last summer specifically in my case agency discretion does not preclude review of and i quote the procedures the agency followed in rendering its decision that included not case and agency policy in my brand concerning the docket case what the supreme court said there was that even if the ultimate determination is within the discretion of the board it is on all the agency's actions and in other areas of the law we have a special situation here where there's a non appeal ability rule which the supreme court in click to call that applies to the very kinds of issues that you're raising but we believe that the department of homeland security case is the one that controls here and it is not the determination that we're killing there is still a new and constitutional review under department of homeland security regardless of whether or not the ultimate determination of that issue there has to be unless congress says that there is not review ability of a constitutional question both a p a and where the where the agency has a policy or procedure in place and must fairly apply that policy or procedure regardless of the ultimate discretion that the agency has over the decision so everyone made the decision which is challenge for failure to be consistent with earlier agency rulings raises a due process issue i don't know that everyone would but i think we certainly have miscast in this case we have a policy or a presidential decision and specifically looking at the i believe it's the the webster and decisions and webster the agency's own guidelines o missed the due process issue i don't know that it missed the due process issue but we're raising due process here under the specific guidance from the supreme court and the department of homeland security case where it's a due process issue may be raised as at with respect to the agencies the agencies procedures regardless of whether or not it has alternate discretion or not arguing here that the agency must be told whether to clarification of what you're arguing on the due process violation i was a little confused by the breach s a s that was your due process argument if you do process five lation predicated on the fact that the did one thing with respect to s a s and didn't the same thing with respect to the valve corp case i was just confused about what impact or why you thought that what the board did in s a s somehow affected your d anticipating what the arguments from the u s patent office would be specifically that institution decisions are not reviewable we raised the s a s issue because of the contrast specifically that it is clear that decision that the appeals court can rule that a procedure was not followed properly and therefore the board or u s patent office has to revisit its decision on institution the fact that the patent office did so in this case confirms that what we're requesting is in line with us but the due process in a p a violations are not the contrast between what was done with sas and what was done without the due process issue is the proper and i quote finding agency authority concerning major policy or procedural issues or other issues of exceptional importance so i made a general plan i think some say let me just interrupt because the time is short so you're i'm just trying to understand your argument you're determining whether or not to deny follow on petitions regardless the discretion the board has and that the policies under general plastic say that under those doctors you can consider prior filings by either the same petition or  related petition or including co defendants that is exactly what philip harder to argue that general plastic should be considered because there were prior filings by a codefendant specifically microsoft customers which could join  litigation to affect the board and or the panel in this case that we're not going to consider general plastics not regard because general pastika only applies to where the prior petition was by the exact same party valve confirm that the panel in this case was absolutely wrong val said the us p t o policy is a general pastika blast not only to the where these prior petition or by the same party where they were by a related party and not related party in this case maybe co defendants valve also confirmed that that had been the policy all along so the due process problem here is the general plastic policy which the left asked for application  was denied to it based on a faulty application about policy that and your this is jerry trust again and your view is that there's no burden or onus on the petitioners part to either make that argument since the pet that they my understanding is the pending before the board the board issues decision like eight days or a week or something after the valid case issues so it's your view that the office argues the run trop case in that regard i think there are two important distinctions st and foremost in that case that the that patent office wrought upon the issue concerning the jury instruction in that case was no indication that it was ever raised what requires preserving the right to appeal is that the issue be great the issue here is the proper application of general plastic which phillips raised and asked for the proper application the proper application was the not possible would certainly be a stronger i would be not a strong argument but the valve issuing decision here was just case law that confirms the phillips was correct if we reject your argument that there's a constitutional issue here do you lose under click to call on the initiation issue no i still think there's an a p a violation that's both due process and a p a in this case that you know if there is a a violations are not necessarily precluded argument is that that this is primarily a due process concern but it also might be an a p i i don't think that is a problem the issue here is that what they what the u s pat security case both constitutional issues can be raised even where the where the agency has discretion answer my question are you saying the click to call does not apply to a p a violations i don't believe so your honor i believe but to answer your question more specifically we do believe this is a due process concern the procedure that the u s patent office articulated in general plastic was applied unfairly where it was a different party but the patent office is procedure was to do exactly that thus the philips and in this case was denied the very u s policy that the patent office at mid was incorrectly applied