thank you it may be the court my name is robert logan i represent synopsis and its appeal from the district court dismissal of synopses a p a action do you agree that if the we hold in the second case that we can consider your claim on the merits with respect to the final decision that the e p a case fails because you have an adequate remedy we do concede that if the under review of the final written decision this can review the legality of awfulness of the regulation and the related policy and practice of issuing partial finery decisions that that is an adequate remedy which will preclude a p a p review now you're confusing review under section three nineteen ok so let me rephrase my question do you agree that if we entertain your challenge to the final written decision in the second case that you have no e p a claim in the first it would resolve one half of our a p a complaint our complaint challenges two aspects one the levy of the regulation of the partial grants second the related policy and practice of issuing final right decisions that relate only in part it could be that as you address in your final read decision review the legality of the of the policy in practice of issuing final decisions that don't address all that you said to me that the second case doesn't involve the decision to institute only involves the final decision correct correct ok so is that an adequate remedy with respect to your challenge to the regulation or not it is it is not as to the regulation but add to the policy and practice of issuing final read decisions that only pertain to some or not all of the claims it could be that in your decision in that regard you address some of the some but not all of the clients i think were diverting you from the from the merits of the issue i think we all appreciate it that the particular question of review ability could have been raised in various ways and i for one don't think that we want to require you to make a concession at this stage that hasn't been made we have been separated peels because we're filed we need to dispose of them we may very well say that  final decisions we are challenging vocally in the a p a complaint we are arguing that they have no authority to issue the partial grants of the person institutions on the petition and that there is the related error that they have the do we think is address the error and on the final decision under three nineteen and review the final decision and then go ahead and also address under the a p a and you can do so here today the validity of the regulation because the two institution we are like in the supreme court mcnairy case there was a statute which limited review of the determination in the words of the supreme court the government argued there that it was clear and unambiguous you cannot review the term a determination there of whether you are a special agricultural worker except for under the very limited review provided by congress and the supreme court said that's fine but you have or do under the a p a two challenges as the case here to the legality of the regulation and the policies including the the infringement on this court pointed out there were multiple other avenues congress had provided for challenging the validity of the patent and that those were adequate remedies which precluded  so here the question is where can this regulation be challenged going to be challenging the a b a we're going to be also resolved under the final rate decision for me return to that to the merits of the of the regulation and practice i don't think that's a full answer to preach because decisions cannot be squared with the plain language of three eighteen a this court fact vs crap decision explains that there is no merit to the argument that the word including the word any provides some ambiguity that gives the court where the board  some authority to to interpret into any to mean anything but all and every also if you look at the prior statute which he replaced section three thirteen there congress  provided authority and the reexamination to focus on a particular question at three eighteen says if an inner party's review is institute is not dismissed then the p t o shall address every challenge client why consequences and the consequences is that the board then needs to issue a final written decision that addresses any claim challenge by the petitioner so they can say that when you're granting you're only granting that certain claims and that the final decision only needs to address those terms of the petition it defines what goes into the petition as claimed challenged in three fourteen and says you examine the claims challenge to the petition to see if there's at least one claim that may have merit and then what you do is you then institute review and three eighteen it's very clear that when you do institute review there shall be a mandatory authority requirement on the board to issue a decision a final right decision as to any claim  challenged by the petitioner the government try and mentor try to rewrite that provision but the plain language here controls moreover their plain language is fully consistent with congressional intent the intent here was to try to displace district court litigation and when you pick and choose which claim to have partial grants and park decisions you're completely undermining the effort of congress to achieve to displace that litigation and said you have dual track list of litigation and board proceedings at the same time the key is that three fifteen which provide the stoppel and preclude the district court litigation is hooked to there being a final written decision so therefore the final read decision is written a very broad term you need to address any claim challenge by the any claim challenged by the petitioner is now before the board and we're going to have a stop will answer those claims and once you have a stop with the claim that precluding the district court litigation when you have so the world invasion by a mentor and by the government you have partial grants you have some claims which are being granted some are denied and you have the district replication is not going to be state you can have burdens on the parties to proceed and both then you so and so our position of our reading of section three eighteen days as to barring these partial grants and all decisions is not only fully consistent with the language of the statute but is also the the reading of it which is most consistent with the intent and purpose of congress the whole purpose here was to displace district court of litigation question is what goes in the final written decision no question to me really is is it consistent with the statute and the purpose of the senate which is i think everyone also agrees to replace district court newman than that by deciding