board from from doing it in its back and saying we're going to be of examination because you've raised a good argument your honor if the question is could the board obtain this this is a similar result i think that's something that filed the government agency will say you know that's a good point we'll take it back and reconsider and they'll they'll you know cancel the procurement or the like and really examine everything that what they can do and what they have to do once it's carried through but it doesn't prohibit the p t of from moving the people by saying we're going to revamp and this rigs and i know as a term of art i'm not using it correctly but they're go that point you get to go to a neutral arbiter the board and get a ruling on those rejections now we don't disagree that the patents that the examiner can certainly ask to reopen and can suggest that to the to the applicant and indeed that was the practice holding was wrong your honor this report discussed that in its decision we don't think that was ultimately the basis of the judgment i would direct the court to pages one in page five of the appendix the judgment was for lack of subject matter jurisdiction and so that's what we were required to  reason why there is not claim preclusion the other is simply that the claims that we're at that we've brought in this case does not exist at that point because the p t o had not yet acted on mr hyde it's petition for rule making this case is official challenge there was no official challenge in that case i don't think there could have been for the challenge to the agency's authority to to to maintain a particular structure to regulation the rule you count the whole you're challenging more than six years afterwards issue yes you're beautiful right it seems to me and i think you may have it right but it seems to be a very odd proposition of wall that you can a statute of limitations by just saying revoke that the law regulation and then it starts the statutory limitations to maybe not so we might be stuck with that but the ninth circuit has this reopening right yes your honor what's the rationale for the russia now is that an agency should not be able to hold out indefinitely in a regulation for which it lacks statutory authority have to go through and as a challenge if it's within the period for filing a facial challenge but why when the period for filing a facial challenge has expired can you remain a factor a new statute of limitations for a facial challenge just procedure that the nicer it calls for in that case and that led to the posture of the case here and we gave the agency an opportunity to consider arguments and consider the validity of the underlying procedural rule the agency opted not to undertake a rule making to revoke the rule that gives us the right to challenge that determination in district court and i would say you know consider massachusetts versus p p a you know parties have a right to palpitations for rulemaking for agencies and they have a right to challenge the basis we have to try to file rulemaking petitions with is that it is sort of doesn't matter in this case because if if the court correctly applied the track doctrine this court has original jurisdiction over the issue of the issues in this case and if the court incorrectly arguing that it is polluted by an earlier decision and it's untimely and we wait a minute you're saying it's untimely under twenty four and one but you're saying the district court doesn't l subject matter jurisdiction because the time for can i ask you this and maybe this is a little unfair but are you what is the government's position this is a very complicated issue what may be more but there are at least fifteen right now and that's their full time job it is examining mr horowitz applications and the requirement which had to open reopen prosecution and some of those four hundred applications to be applied consistently across the board is what's allowing the p t o to move forward and examining his application so this is a very good example of why it is important and necessary that the u s p t o have authority to reopen so certainly an interested member of the public can petition for rule making and have that reviewed by a court the problem is that you cannot use that process as a way to either collaterally attack ongoing u proceedings which we believe mr hyatt is doing here or as a back door to get to the the process of implementation of something that is bring in a separate collateral attack in court against ongoing proceedings you have to wait until the ongoing perceiving start that you need help in this instance i think that's right yes i mean i think the track doctrine addresses a similar concept which is that the court that has alternate authority to hear and of appeal should be hearing any sort of interim decisions about their later authority now yes i think so one thing i would quibble with is that a party does have to bring their their issue to the agency in the first place so they can't just bring it to a court without having petition the agency that it seems to me that the president overwhelmingly says that those are time barred and are capable of reopening under this reopening will be the ninth circuit house that's exactly right but do you see any way around the ninth circuit precedent on this kind of reopening procedure when the attack is an altar of virus one that goes to whether the regulation is is within the agency's authority at all because i've read all those months or a few cases and it circuit law is certainly messy on that point so the northwest advocates case which i believe your honor is referencing it relies on wind river which comes out it seems to me the opposite way so ultra virus that is something that would be reviewable i'm assuming that you disagree with me on it being a collateral attack on the agency's action well it doesn't i mean it certainly there are collateral aspects of that and if he was arguing that we should revoke and cancel the agency action and reopening prosecution on the claims i think he'd be in trouble i mean he's already and he has argued that just to be clear yeah well i mean we particular action by any examiner that's it page forty eight of the appendix further to the idea that in the very likely result as even if we rule in your favor on the statutory the narrow sash very question that's at the p t o decides you already raised and lost as you  applied in that particular case you might be collateral estoppel going forward in those cases your honor we might be if that's the way that issue turns out we obviously disagree but if i did i'm just trying to figure out the process i mean if we rule in your favor then you're that court rejected it this court rejected it sure but in that case i mean it was a timely challenge it's well accepted and when a statute issues it and somebody can come out with new rules and regulations people that are going to be affected by those rules are are going to authorized for bringing these types of challenges if i could briefly i'd like to turn to the supreme court's decision and steinmetz it's our view that it is the opposite definitive and binding interpretation of the of the statutory provisions that issue here so  recognises that appellant's have a right to bring their it kills i'm sorry that applicants have a right to bring their appeals to the board and that the p t o has a corresponding with the court called a ministerial duty to allow appeals to proceed to the board we think that decision is completely binding