that that cuts off any further prosecution as a matter of right that prosecution is now closed in your honor prosecution is it's closed but that's not to say that there's a statement in that rule that says if you choose to file a one point one one six response that's fine you can do that but it doesn't relieve you of your responsibility to timely file reply to the final office action if all you do is an one point one one six submission and don't do anything else and don't hear anything else your case will actually ultimately go vanda for failing to file a one point one one three reply is that fair t your case but it's not as a matter of right that you get an opportunity to be heard whether that p t o must consider any and all arguments and evidence that you  honor before we enter see in this case would have defeated would have been contrary goals of compact prosecution and it would have delayed final resolution of the case and the question here your honor is not you know whether this is before final or after final the question of question supremacy is whether the applicant's conduct was you know reasonably targeted towards achieving resolution of the case and we submit that it was  your your initial response your july response yes or it that response as i understand it you wanted to persist in having a back and forth with the examiner over the merits of the examiner as one of the three retraction is  i'm going to cancel all those claims and i'm going to follow your direction and suggestions on how to fix all the technical problems with the other claims and so now everything i've done is according to your wishes so that the and condition for allowance that's fair to say is sure if i could further say there was a telephone conversation on the day of the second response and had the examiner simply you know entered the amendments that were  for whatever reason you chose to continue to fight the merits of the one of three rejection at that point in time in july and it's twenty thirteen you could have easily said all right i have a final rejection on my hands here and i want to just get this thing issued so i'm going to do every single thing that's going to make this examiner happy cording to what the examiner said in the final rejection so that i can put this case in condition for allowing here and by doing that i will have clearly made every reasonable effort to conclude prosecution but instead he wanted to keep fighting the one of three you want to get the examiners attention to have or have another opportunity to be heard after final after prosecution been closed to argue the merits of the one of three and the examiner said no because the prosecution's been closed you need to do something to get rid of the rejection other than argument you have to either cancel the claims or do something else and you didn't do that and that's what the the examiners point of view but you didn't do it all the way with a one or three rejection who wanted to keep fighting that would have been why you do an r c e you want to keep arguing the merits of rejection that's what you do with an r instead you didn't violin r c t you did this after final response and that in essence was a choice by you to not conclude the prosecution right away in light of the context the final rejection that was you trying to keep going pressing forward and hang on to a give and take with the examiner which you're not you don't have as any right to do after prosecution is formally been close highly regulated it's tightly scripted there are just a few little things you can do in the context of after final as opposed to after a non final office auction is that fair to say i would say you can do to not entering amendments or or not considering arguments after final but it doesn't mean the arguments can't be presented the only thing that's that that so different about after final practice is that come what may that's true you have to do that within the six months but with regard to the arguments that you can make your your privilege and a few arguments you're encouraged to take are if you don't get as a matter of right to be heard on those arguments by the examine  maybe what that means is but they've tried to do for you is to create sort of like a mini r c e without having to pay for an r c and without but that doesn't necessarily mean you get relief under the patent term adjustment  laws that now you get to escape the costs under the p t a for filing an r c well when you're doing something in substance that very much looks like an r c well if we had if we had let's say filed you know instead of the first sooner the fact is that the examiner's position also changed somewhat from the final rejection to jr to the to the advisory action that's why we went from having fifteen slings rejected allowed one of the three production you're saying the examiner moved its position between advisor reaction and the final office action the examiner withdrew his objections on the basis of one twelve the are you talking about you want to get three let me repeat my one of three questions you rule seven of four being the word replies mean the simply a reply response it's not it could be a one sentence reply and that would count as an adequate reply under the rule it would have to be a reply that  believe that any reply that complies with one point one one one regardless of whether it's a response to a final office action or a non final office action that should be adequate to fulfill the requirements of reply under seven o four section seven zero four b ok well it doesn't say non compliant replies it just says reply that's right that's right you're a means of wild reply with is within a certain period of time and response to any action so now the question is what is replying to what the word reply is defined in at least three other regulations one point one one one one point one one three and one point seven zero three all of which are expressly cross referenced by one point  calculate examination delay and then we'll start in a for which is to calculate applicant delay so no three chooses to be very specific about what it means by replies and there are different kinds of lines and this is what you have to do agnostic and doesn't care about replies whether it's in the