if you were to adopt i'd like to begin by the trust there's three specific issues with regard to a son or stop all and i'd like to take them in order with the court's permission the first review ability the second is whether the statute is clear that the board specifically wife i won because the board did not have sexual or three to act and the response from sitcoms for cisco on that particular question was that wife i want eliminated the issue of whether it's relying on authority to act and that is squarely inconsistent with the very last paragraph of wife y one explaining its reasoning and it's important i thought i'd like to read it quote in fortune statutory limits on  agencies authority to act is precisely the type of issue that courts have historically reviewed citing cases as a statutory limit on the directors ability to is it i p r the three fifteen b time bar is such an issue we hold that time bar determinations under three fifteen b are revealed by this court that was the very last concluding sentence of the opinion before that if that before the conclusion section that explains the reasoning of the wife i and when you look at what the agencies to sort of decision on the sign are stoffel is clearly not a statutory limit on the abilities of his ability to act it is a discretionary decision as to what defenses that agency will entertain in its review conducting its job and it's consistent with what cuozzo and life i want highlighted as being the purpose of i p r which are to address and eliminate patterns that should not proceeding would be allowed to go forward in light of the history that you've described i think then you're sort of getting into a  and absent the application of a doctrine that makes sense to say no then they would have that our opportunity at the but the question well more relevant here would be if that agency invokes some other doctrine not statutory limit on its ability and its ability to act to deny that person access to that proceeding with that would be reviewable i think the answer is no because that then would be that agency's determination of how conducts its business not whether it's permitted to conduct its business and that those decisions are not real one on one like to thank you so part two is a question of whether effectively was and preet a i a intraparty three exams that was the test about who could approach the patent office for that particular proceeding we think you  is that and this was drawn this was a relied upon by the by the court of huskie is that the a p tab unlike the i t c does not have a statutory provision saying all equitable defenses shall be and you cannot assume that that omission was negligent that a mission has meaning and therefore it is certainly reasonable for the people have to say as it did in husky that sign or stop as an equitable defense is one we are not going to apply consistent with our our objective our statutory objective which is to clean up bad patents and that statutory objective was relied on if you're in that scene shouldn't be using any of those it's my view that the agency is free to decide which of those doctors is a consistent with their statutory purpose and the statutory purpose is to clean up that happens and it says i have a petition in front of me that makes clear this is a bad pat i am not going to stay my hand merely because of an ethical doctrine that we've said should be applied i'm going to follow my statutory mission to clean up bad habits and those  clearly does not prohibit the agency on its face from deciding how it's going to conduct its business and the statute submission of look read that decision it happened to be in the context of a petition to institute but the reasoning was not limited that in any way the reasoning says our statutes has anyone not the owner of a file and therefore should not be applied doesn't say it can be applied at the merits phase that would be so you know you don't apply it at the it's official phase but to apply to the merits face that would certainly not be a fair reading of that decision so i think that issue was easily resolved the second was  not a reasonable interpretation well i disagree completely with that it's reasonable because of the fact that the doesn't have the i'd say my point which is the i c c about all acquittal defenses it's reasonable in the reflected in the district court decision as well and to say that that those facts should just be ignored because it's only a single decision i think is not fair to the people that they made that decision you really are active products opinion  i've read them carefully because they're obviously dramatically relevant to this question they're addressing a slightly different question there that touch irrelevant of course but they do not address directly the question of whether a presidential decision by the p tab would or would not be not need formal rule in common decisionmaking and in fact specifically says in footnote twelve i believe that formal adjudications can be the basis for chevron deference there are three examples that they give in footnote twelve and in the text one is the nation's bank case that was merely a letter from the control controller it wasn't a rule making decision making it was simply a letter from the comptroller that was cases to go so far as to say that you do not give chevron deference to a prior precedential decision and let's be clear people have decisions aren't you keenly granted presidential status that there's a whole the the idea that that decision with that in premature of the entire agency would not be given chevron deference i think is squarely inappropriate and certainly foreclosed by me and so i think there's not really an argument pressure very kind i will try to be under a minute the only thing i want to address that was brought up was this notion that somehow we can argue that even yama discloses broadcasting if you were to adopt our construction of terminals or even under cisco's construction which was exactly ours with that material tacked onto it we said it meant that construction as well everyone does on notice there can be no gotcha here in terms of our arguments consistently chief judge prose responding to the points that mr powers made more or less in order first if a sign or a stock were viewed as being purely an institution issue it would create the anomaly of number one stripping cisco of what would otherwise a complete substantive defense to patent invalidity against arista in any other forum in district court in the i t c and any other forum and doing so without any judicial review all without congress expressly saying so that is fundamentally inconsistent with the quote long tradition of judicial review of government actions that alter the rights of an affected person as this court said and for saga now when when my friend was arguing and saying with that that w to both just go to the board's power he left credit exceptions off that list credit acceptance is indistinguishable from what you have before you it's the same type of a stop oh yes it's in the statute  been viewed as a limitation on who and that's what husky relied on that that's gone after a wife i wanted in fact i think it page eighteen of the slip up and you know why if i won the court makes clear what it has in mind as far as what is unreviewable it's that the under review ability be limited to the director's determinations closely related to the preliminary patentability determination or the exercise of discretion not to institute and it recognizes that the preliminary because the final and ability terminations is and that's where we're are we're at the failure to apply a signer stoffel in the final ten ability determination now with respect to the issue of of of the friends  on need there's the c e o motorcars case and it would be it would be strange to say that the board would effectively give deference in deciding what is a substantive issue of patent law that would be inconsistent with this court's  observations and kusa at seven ninety three f third at twelve seventy nine that while from those in comment rule making you can do procedural things that can't shape substantive patent law and that's a point that this court made looking at an earlier statute in cooper versus do making so i think it be inappropriate to defer to the board's decision here but in any event even if you do it's ultimately unreasonable and the reason it's unreasonable is is twofold mr prowlers relies again on this unpublished obscure decision  the harvey i don't think think that given the supreme court's decision in jama versus ice which says court of appeals decisions can be can be too obscure to recognize that there's a consensus on what the language means that you can rely on that and even if you could congress was executing a fundamental shift in going from air parties re exam to inner parties review it was moving from an examination system to an adjudicatory adversarial system and  collateral stop is the kind of thing that applies in these adversarial proceedings and that brings me my last point mr powers suggest that that that it would be that that collateral stoppel itself should not apply that's a that's a that's a shock king proposition given how fundamental that is in the case law it is inconsistent with what the supreme court said in b and b hardware and it is inconsistent with what the patent office does in every other context where applies things like collateral stoppel judicial  and notions of even prosecution history which are effectively a form of a stop will the board applies when doing claim construction in these cases so a sign or sample should apply issued bar a wrist as arguments and the decisions with respect to the five nine