possibly affect is the ninety six three which was the only one which involved partial institution and as to the nine sixteen we respectfully submit that you have no need to send it back first because our principal argument is that patents including the one six three the advisory committee art was not a publication publicly available and therefore was not appropriate prior art as you but that's  the s a s issue and they failed to do so they did not include in their read brief a paragraph as to s a s the way we included in our blueprint for paragraph asked oil states so they had the opportunity at two junctures one to seek reconsideration before the court which they failed to exercise as the as asked additions had done before the board and second they failed to preserve their right to appeal and license and so your argument this is a political real issue that's before the court with respect to say yes and that's whe press you to to give them every man in light of s a s that you should decline that on the ground that they waived twice they didn't seek reconsideration as to the non institute claims before the board and as judge randi you point a do over but i my side i have to say i'm sorry it's too late you didn't ask for anything that would preserve your right to a do over you didn't seek reconsideration of the not institution claims before the board when you had the opportunity to do so and you didn't  prospect of late on new new proceedings at which they will have to insisted on all claims or not but the board expressly said that as to pending claims in the docket in which final trial resolution has not occurred they may take yes but apparently the the supreme court has said you do the p t o you have to institute on all the claims that are that are raised correct that's pretty much it just won't that's true and we send it back for the p t o to to to look at all the claims that were there were raised and to issue a final written decision on all the claims that were raised what is there left for the district court to do if you do that then the district that she only reason yes ok thank you your honors i hope maybe we can move the s a s problem by persuading you to agree with us on the merits of the a c a the advisory committee art materials failing to constitute publicly to the world your honor the question is notice of what and let's let's go back to this court's decision in the end re lister which i think is very helpful and that's the case about a copyright reference not being publicly accessible even though the deposit copy was on file with the copyright office and you might think you go to the copyright office to find a notice to the world but importantly lister breaks the break down into several steps when we are looking for publication prior art first we ask does it exist second we asked as a person of interest and skill in ordinary skill in the art have a motivation to look for it there and sent of to look for it there and crucially lister said we don't stop at  website if they're interested in this field runner i hear you on that but we're not disputing the factual question of whether a person of ordinary skill would go to the federal register or go to the f d a website where focusing  know what's going on with a particular agency you consult the federal register and i'm sure you have people in your law for that are dedicated to looking at every federal register notice that comes out every day so that you may inform your clients in texas and in two thousand and one now i'm just saying that from my own personal experience i can go back to one thousand nine hundred ninety two maybe or even earlier and know that the federal register had alphabetical and subject know and there's no evidence in the record about inexorability or search ability of the federal register it's a chronological document it goes by page and there was no evidence that there was evidence that a person skilled the art like look to the federal register that the federal register is like the library in the old library cases you still need a card catalog or an index to get you to the single page where the f d a website was referenced and there was no evidence in the record that there was index ability or search don't there were indexes to the federal register in two thousand and one that the fact that they were in texas your honor if there were of course you could but there is no evidence of which you could take judicial notice that somebody's looking for a risk page in the board's reasoning about located ability you can find it for example an appendix paper thirty three to thirty four and when you get there you're not going to find any law of this or you're going to find references to regional case it's a case about a customs tariff announcement so what the product and this is the key argument here are they can't skip the crucial step wouldn't that person ordinary skill exercising reasonable diligence which is a fact question find this one page in the federal register and there's no evidence of reasonable a person of ordinary skill exercising reasonable diligence would have found this page none with the court substitute it was a legal  that you take constructive notice of the federal register for due process purposes against the government therefore let's transpose that over to patent law to section one hundred two in section one hundred three for purposes of prior publication prior art and obvious and let's just say anything that ever showed of anywhere in a lake anywhere in the federal register satisfies reasonable diligence with respect we think this court's requirement he is sarah lester unbroken line of cases this court's requirement materials were posted on the f d a website in june of two thousand and one the board found as a matter of fact that there were that there was an existence on the internet as of june two thousand there was a link to the actual material director  well because if you look at pages thirty three and thirty four individuals of the actions of federal agencies and therefore that is legally sufficient notice page thirty four legally sufficient notice to satisfy reasonable diligence we think that's not right we think reasonable diligence for a person of skill the are here a person with pharmaceutical background and some computer skill who understands control distribution systems a public person a skill in the art doesn't live every day to look at the federal register which is chronological thumbing through a paper copy and he didn't actually know about the risk management references involving this drugs i really elsewhere in the two thousand and that's what we are asking you to do is correct the board's legal  substituting constructive notice of the federal