particular side or i mean basically the court said conduct the procedure not inconsistent with this yes yes your honor i do believe that the the dell vs excel on first opinion gives the p tab wide latitude however since that time that opinion has been cited at least eight times to my knowledge and we do have some clarification and we believe that those cases have gone further than giving any sort of latitude but i didn't this question i didn't see the board and shelby if i'm wrong as having understood our prior decision to limit them to not allow them to reconsider hip if they wanted to do you do you believe that the board was under the misinterpretation that we were limiting them want to remain and then not allowing them to to consider it no you're not i'm not saying that the opinion from this court gave an express limitation what we are saying is that the board understood themselves to be limited correct your honor i am not saying that the board was instructed or directed or compelled in any way by this court this court's order to do that what i am saying though is that the later decisions that have reacted to the your opinion and excel or on one have gone farther and said that it is good public policy it is the correct procedure to not ignore evidence that is already before the board and to go further and so drawn or no i'm not saying that that opinion by sight in the area the permissive language in the last two columns of the opinion it was very clear that the board had latitude and i and it is our position that the board should have that latitude the cases though i believe divide into two groups if the board decides to not consider new elements so the supreme example of petitioner tries to put in new evidence or a new theory of patent bill if we believe the board is fine ignoring that and going figure in one of the existing records in the s a s case the board adopted a new claim construction on final decisions in those cases this court said that the dull versus excel or on opinion the first opinion requires the board to some new fact so we the board would have to do something that n s a s we wouldn't have to do which is something like we are our normal rules what's what  was a reference to the mickelson reference was before that it was in evidence in a record right and the figures eighteen exactly and they pivoted to figure eighteen and they said this is a better but better example this happened very late in the game but once again this court said notice or clear on a matter that is obviously in a balance of policy sufficiency for completeness of content as to which we don't get to make that choice the agency required for a full in true disclosure of the fact that there are but that's all the description of what went wrong not prescribed for what must be done not only met all right damn that the what went wrong is and if you don't do that me why it's wrong to think it is obvious that there is an efficiency versus efficiency expedition versus completeness tradeoff that's a trade off that we don't get to roughly agree with your characterization and i am not here to say that this court has ever adopted a rule that prescribe any sort of weight weighting within that choice i'm here to ask you today i think for six dollars on one was an interesting vanguard of a case in the sense that it was one of the first to come out and go back on remand since still vs excel or on one has come out i think that when the context is that the board is exploring new material the right procedure in that balance that you're speaking of is to take additional material i don't have any language of a case that this court has issued that says that they must the close to scums is the u s a s case when it instructs on page one so excuse me  material in the last time this case was up in front of us they erred they considered a portion of the reference that had not been cited or ever articulated this discourse in kennedy's it's up to them if they had gone back and decided if we're going to it have a do over here and let you cite it i probably would have been fine with that they decided we're not to let you have a do over why it might not probably fine with that also why would i ever put myself in the mess of taking over lower tribunals discretion to conduct its proceedings how it sees fit your honor i think that judge drawn to it said it correctly i think there is a balance here i think that i would i be the person to decide that balance as an a you know don't aren't i limited to did they abuse their discretion did they act arbitrarily and capriciously which is an incredibly deferential standard isn't that the review standard i apply yes under the under the a p a it is an abuse of discretion standard but in each of the cases that have cited del the the problems with the procedures that you've identified have been remanded in so there has been guidance from the court on what to do they have never said must but they have said in the essay yes decision that it that it wouldn't be erroneous for them to do something doesn't mean that we have the right to order them to do it in all circumstances your honor i do i don't i think that that is an appropriate deference but i believe that in the case where there is has been a finding of invalidity the claim was founded valid a claim a finding that has never been shown to be wrong the public policy warrants a they remain  adds to the record that examines that information to benefit the public in getting rid of invalid perhaps i don't believe that this incumbents on the deaf or the the processes of the peter out are a problem otherwise why it why is it in the in the case of s a s this court that the the the board was free to adopt it and in the remand said take some evidence on the new construction post that when i was on this case last time i thought you should lose on the caddies point suppose that i have evaluated the merits and thought you should lose but at the end of the day i ended up going along with an opinion that instead said it wasn't reachable why in the world would i want to force the board to go through a whole new additional process of evaluating this case when the merits why would i want to force them to do that when in fact it might have been wrong on the merits why why would i force them as a matter of process you're acting as though we have allowed an invalid claim we were injured no decision on the validity of that claim so you're acting as though we must tell them to do this because the claim that's been adjudicated invalid yet it actually hasn't been so why in the world would i interfere with trial practice for the policy disagree with any of that i am arguing for a policy distinction with where i believe that once evidence is in and there has been a final written decision based on that evidence that it makes more sense for the board to conduct the remaining proceeding that takes that into account and makes the determination each of us makes more sense doesn't rise to the level of an abuse of discretion even the way you frame it under the best of circumstances for you you don't meet the standard that you have to face on appeal well if that's true then the language in the face