essentially and back and it's the admission and val not the existence of valves which is critical to this case does all this is judge wallace i want to thank you off the subject for restricts touch gestures to a single meaning within a particular case and such that quote each application to be run as an internal quote would use its own gestures between commands where in the record i don't have the page pacifically but maybe if i can understand the basis for your question back and asked a more fully waiver well the i don't think there could be wavering this issue where there was never a proposal the institution question on the due process issue here there's just no colorable due process claim the board addressed phillips arguments and disagreed with them but follow the factors laid out in general plastic and approached general plastic as if the question was whether the two parties should be deemed the same petitioner so so still addressed whether these two parties are coordinating and then on the the questions the court was discussing about  indicate that it won't override other statutory commands so there's the statutory command that says under section thirty one thousand four hundred and thirty the decision is final and not appealable the institution decision and then the a p a says that it does not override the enabling statute so the patent act would would be the sort of primary statute that preclude two says that when something's committed to agency discretion it's not real well so i just wanted to sort of tie those two things together there's the a p a on one hand and the patent act on the other hand but they sort of work in quote did qualify its decision by saying that it needs example of the effect of three hundred and fourteen d the exception might be appeals that implicate constitutional question and you're right that our position is that this doesn't rise to the level of a constitutional question an example of one that might be if the agency said we're declining to institute your petition because you're a woman x is why and then the next a decision that comes out says absolutely the contrary we take it back we're reversing our position x does x does not equal y or whatever the reverse of that is is that a and then the board completely versus i think that definitely is a different case from this one where here the board addressed the argument that philips made that that microsoft each other and we don't find that they are the board says we don't find that they're the same petitioner after sort of analyzing whether they should sort of impute them to be the same petitioner which is exactly the analysis that valve decision sort of clarified later on that should be in deciding whether to petitioners have a sufficiently close relationship that they are two parties have a sufficiently close relationship that they should be considered the same petitioner so i think that's a different case i also think even in that case it would still be hard to get around the review bar of prize case the quick the call case which where actually that was the very situation in that case so in that case the board had come out one way and and then later on the agency reconsidered its position and and issued guidance coming out the opposite way but the supreme court still said well it's still not something that the courts are in a position to review well your recollection may be better than mine but i'm quick to call that reversal took place later wrong right not while the case was pending before the board to change its position ok that's true but it still is you know the the follow that address the question of what the board is supposed to do with there's a new presidential opinion on point that issues pending the boards the pay to a particular p t penalty review are any guidelines on that specific point i mean certainly those parties the board sort of relies on the parties especially post you know the institution question was well out of the way when the valve decision came out and so the board relies on parties just as a court would to raise an issue that you know might implicate the earlier institution decision so for  example the board does have the authority to withdraw its institution decision if a party comes to it and says look this later guidance came out or later precedent of the piece had came out and you need to apply it here the board certainly can apply the later guidance and withdraw the institution but if the issues before the board issues the panel opinion is  not obligated to follow that decision irrespective of whether or not it is brought to its attention by the party well i mean i think it would be a closer question if it was an issue that the final decision was going to address here the final written decision doesn't address the institution question at all because nothing about the institution question was raised after institution w the the board was not sort of thinking about its institution decision when issuing its final written decision on the merits of patentability here there are cases where parties do raise institution oh absolutely not you're right but i was just answering the question about whether the board has any obligation to address a decision that comes out of during the course of the proceedings proceedings and i'm just saying that in this case where it was a decision only about institutions that there was certainly no obligation to sue a sponsor find it and raise it and analyze it without any prompting from parties i'm happy to answer questions about the merits of the case or about the more about the institution decision or i'm happy to yield the rest of my time colleagues anything for the ly do that not only would that be arbitrary capricious capricious but it would be manifestly unfair with respect to the process and that's essentially what happened here philips asked for the correct application of the board's own general plax plastics it's a procedural due process violation a mere application of law i don't mean mere in terms of it's not significant but i'm this application of law without more is a due process violation is that your was inherent in the board's policy which the board itself stated was to ensure fairness due process at its heart is about ensuring fairness of the process if the agency had said this is our policy for ensur institution three it was about determination of institution this is about process and a new department of homeland security case process matters and it can be both a due process violation