register for reasonable diligence standard and your other this is not a case where the prior art was disseminated in the federal register all that was disseminated in the public and the federal register we would argument that the a c a materials themselves were available in a prior publication there is no evidence in this case not much less substantial that the a c a materials themselves the transcript of the three and six hearing ninety two to ninety two ninety three he said the only thing i'm saying was published was the federal register and in fact the district of new jersey has announced that the a c m materials themself were not prior publication so this case all comes down to whether the is in the german library or the thesis in the recall it's library or the private plot page that wasn't accessed were in that world we're not in a world where you can't leap to that hasn't located ability like constructive found them so yes that is their argument our argument is that abigail would have had to show not the mere existence of the federal register page these existed in the german library thesis existed in reed college private land posting was up there has to be some method th person of skill in the art would have been able to use to find if there wasn't here and where we were i really think the key is your honors as it would be a major change in the law for this panel to announce for the first time that constructive notice of the federal register look at those pages on a cases cited on a thirty four there out of circuit cases about due process so he says i don't know you're going to take have the train them across my property and the courts say out of circuit yes you did it was in the federal register those due pro otherwise made available to the extent that person is interested and skilled in the art it doesn't have to be love capable and what about the german thesis well there's there are two different branches of cases there as you motivated to go to the federal register to keep adults going on the theory that that person motivated to go to the federal register then would have been stymied because you couldn't look through the and this court has held that dissemination can be enough even just giving a talk at a conference even putting something up on a server for seven days could be dissemination and it's something that you really sort of systematize what's going on here you've got to live up to come and get it hope you find the right library but once you're there you're title to some industry and then there's if you're still sitting in the library you don't have it that index and have played a significant role in our cases involve library reference as this is listed we have explained that neither catalog move nor indexing is a necessary condition for reference to be publicly accessible and that was picked up on  suffolk where you said it need not be easily searchable after publication if it were sufficiently disseminated new true to what is officially disseminated and you looked at class and seen and mit and you have had one two cases upper right hand corner of their web site and take out search right were papers to two thousand and one things published i'm a new york times search about and if not they still that the first one to be still afford sounded which was motivated to go to the generator into these things everyone agrees that when they saw that notice they would click those things those links and  there's no difference there i don't want my point to guitar sound like your argument is that the information was out there and pacino wouldn't know but there's a there's no no br that gap so it seems like you are you arguing that that this was constructive notice no then in your poem it is what why it's just not constructive notice because the first was doing been very clear the question of public availability is a question of law i did not say it was a question of fact it's based on subsidiary facts and my argument to you is here there were no subsidiary facts on located ability and i believe my friend on the other side just confirmed that argument he said it's the federal register and the court said it's the federal register but with respect saying it's the federal register is not enough unless there is some way once i get to the federal register to find a xyron risk management proceeding and there's no evidence that there was that my friend on the other side actually just conceded there is no evidence your honor of index ability and in fact you can look at a particular page in the record where counsel at the board conceded that there was no evidence one way or the other an index ability that concession is a eighteen thousand one hundred seventy five there is no evidence either way y existence of something out there in the world that is not in very great that was the exact blamed language of the lisbon decision he says that does not enter inquiry we must ask whether a person of skill interested in finding the information is capable of finding it and there's no evidence here that they were capable of finding it and there was no evidence that the expert on the other side had a search term rather what would you do when you got to the federal register what search terms would you use there were sixty seven thousand seven hundred and two pages in the two thousand and one federal register and there's no indication in the record that there was any way to finds iran the name of our drive or find the risk management proceedings or control distribution proceedings in fact the expert in on the other side mister the expert on the other side just was it minute he was paging through a paper copy thirty's minutes  evidence that in two thousand and one records internet is in its infancy that there is any search ability on the f d a website in fact i believe my friend on the other side has conceded that the materials themselves the treasure were not publicly available they're resting their whole case and the board rested its holding on the idea that colored ability of x marks the spot on page ninety seven ninety seven and if you look at nothing else around here look at page ninety seven ninety seven so this supposed great public dissemination but there was evidence that it was available within two weeks after that exactly were that point in x marks the spot in two weeks you're right it was evidence that showed exactly that that was true and your are there is no evidence notice to process case the board rely on constructive notice you should not you should insist on the reasonable diligence standard being satisfied by anyone who seeks to invalidate an important patent that protects the public well and you should not change the law to this case or if you disagree