presumption of review ability that has been the law under supreme court precedent for more than fifty years second the court and the caddy's failed to d congressional intent to limit review of the cases are clear down through the decades that it is necessary for the court in order to determine whether congress intended to overcome the presumption that the court examined the text of the statute in question examined the legislative history and examined the structure objective and history of the statutory scheme none of those things were done by the court in the academy use and when we see that we go through the analysis it will become clear that there is no those accused of infringement but to patent holders who would have recourse to a rapid efficient and cost effective means of quieting title to the patent the prosecution history though is re with rich evidence of the careful balance that congress sought to achieve on the one hand between providing an efficient cost effective means of challenging bad patents but on the other hand of protecting patent on earth from unnecessary cost the law and harassment and the chief tool for accomplishing that was in fact precluded judicial review and it addressed itself to read well a three what is the difference between three twelve he three supreme court pointed out of who i was so that that is an exercise that really presents simply a legal question with then the special expertise of the patent office and the question obviously is in that case what is the relationship between what's the difference between three twelve three and provision revealing with the position we're dealing with here does not present a law purely legal issue it's an intensely fact bound party interest is that subject to the appeal or not yet it would be subject to the heel bar of in connection with the director's institution it would be subject to review for the shenanigans that the supreme court fide so for example if if the court were to decide that failure to within a five the real parties in interest rises to the level of the agency acting outside of its statutory authority that it would be review on who wins who loses the question would be reason it should never be granted how would that work in practice in practice under the statute that the director makes the decision about institution now we know that that has been delegated by regulation but the statute of course provides that it's the director that makes the decision and under three fourteen the that decision is final and non reviewable subject to the then we proceed to the second stage of the inner party's review the trial by the peter the issue of pretty is still alive at that stage is frequently addressed by the decision then there certainly would be an argument that if it's not in the final written decision it's not appealable but i would point out that that is probably an unrealistic hypothetical because the party alleging the time bar has the ability to raise that issue during the trial stage and while it cannot force the foreword to make that a part of the final written determination it would be reviewable error under the administrative procedure act for the board to refuse to provide a written basis for its decision and indeed we've seen a case within the last two weeks where this court reversed the board for exactly that reason to be concerned that that because it's only reviewable under your theory in connection with the final written decision that if the p t o errors on the other side with respect to the time know other words improperly imposes the time bar that if there is no review isn't there some asymmetry there that was addressed that certainly we could we could be concerned about that but i think that it was in the who also where one of the justices pointed out that all that's what that's a risk and there is some losses there to the challenger who no has the advantage of the other party's procedure who doesn't have the advantage of a favorable standard of proof by by a preponderance of the evidence rather than clear and convincing evidence they nevertheless do have recourse to going to th in contrast the patent owner stands to lose their important property rights they've been going district be a threshold issue it's got the characteristics of a racial issue why would it be addressed at the at the outset and then again at trial we want to get to trial if if there's no basis no legal basis by which to proceed well the simple answer your honor is that's that's the structure of the statute created three fourteen in every section directs us to the decisions of the director and provides that the director institutes and that so that there is a threshold decision to initiate congress chose to make that non reviewable but then there is a trial in which discovery may be allowed in which parties raise issues such as timeliness if they decision decision yes and your honor if i if i may elaborate slightly the critical analytical danger that your honour's question poses is when you ask can the board which initially decides the time bar does not apply the side makes that decision and then the board changes it remember that under the statute it's not the board that makes that initial decision it's the director and while we know that by regulation that decision has been delegated by the director to the board analysis of the text of the statute and the statutory scheme it is you critical that we keep in mind the fact that that initial decision is made by the director of the board so i just to be clear that if after the trial the board rules the director got it wrong the time bar here applies you think the challenger can appeal that to us and we can reverse that and send it back down to the board and say no you're wrong you should have a trial on this i'm sorry i got lost there if the the director it was i mean it's let me try to clarify it seems to me your position is whatever happened at the director stage if this p tab that the decision that the proceeding the other parties proceeding is time barred is not appealed that's not answering my question there their position is it's not appealable for any of you i'm trying to figure out if you're trying to carve out a right only for patent these to appeal the final decision on time bar or if you agree that given your point three nineteen