had standing under its section eight hundred eighty one b to petition for c b s interview the postal service cannot be sued for infringement or charged with infringement as required by that section of the statute a long line of unbroken authority from serious interpretation of the statute so it is it a minimum a necessary interpretation of statute judge newman i would argue in addition to hold otherwise would create an anomaly in the c m statute where the government would be the maybe no one told them that infringement actions can be brought and what we know is courage and if that is the case your honor then the beecham case from the supreme court instructs us to apply not not to assume what congress would have done had  informed about fourteen ninety eight actions but to imply the clear text of the statute and i would argue that given the this long line of cases going all the way back to crozier it's been very clear center devoted to the clear text of the statute  infringement in a statute is referring to the definition of infringement thirty five u s c two seventy one but regardless i would argue when congress uses the term infringement it does so in the context of what has been one hundred years of clear precedent that a suit against the government under fourteen ninety eight is not an action for infringement as it is you have to establish infringement you know to obtain here the remedy under which would be some sort of payment some sort of  royalty you have to prove infringement so there is no question that there are relevant concepts in the motorola case from this court made that point very clear there are relevant concepts from title thirty five there are used to me where in motorola we specifically limitation on damages that set that section titled thirty five says it applies to any action for infringement well the court and motorola said it is a suit under fourteen ninety eight is not an action for benefits or it is an act is an eminent domain so i'm not suggesting that your myside but my read of motorola as saying is that the government isn't what they say the position of an ordinary infringer career but it doesn't say the government can't and fringe and it does indeed what it says is the government can only be sued for any direct infringement of a patent and not for inducing at all i'm suggesting is motorola is it best ambiguous in terms of what they met but i think a fair reading is that alluded to the government can infringe it's a question of what the remedies are if we're in fourteen ninety eight then clearly the remedies don't include an injunction they don't include all of the things that to seventy one brings forward that doesn't the necessarily if you look at the step to a tax that the government can't be considered an infringer for purposes of c b s so why am i wrong so i would argue that if you create you would create an anomaly if you say that sued for infringement for example someone a also brings with it certain remedies that are available including injunctions and damages and fourteen ninety eight the argument is also deals with infringement the words of the same in terms of the conduct of infringement in two seventy one and fourteen ninety eight the difference is that fourteen ninety eight there's no disagreement that it's not tortious infringement it deals with the government as a license it so the remedy the belief is different why is the liability so the underlying liability obviously as motorola explains the court does borrow the concepts from title thirty five but nowhere does forty ninety eight use the term infringe or infringement that statute is talking about an eminent domain taking by the government but the cases that construe fourteen ninety eight clearly talk about infringement the suit in this case was called it was termed a suit for infringement clearly that term is used to describe fort way and i would suggest to you it's because the liability poor from that is just is very similar not the same as two seventy one a the difference is the remedy well and i would argue that what the government has done it is taking the position of title thirty five is is inapplicable to it in a number of instances crozier least sona calhoun and they shouldn't be able to pick and choose what aspects of title thirty five  applicable to them and which are which which of course means are not applicable to them i see no reason why if the focus here is what congress intend by the word infringement the goal there is to see are they are they talking about title thirty five to seventy one when the government acts it acts with authority to seventy one a talks about whether without authority makes use it sells a particular in invention the government is always acting with authority so argue that it's not  it doesn't satisfy even the threshold for to set a new one and as i said we have this anomalous result here where the stop the provision would have would not apply only to the government well that i mean there could be several answers for that one is congress just from god and they fix it if they want to the other question you raised is why wouldn't that same argument hold in certain circumstances and that the i p r proceed and so far at least the government has been a standing requirement whereas i p r is available to anyone other than the owner of the pad so including hedge funds and others who might not even have standing in court to to proceed so that in those hold for the i p r's and a certain extent doesn't hold for c b s i think what is what seems clear is that nowhere in the i a e a did congress contemplate fourteen fourteen ninety eight actions and the beecham supreme court decision makes clear we have to apply the clear text of the statute i would say it's much more likely than not that it was an oversight the real question is whether it's within this court's authority to remedy the oversight or send it back to the in helps us