it could your honor create an opportunity of the beard for abuse but the appropriate way to address such of such an abuse would be to bring it to the attention of congress and allow congress to decide whether or not three fifteen b as written and needs to be amended in some way as written your honor i think it reflects a balancing of the public private as well as institutional interests the congress took into account in coming up with the precise language that was chosen and the precise language that i think is most important here is the fact that congress chose to trigger the bar off service of the complaint not based on any downstream event in the litigation or contingency  cases depends on what purpose the melody is so in the case of the graves and donegal decisions that i think the office has cited to support for this proposition the question was whether it if you drop that then it just doesn't count and time they run out we don't have that we don't have a voluntarily dismissed i q our petition to initiate an i p r we have a voluntar triggered but nothing that goes to whether service of the complaint which would serve the notice function would would be negated by some later event and in the course of the later proceeding so a certain period of time it's some action that a limon ates what the statute says is the cock starting of it and i'm not i don't think i've seen a case cited to us that that whatever i think a lot of this goes to the existing legal backdrop against which congress has legislated and what i what i would know because i do understand that to be the office's position the the canon of statutory construction that congress legislated against a particular backdrop can't be used to impose conditions or limits where the statute is clearly spoken to what those limits are that is there and if there were a general background legal understanding that in a situation like this then probably that could easily be that that incorporated into it i guess my what i keep focusing on this whether there is such a general legal background principle for in situations like this your honor we would disagree that there is such a settled universal existing legal background in this situation that we've we've explained in our brief that the cases relied upon by the officer are to attenuated in terms of their fact patterns to sit squarely to inform that and we have also cited cases including the flyers decision where it's not an already purposes of triggering a statutory bar so given sort of the the possibility of abuse the answer go to congress is there any other comfort you can offer about one comfort perhaps would be that it's there isn't a record here from the office or otherwise based on investigation that would tend to show that these types of abuses are either prevalent or a major policy concern at this point they remain on the record we have here  that makes any difference and by that time presumably whatever congressional purpose of making sure that the defendant understood what you were really claiming and therefore could shape an appropriate  petition you know when you're going to wax and presumably that have been satisfied does that matter to this at all i don't think it necessarily governance the statutory interpretation of the text itself but as background to this case that's correct your  matter for purposes of deciding this case whether the when your clock had run or or had i think it's important to to ensure that the letter of the statute had been satisfied and in this case there's no dispute of fact that the petitioner leona was served effectively improperly with a complaint alleging infringement over two and a half two years before deciding to and filing its petition for in her party's review so i think so it is it is decidedly functional your honor and so to go from one shape in the prior art to a shape that's not in the prior art for functional reasons would not be a design choice for getting clean fourteen of the one six six patent this dependent claim requires more than a fitted full support having only a single axis of rotation as distinct from the independent claim thirteen this requires an enlarged hole having a loose suspension and that allows for additional types of motion including non rotational motion and then finally with respect to claim thirty four of the eight six nine patent the petitioner leo never specified in its petition that the proposed combination was to remove the entire gamble and quite the opposite  beyond relied on the gamble to teach an element in the very same claim and that set element number c at appendix fourteen twenty four failure to specify how the priorities being modified is a basic legal deficiency the argument is not never been served and good like i can ask you i mean i think you understood from listening to my questions before the cases that we decided and at least the other one sided with there were a few that i think of completely irrelevant but they're all about the dismissal of the filing of the piece of paper that initiate the proceeding that is then later attempted to be initiated where the five of the piece of paper has to be with in a clock and  standard rule is you just ignore that and in deciding whether the later filing comes within the time we don't have that we don't have a voluntarily withdrawn by p r petition we have a voluntarily renders that whole proceeding a nullity and there are other cases we cited one that talks about things that happened in that proceeding like i think in that case it was a waiver of sovereign immunity  that was another reason or what's a jury trial right i think no i did i forget but i know it involved sovereign immunity waiver by the government and and and so the court held that the that what happened in that proceeding doesn't carry over and there are other cases from other circuit courts that talk about for example issue preclusion can't apply because right nothing happened there was no right but that seems to  again in a different kind of context because the question is what does without prejudice mean and without prejudice is connected to matters of preclusion right i am not sure how you get out of rule forty  race is the event for purposes of starting the clock logically i mean what what's and that's not what what's happening in the in the as you say that the cases that involve something different that used language that may be bro than what they involve well the statute of limitations is not dissimilar from that where the of where the starting of the clock is the event that happened and then the clock stops when the initial complaint is filed and then that hit that is dismissed without prejudice that the clock then is considered to have been going the entire time and so it still because the start altered the starting of it right because the case that was filed that was dismissed without prejudice has no effect and so it's about that case having no effect and that's where the only exception are is pointed to and i point out that some of the cases that women are cites are not don't involve dismissal without prejudice the only ones that involve dismissal without prejudice are either the situation where the particular statute or rule issue explicitly talks about just missile without prejudice or where it's the court reopening the case itself to for example deal with rule of and sanctions or