of it is so yes where there is an allusion to additional evidence take additional evidence takes take the submission of arguments take the submission of cross examination option it has available to it but not any sort of mandate and certainly if they did provide a mandate we would absolutely have an inconsistency here between the cases i understand of i'm going to reserve  thank you may please to work i don't know that i can really add much to the special and that has already ensued i think that the the court's opinion in the first instance back to the p tab was absolutely continue to rely upon the evidence that was introduced for the first time at the oral argument then i understand this court's first opinion to say that excel around was entitled to the opportunity to respond so had the p to have chosen to waive its rules and it would notice to us all around there's been a wave that is rule so the extent that excel or on want to take issue with that it would least have opportunity to to raise that point just from a procedural basis so judge morning answer your question i believe the picked up absolutely could have chosen to waive it rule consider that from ation and inconsistent with this court's first opinion it would have given excel an up to respond and even if i believe that he has all of the policy exactly right that in a case like this where  cloud has been cast over this patent and it's claims because there is at least an initial decision they kidded not on the merits but only on procedural grounds and initial decision which invalidated these kinds so there's clearly a catch a cloud that will now follow this  because you have a tribunal that invalidated them which was reversed not on the merits but only on procedural grounds so in light of that isn't it in everyone's best interest both the public's to know if this is in fact technology that's really available as well as even the patentee so you don't end up in a walker process fraud claim asserting claims you know to be invalid what happens then you know you're going to end up you're going to end up in a world of hurt don't you want this resolved to mean it's not never buddies best interest i know it's technically not your guess i get why your client would want it but but it's kind of hard for you to stand there and say that part but because it doesn't sound good so isn't it in everybody's best interest for a policy perspective that the p t o when they have actually invalidated something on the merits and it's only a procedural issue like this that they go back and open it back up well i'm not sure that's the only policy involved here i mean to the extent that there is a procedural issue we did address the substance of that when we were here the first time so we do clearly disagree with the merits of that but there's a competing policy too is it appropriate for a party to keep bringing up arguments after time and for them to be considered if that's the case and if i'm a petitioner i might continue to bring up arguments in my reply oral argument in hopes that perhaps those arguments may be considered and if they have possibly have merit if i didn't get it right in the petition then maybe i'll bring it later and i have success then there's an incentive to do that and i think this this court and i will pronounce it right what case that came up the day after our brief was filed i think speaks to this that shifting arguments that come out you know there's a policy issue there that shouldn't be a moving target so i  appreciate the concern i mean on the merits excel iran strongly disagrees with the merits of that issue and doesn't believe that there isn't fact a cloud and that issue ever comes up that would be addressed if this court you know sends it back and then we'll certainly address  i do believe that there are valid strong competing policy concerns on the flipside and clinton and also the that perhaps when you alluded to this but didn't say it explicitly couldn't p t o have made a judgment in this case they would have had access to your bra you did argue the case point on appeal on the merits in addition to arguing the procedural impropriety point of no notice couldn't the p t o have looked at all of that material and made an assessment well we don't want to reopen this one from new evidence you know what we're not sure we got it right the first time in light of your response isn't it possible that they could have done something along those lines and that would really be a reason why we should leave it to them to exercise their discretion i think it's absolutely correct i think they certainly could have done that so i think that you know this court did not issue a mandate to to really get involved in it and i wrote it down i think that there was a question from the court that you know essentially getting involved and sitting in the opening itself this court ruling itself in the shoes of the lower tribunal to direct this procedure i  think it makes more sense for that tribunal that knows its policies and is under its statutes and its goals to to effectuate those to the best of you know its understanding of them and if it gets them incorrect well then they come here but that's not the role of this court to to get involved in that the that it is true that this court has not given a compulsory direction to the p tab in the past in this in this context but i do think that it is inconsistent with the deference that is being argued by excel or on the language of the s a s case when this court stated the board to examine the construction in the first instance after hearing from the parties on the new opportunity for the submission and consideration of facts and arguments and permit the patten owner to submit rebuttal evidence is that permissive yes i think i think you probably could read it that way but is it consistent that the p tab would go forth and say i i am taking my or was it was the attempt to provide new evidence the submission the colloquy involved a one of the p tab judges being coming on comfortable with the application of a construction it was his own i think that this was the original yes the legal hearing for the original hearing to judge g n a t became uncomfortable with the construction of one of the top terms and pivoted to a new portion of the reference because of his discomfort with the construction we resisted that effort and but that was the basis of the first written decision so it was not a public to the public policy of making sure that i don't try to sneak something in was not in play it was the it was in the public but public the relevant public policy is not to prevent sneakiness it's to prevent adverse results from lack of notice it's focused on him and here it is and but there but i do believe the cases can be divided into what seek to where the petitioner tries to after the during the reply and after the reply put in a new grounds of obviousness versus allowing judge janetta to do his job and pivot if he wants to which this court in rain invasive said is ok you said it in writing of ace of that that is permitted and in the genzyme case he said the introduction of new material new ideas and new evidence during the course of a