understand the scope of what suit from frigidaire charge for infringement means going back to the point i need i don't want to belabor that but to me that's an interpretive tool it's very clear when they were using those terms least to me they were not talking about the government the governments liability has been for a long time not considered a suit for infringement mystery on new york to defend your position but i just want you to touch a little bit on the government's argument that we can't even review the determin fundamental and a defining characteristic just like the sea v m character patent is a defining characteristic a c b m so too is this standing requirement before the pieta and moreover even under the same decision we would argue we satisfy that as well there is no other petition that could have been filed that could have raised the issues in this case that is something you can within the control of return now this snare the abstract business process of relaying mailing address a the claims in this case are not the claims that we are appealing are not directed to the mere abstract idea of relaying mailing address data they may involve that but they're not directed to that and we think a unique feature of this case is the fact that there are numerous commercially deployed postal systems for dealing with with mail none of which are implicated by the claims absence of complete preemption and you know the signals we have a preset preemption is that it's important but complete preemption is not necessary and one software asked to draw the line why should the law be drawn a line drawn on your side so i think  distinguished in our case area the claims there were to all of all of the basically commercially practical applications of that invention we have we are totally on the other end of the spectrum there these are these are very specific claims to improved process for dealing with a major problem which is return to mail a very specific process requiring very specific data in very specific steps as reflected in for example figure three in the claims  we are not in a situation where we have even close to complete or all practical preemption so i think this is much more like bascom where the absence of preemption was very significant to the core and there have been a number of other decisions where this court has so he but in addition to preemption i would argue we have claimed they did improve the processes for dealing with mail and the u s postal service system well it is a black box perhaps to a lot of us we put our mail  you know into the mailbox and off it goes is a massive logistical system this is an invention it was designed to fit into that massive logistical environment and improved it's unquestionable it is improvement on the process by encoding specific data very specific data into a piece of mail after that mail comes back returned decoding that information in doing one of two things with that information how can that standing right that is correct you are ok so so so just to just to sum up on this we believe we have a we have a unique situation we have a very broad abstract idea adopted by the p tat advocated by the postal service there is no question that the clues are are specific claims are a process series of process steps which are not directed to that broad concept they may involve but there are lots and lots of ways in fact i would argue that broad concept could apply to virtually every process the postal service is using thank you will we store the minutes of republic like here from the other side certainly are and the review of the claims made clear that there is still a preemption concern the claim some cells are directed to receiving mail with a preference marked on it identifying as undeliverable mail after it were turned reviewing the preference on the ma generating data based on the mail and then sending along with the original mail or if they want corrected address information there's nothing tied to a specific technology or to a particular way of doing it now for the preemption concern specifically in the brief are my argument that because their claims were not invalidated under a particular one hundred two reference that was considered by the p tab that somehow signals that there was no preemption but i would point the decision of the p tap appendix twenty three where they said that their decision on one of the two was dealing specifically with the reference what was explicitly in the reference or was inherently required by the reference not by what the  decoding now there is testimony put on as to what actually happened to the post services system but the people have said that doesn't matter what we're looking at is a particular one and two argument based on a single reference we can't go out and look at what was here and why isn't your friend's argument compelling that we're trying to discern what congress is intent was there's no reference word infringement fourteen ninety eight a and as important significantly no corresponding stoppel in the c p m that couldn't be applied to the government in this case why at least those two factors enough to suggest that there's no standing here and if we get it wrong the question is who is whose whose role is it to clean it up and that it's congress role to clean it up even if that was their intent certainly are i think that the important things to go back and look at the specific language of section eighteen when they want to define who could file  seventy one they used the word sued for infringement i mean if you look at other sub parts of section eight team congress wanted to specifically spell out a particular cause of action this is with the stop the provisions with the venue provisions they actually said we would have to go back and look at a particular statute and determine whether the government was intended to be incorporated within the definition of person by five