context of whether it's a non final or a final offside so what am i supposed to do with well i think i would disagree with as a fact with your honor's suggestion that he doesn't care about expanding upon the definition of apply in seven o four for a couple different reasons i think first by having one seven zero for cross reference to seventy three there is an economy of not having to repeat the exact same cross reference in definitions from other regulations and having to import them into other regulations that might want to rely on the same definitions otherwise all the mark either cross reference the seven zero three and four as being something of a suggestion or other regulation or statute or case law that defines reply in any other way and in fact the talent council just now admitted that a reply would have to at the very  least comply with one eleven and one sixteen but noticeably leaves out one thirteen but one thirteen is exactly the regulation that describes what a reply must do when it's made in response to my office not the finder stem the government  let's have a hypothetical here is a final office action and then four months after the final office action the applicant files an appeal notice of appeal then the honor i believe that there would be an african delay for that and that's because the replying to the final office actually was this notice of appeal which under one point one one three is sufficient to be compliant with bot i think that well i don't think that that's exactly right don i think that there would be the african delay for that period after the three month mark to the beginning of the our c e but i think that we would essentially by filing the r c e the finality of the higher final office action is set aside and then we go into a second phase of the continued examination and so we are so th continued back and forth between the examiner and the applicant then we'll look to different obligations for the applicant in responding to various office actions and we don't have the same concerns here how do i understand than the rule of seven zero four b which says that are rejected that you choose not to appeal that's right that's one point one one three c that's right your honor but then there's other things like an r c e for example and so i don't know what the rule is right now well i think under that scenario the because the r c the finding of the r c e removes the finality of the prior final office action then we do go into a different phase where the back and forth works the finding of the r c eat to a final office action because the finality and the strong it's like some kind of superseding event well you're not i think actually under the regulations an r c would be considered would be considered a type of  yes your honor i think that one thirteen does actually refer to one fourteen which is which governs the filing of an r c e and so my complaint by filing an r c would actually that the filing of an r c e would still cut off the calculation of applicant delay but i also think that that is not what this court has decided in this case because there's no question that the that  submission on july seventeenth two thousand and thirteen was not a was not a request for continued examination there's no dispute over that and that's true but in this case it may require us to try to explain what is a reply what is an adequate reply what is  complaint reply what is the right construction of the plants that term houstons of no four would be in the context of a final office action and so we've got to get to the bottom of this and that's takes me to the other question which is  you're telling me it's supposed to be one thirteen seed type of flying but one sixteenth amendment to fix something in condition for allowance that doesn't fit within the text of one thirteen  section well i think that c one hundred c still requires that a reply to a final rejection or action must still comply with any requirements or objections of the form and that when you take that in combination with the fact that there must be cancellation did you just read something from rule one thirteen c yes your honor that's from that's from one thirteen see that if any claim fans are allowed to reply to a final rejection or action must comply with any still put an application in condition for allowance in order for it to be a valid reply position is is that taken as a whole that one hundred teensy necessarily requires that a reply to a final office action has to place an application in condition for allowance and that that is consistent with one thirteen c and consistent with one sixteen and that it's not an arbitrary and capricious decision to require that that responses to a final office action meet that kind of requirement otherwise there would be no there would be no logical end to completing a patent prosecution and that we would be back in the pre final office action scenario where the would continue to be this give and take between the applicant and the between the applicant and your honor i see that my time is up if i may answer your question well i think that in an ideal scenario we would have regulations in every situation that would specifically address every single scenario that comes up that's not the of how cases come before any sort of court in terms of trying to apply regulations in this case but i think that what we have here are a set of regulations that taken as a whole are consistent with the p t o s position here defines reply that would be in such a way that supports our position or to show that the p t o vision is somehow fundamentally inconsistent with the overall scheme that is in place in the statute and the regulations and for me it's a little time left i'd like to say very quickly that i would submit that the scheme for after final practice set forth in one thirteen one sixteen is just simply intended to ensure that there that the very clear applicants that that nothing they do in after final practice obviates them obvious the need to file a notice of appeal or get a one hour winds were filing or see it within the statutory deadline i would say specifically with respect to seventy five as a fourth held right again for the court's research period in support of this and i would say that the answer