something that happened in that particular case and that is very dissimilar from what's from any of these starting type cases including the statutes of limitation and including a case like this which i agree is not my dentist hachem attentions cases are not clock starting cases they are clock stumping well but they're but they're still about whether that case has any effect for the purposes of the clock and so that's the where there is this background principle and we haven't found any cases either that involve clock starting precisely like this but that doesn't mean that the principle isn't broader stuff but i mean you have quite extraordinarily plain and unambiguous statutory language it seems to me to to overcome that you need to be able to point to you know reasonably strong on point legal background to say this is like that and therefore you really want to depart from the statutory language and i guess i'm having trouble seeing the strength of  background when there's doesn't seem to be cited a situation that really maps on to this just some broader language for a different situation well it's not our language that has been echoed by nearly all of the courts of appeal case that was filed or what happened in that earlier case including whether there was a service a process including whether there was a waiver of sovereign immunity or things there was another one involving the legal relationships situations where a lot of effort and energy and money have been expended in the original thesis the the before the i p r petition was filed that we're not going to allow people to part of that the purpose of the more near bar is to make the accused infringer at some point along the way after they know the sort of lay of the land pick a venue and and it's either in the district court to challenge the validity or in the i p r proceeding and a fully agree with your judge take in the questions you were asking earlier about there's certainly room for gamesmanship if the rule is the opposite where the pentagon can go out and do many possible infringers drop all of those suits so nobody has to spend any money and then start everybody's clock and then once they're back in the position as any other member of the public would be they now have this clock running that nobody else has running and that seems like a very viable moglen well your honor it recites an hourglass particularly with a wider top and bottom and narrower middle and that is in shuffle does have a wider top and bottom and narrower middle but to the extent that it requires tapering as women argues that certainly would be an obvious design choice and there's no question that the the shape of an hourglass was no and so happened all that the patent specification says is that an irregular shape affects the air resistance beneficially and so any irregular shape including an hourglass or some other irregular shape could be said to affect the air resistance beneficially but there's there's just nothing that makes this particular shape that's drawn in one drawing limited or the only one that can have this before the military dismissal of us did it doesn't matter because the because the way the statute is written the board is looking at the situation at the moment it is deciding whether or not to institute and that moment  the board knows whether or not a complaint has been dismissed without prejudice or not so it so sort of what happened before if that proceeding has now been effectively wiped out it doesn't matter how long that proceeding was pending befor were in that before it was not a lot there before the district i think it was a few months maybe two months or something before the dismissal with prejudice without prejudice there was an amended complaint filed  and amended complaint and and there was still a pretty long calendar before anything substantive was due when when the dismissal happened then it was slightly more than a year after it had been filed but like i said it sort of gets washed out regardless of how long it was pending because it was dismissed without prejudice and everybody is then back in the position of so the alleged infringer is back in the position of potentially being on the hook for him for infringement but potentially not just like any other member of the public who could also file an i p r petition you do with one line of supreme court cases  must be i mean we think that the statute is actually clear that it it includes because congress legislates against the backdrop of existing case law and there is this existing case law the the statute is actually intended to include that backdrop which which says that the dismissed without prejudice proceeding  it's so even if the word seems clear on its face and given this backdrop it then is interpreted in light of that and so certainly if it were clear and there were no case law and then there's no ambiguity to decipher but it seems like here it's either clear or to the extent that there is any ambiguity it was certainly reasonable to just to pick up on on what judge sharana just said and in terms of the statute being clear it's not reasonable to infer that congress overlooked or simply forgot to address the effect of dismissal on three fifteen b because if we look to judgment action and the automatic stay there of and in subsection c congress said the effect of dismissal would be to lift the automatic stay so read in context it's not reasonable to infer that congress was simply overlooked the conditions were or exceptions on clear statutory tax that would effectively allow the office to arrogant to itself the authority to conduct in her party's review or congress has expressly limited the availability of dinner parties possible scenario but there are counterfactual scenarios that cut the other way against pattern owners one of which we mentioned in our brief at page twenty five of our opening brief you know that a petition that's denied institution is time barred under three fifteen b because the petitioner filed more than one year after being served with a complaint in an ongoing infringement action that suit gets dismissed and then the petitioner is able to circumvent the statute by refiling their petition using voluntary dismissal as a tool to the existing suit as an elegy and then go back and file the petition again even though they would have been barred by statute otherwise there are there are other scenarios there's there's possibility for damn sure but it only underscores the fact that congress did interests on either side of the con of the equation and arrived at the language that they decided on to go back to the merits judge florrie there is evidence in the record both in the specifications that the pendulum shape is functional that's in the specification column which appears at appendix to thirteen columns eight lines of forty to forty six and i think there has been some discussion about it already but air resistance is controlled using a more irregular shape such as an hourglass shape and hourglass shape is specifically identified as a shape that would have the functional advantage of controlling air resistance and the there's also evidence in the record from the owners expert at appendix three thousand five hundred and five to three hundred three thousand five hundred six addressing why the shapes and shuffle would not have the same functional advantages as