congress there's nothing to suggest in the so i was starting to say there's nothing to suggest in the venue provisions  so the ultimately the standing issue is a question of whether the congress intended to exclude the government from part of that susan has yet i know that my colleagues may disagree streamlined system so that the patent office would do the work that would otherwise be done by the courts and resolve these patent issues quickly and presumably with some expertise that whole is omitted from this e b m proceeding in terms of the government so why isn't that at least at weigh heavily in our analysis in construing the statute which does not use the word infringement which is the word particular provisions in section eighteen so then you only applied it to seventy one or to any one actions for purposes of a stop vote it only applied to thirteen thirty seven or thirteen thirty eight actions so when they use the word suit for infringement it certainly suggests when they want to use a particular cause of action they do so there is a long statutory history of fourteen ninety eight one waiting for that we are friends argument not yours if the suggestion is that when they want to use a specific term they do so that would suggest that sued for infringement doesn't appear in fourteen ninety eight a and therefore it should not be included understand your argument just sort of this earlier on or to the point i was making if they wanted to limit the word s our infringement to mean a suit under two seventy one which is what return mail seems to suggest they would have said a suit under two seventy one not generally a suit for infringement now there is a long line of history in which is your honor pointed out during my during the turn males argument of where the words sued for infringement suit for infringement are used to describe what is it fourteen ninety eight cause of action when as originally enacted they referred to it is allowing for s of infringement to go against the united states there's a long history of using the word sued for infringement suit for infringements to describe fourteen ninety eight actually so if congress knows how to say we know they know how to say because so if my recollection serves the reason sued for infringement or the word infringement appeared in forty nine he was to deal with the potential for criminal liability there is concerns that the government employees such as in an intelligence gathering w eight especially where congress didn't used to seventy one in subsections of section eighteen when they wanted to say to seventy one they did so i want you to address your argument that we don't have authority to review the p t honor i understand that square is taking on bahnhof question as to whether a kiddie's of the apple was going to be reversed i don't want to spend time on addressing a katie's to be apple and i certainly don't want to somehow limit what the government is able to argue we the this court determined that whether patent was or was not a c b impact was a limitation on the authority of the patent office to invalidate a particular act now your honor you referenced the two twenty seven gone now i would argue that the identity of a particular petitioner is not relevant for purposes of whether the patent office has authority to cancel a patent so similar to or different what was in  jurisdiction is that not the issue presented in this case it is not your are the reason it is not is i would point to the three twenty seven provision which permits the  so you're really going for the statute as the reason the government has the work of authority to refute this is because even if there was nobody on either side of this that would have authority to do it i thought that had to do with when a case w three twenty seven a it shows that the identity of a particular petitioner is not relevant for the authority of the p t had to invalidate the patent verses in verse out of the question was whether any particular patent could be challenges just disappeared your honor i'm not familiar with the particular facts of those cases you're referring to but to the extent that the statutory language is provided it says that the key to have him continue are i don't want to come across as trying everything but what i'm what i'm saying is that when the identity of the petitioner is the issue that's being challenged three twenty seven suggests that the identity of the petitioner is not a limitation on  quick points or honors first on where where the government's argument started on preemption i think it's important to stand there was not only a c v embassy there was a prior reexamined as well filed by the postal service which  e up about forty years of time and had a whole bunch of references considered and over over which these claims were found that second the reference that the government is talking about which there may be a later validity dispute for example based on testimony about actual system still doesn't deal with the multiple other mail relaying systems that are out there such as n c o way fast forward and pars there's no question those are not implicated by the claims in this band these are very specific claims to a very specific process affecting a technological improvement in the mail processing industry this is not a computer software case i'm not arguing for improvement in the operation of the computer that's not what's going on here but we are arguing for an improvement in mail processing finally on the issue of the word infringement in section eighteen the government may be argument that the fact that it says sued for infringement doesn't not go on to say sued for infringement under two seventy one is significant however thirteen thirty seven has the barrett infringement as well and this court held on bach and supreme and that that term when it's used by congress is implicating thirty five u s c two seventy one which is