only some of the claims and having a stop only applied to some of the claims of petition your inherently going to have the district court litigation continue and you're going to have this dual track before the district court and before the board with which is  those claims and then proceed in the district court which won't have is this dual track it gives them under section three fourteen discretion as to whether to grant or deny but then there is a legal consequence when they do find there's one claim of sufficient merit and they decide to institute there is a legal consequence that then under three eighteen they need to address it have a final decision with addresses the patentability of any claim challenge by petition it says once you institute you need to issue a final rescission with respect to any claim challenge by the petitioner we think that's very clear that that means once you institute you don't have discretion to address only some of those claims and issue up a partial decision so you have  the institution as to all of them and you need to issue at minimum you need a final written decision which addresses any patent claim challenge but that is the plain language of the statute which which controls here even if there would be ambiguity of looking at three fourteen on its own they having this split the atom approach or not to place in the litigation so it can be completely consistent with the intent of congress to displace this record again but also part of that legislative history is the old statute if you look at the old version of section three one three congress granted express statements in the in the in the reports of congress and the legislative history that they're replacing a statute and wiping it out which would have granted them this authority and saying it said no you're final bring decision you don't just address particular claims or particular institution most all claims if there's no district court is that once you've got a decision in the final right decision and all the claims are addressed in the final written decision then there's going to be estoppel under section three fifteen which will preclude litigation or really the geisha about those and the district court if you don't have that then the claims they did institute on are now is or can continue in the district court or in the future can be subject to claims because there is no stop the point was to have petition has to those claims that are subject to review and they have that if there is institution we get finality as to those claims under section three fifteen three fifteen is really the driver of the congressional purpose here is to get  challenges regulations and so far as it permits p q to institute review only with respect to some of the claims covering the petition and that's not an issue which has involved a second case from any of the specific grievances with the institution to say when you told you there is there's this complaint doesn't give them standing and now i want to point out the actual complaint filed was focused on the regulation but only in so far that affected synopsis in this particular institution decision and if you look at a thirty six they could not have been clearer that the final agency action they were relying on in this court i think they're very candid that the only injury they have in that institution decision and what they plan to do is to go out and get a different institution decision and that sort of complaint the actual complaint here where you're upset by a particular institution decision and you want to get a different line that runs straight into three fourteen these final and not appealable bar what they're trying to do is appeal by a different route that institution decision will get given the benefits of that perhaps most felt they needed to file some sort of protective of who would take a protective pass because of the novelty of everything that we're looking at with the americans and you don't look at those merits on that complaint because this is that this is a this is a and run around three fourteen bar to fourteen days of bar an institution to say well all right it could see it could very well be that this particular their opening brace and this case the nazis did not breach the merits fte their only pitch was we get to have an a p a challenge they did brief it in the case that's up next and so i'm going to defer to my colleague colleague has adopted in terms of the opportunity of the office and the right of the office not to decide all of the claims you want and those sorts of merit can never be challenged under the n b a no your honor we're saying they cannot challenge it because they're only injury here is a particular institution decision we are not saying and i think it's a mis characterization that's not the snakes that no one could ever challenge this regulation what we are saying is that you have to have an injury you have to be trying to get something that is not a different institution decision now if somebody brings that complaint under the a p a we're not saying that there is some sort of broad bar on judicial review of this regulation at the behest of any party at any time but what we're saying is that your injury has to be something other than a particular institution who would have an injury which would allow them to bring in a well i don't want to speculate on a potential complaint but i might have my understanding of your theory is there isn't anybody who would do that in order to have standing they have to have a case pending before the p t in which claims are being challenged and i don't know anybody who has a case pending before the p t o has to litigate in the p t o and not in the district court so it doesn't say to me that you're leaving room for anybody to challenge the large because the a stoppel effects are not as fully effective as they're supposed to be if that's true and some pad owners group said hey we're getting hit with suits later writ large this regulation the mere existence of this regulation on the books appeal is that this rule hurts us even when we're on the other end of these petitions when we're the patent owner and so if that's true if somehow patent owners writ large are being hurt by this regulation separate and apart from any institution decision they may well be able to bring an a p a claim our only point here is you don't get to take your dissatisfaction with an institution decision replayed replete your complaint as well i'm not dissatisfied with the merits i'm dissatisfied with the underlying policy agency decision strive to be consistent with their decisions in any particular case are almost certainly going to be undergirded by a policy if not an actual regulation if people are unhappy with their decisions can art plead claims say well my injury is this institution decision i'm attacking the policy underlying that institution decision i get a p a review we are going to have the kind of bifurcated district court route versus federal circuit group and as we all know the a exclusive jurisdiction to this court to review final  if there are no further questions have used the court robert long representing the mentor graphics corp mentor graphics is principally concerned that this a p a action not be used as a backdoor method review can only be reviewed by this court so the district court can possibly give so not just the relief that it set out to get which was to reopen this particular inter party page review and so god well it's so so long the marriage was what i want to be i want to get to the merits very quickly but i do think there's a standing question once an optimist as i think it's now so it is ok we have met we can't get the district court to order the we think the statue authorizes this regulation section three fourteen a a that's the section of the statute of the institution doesn't say anything about the board just institute on all claims in the petition or not it just question is it not whether assuming that a same surely erroneous regulation is adopted in connection with the decision to institute i thought i heard you say your opening remarks that  particular decision to institute or not institute i p r that's the problem here where the and the and the plaintiffs would have to show an injury that can be redressed so for example if there were an organization that suggesting to george start there could be such a party i don't think this regulation is insulated from from the review by this court but we're urging us not is that it is insulated so you don't join with that is that correct well i'm not sure that's exactly the patent office position but our position is there is a clear review on their two there's two separate questions here the initiation decision and the final decision with respect to the second case they agree they're only challenging the final decision we'll get to that we'll see but is is in the a p a case is this other aspect of it they say they're challenging the regulation in so far as it allows an institution with respect to fewer than all the clients that is not an issue which can be litigated in the second case so is that but we think it could be challenged by somebody else for example this group i was hypothesizing that files a significant number of petitions for and for hard things review and could say look we can demonstrate to the court that it is like and imminent you know within the next several months or so that we're going to have one that's that's going to be granted only in part because we do a volume business and i think they put it in that situation they would not be challenging particular decision to institute a day there in that position they say they are also a patent in that they have cases like this before the p t o and well i think if you look at the p p o s brief on this they patents would be the most logical challenger i mean i don't know if this organization exists a public interest group that wants to clean up patents and so was filing a number of petitions for enter partridge's review because we think these are bad pat they need to be canceled so that that's the there is their claims that they have raised in their briefs are don't count for standing for you know for the reasons they proceeding the government points to the supreme court lion case where the choke hold it was over and can you now seek perspective and declaratory relief from the supreme court said no in contrast here we have an ongoing case the chokehold continues the effects of their decision to have a partial grant and a partial decision here is having ongoing effect in the three seven six case when they did on appeal over the challenge are standing for the first time we pointed out that we are a player on this in multiple cases including at least six cases as can owner and these this regulation and this policy also affects the known or it deprives the patent owner from getting a stop will effect that so that we claim so when a petition there we claim what should happen is there should be a decision in the final round decision and the patent owner should get a stop with the fact over the weeks we claims instead under the government's position the pan owner suffers as well because they do not get that a stop will effect so we have ongoing injury in three seven six decision and there's no stopping the pan owner benefits from having those codified in the final written decision so there stoppel to any district court litigation challenging the patent on those grounds after the argument that we didn't challenge regulation and policy in our complaint i don't think that can withstand even the slightest bit of scrutiny in our twelve page complaint every single page we are challenging the ability the regulation and the regulator of solidity of the policy and practice of having partial written decisions the fact that we have the true the twenty in terms of standing only alleges injury resulted from the p t o case which is the second case before us today that is the what we focus on for injury in that case if the government make a factual showing it regarding its injury here we have pointed to court documents showing that we have where we are a frequent player in this in this field on both the challenging passes and as cat owner and we have in the three  because there is no other adequate remedy right and if if there is as judge cite sorry if this court can reach these issues in the final written decision we would concede there are definite adequate remedy which would displace  whether there is judicial review of this regulation and policy in practice and whether it's before the a p a for this court in the eight hours before this court upon final written decision but what can't be the case whether there's an adequate remedy is dependent inconsistent with three eighteen a that takes that out of our complaint and you have an adequate remedy is to that and if this court goes further and says and what the animating is this is invalid regulation and that needs to be struck down as well that would be an adequate remedy which would preclude the regulation dealing with institution in the second case right we are not your honor it i'm just pointing out that in your decision there you can could find out what's animating the error there is this invalid regulation and speak to it there  they're relying on their regulation that regulation is in conflict with three eighteen a i think you would have authority to say that on review with a final written decision and all these arguments are before you between the two sets of cases and i think a judge newman has a right this is a pragmatic