provides that a party dissatisfied with the final written the situation of the patent problem appeal board may feel so is that a yes i don't want to take up any more time i'm sure my colleagues have questions but it seems to me that that's a yes i think so well wonder if if you have a dismissal it sounds like that doesn't trigger the right to appeal under three ninety as opposed to a hundred years decision and a dismissal presumably would be the dissatisfied with a final written decision under section thirteen but three eighteen right but that final written decision issues only if there is not a dismissal is not a dismissal which means it would understanding that the p t has already concluded which is that their decision that the time bar applies is not appealable and therefore we're back into the analysis think we discussed couldn't the dismissal reference three eighteen  reference back to three seventeen where there they keep tab is left with the option to either choose to dismiss or to go forward in the absence of the ongoing presence of the petitioner and so that that kind of dismiss that case is not arisen and if i may be permitted i would pose this question to this on backcourt who is going to decide that issue according to the government its individual panels of the peach have with no board of appeals and more no one within the teach have able to achieve consistent decisions on the questions exactly like no no no it's not according to the government it's not individual panels it's the director because in on the list of shenanigans the director if director doesn't like a decision and someone seeks an expanded panel can appoint judges who take a different position which is more in line with what the director wants so in the long run what you're really saying is it's the director who decides as opposed to this course well the director i'm not i'm not talking about timeliness i'm talking about the the multiple issues that we've just heard acquired appeal ability is going to be decided by this court right that's not a matter of the ability will be decided by this court but my my point your honor is does the legislative history and structure of this statute suggest clearly and convincingly that it was congress's intention that this court should not have the ability to exercise review over the kind of issues we've just been discussing what your problem is kwanzaa which says that some issues closely related to the institution decision as well as the institution decision itself or board from appeal it did say that my course your honor but this is an issue that is different from the pleading with particularities issue in that case as we've already discussed it involves factual determinations yet exists throughout the pendency of the proceedings of mr calling how should we look at the interaction between cause of majority and dissenting opinions design rather dissenting opinion it its view the majority decision precludes review of these time bars in three fifteen and then the majority didn't speak to that question it did speak to that sense but it's been about whether interlocutory appeals of the director's institution decision but that that decision by the director could be if peel once the proceeding was final that was rejected that's not what we are urg it is our contention that absent shenanigans that the decision to institute by the director under three fourteen d d is final and not appealable but then the time ess and time bar issue goes to the entire board and that decision i gone the question is what could make of that well i think the best we can make of it here is i'll revert back to the majority is repeated cautioning me that they were deciding only narrow issue of the appeal ability of the particularities requirement and not any other issues that that suggestion that the time bar might be barred i think does not stand up under  majority and i think the majority answers it and answers it quite clearly the majority impose those says nevertheless in light of three fourteen d's own text and the presumption favoring review on the other hand we emphasize that our interpretation applies where the grounds for attacking the decision to institute consist of questions closely related to the application and interpretation of statutes related to the patent office decision to institute i p r the majority clearly addresses justice alito scooters concerns why do you think in that passage it then p certainly so to address the under this section beat the supreme court that's and apparent that it will they didn't establish whether that's the standard didn't say that the standard is whether it's under this section or not to issues under three twelve it says if a qualifies they emphasize that it applies to other statutes that are closely related to the decision to institute the three fifteen in the language that we're looking at is sue whether the patent office may or may not institute it is even more directly related to the institution decision then three twenty three twelve the phrase in three twelve is the patent office may not consider for review by this court of shenanigans of situations which facially on its face could be determined and review could be available through mandamus there are options which this court can review those decisions that are clearly outside of the statutory already of the agency but this sort of day in day out decisions the fact based decisions about to the sets of facts really that rise to the level of pretty or not that's super that's congress directive that's in discretion of the pizza the situation i i described her two year i said in calling where in effect the director puts his or her thumb making and if you don't we review that kind of thing some of those decisions are reviewable some are not certain if it rises to the level of a constitutional due process violation the petition the patent of would have arguments available to it and avenues available to the institution decision itself is immunized from review but not the decision of the board later following perhaps discovery or the denial of discovery that in fact the time bar has been satisfied its institution argue decision during the course of the truck it is certainly not required to get to that it's not required to do so but if it does that is nothing more than reconsidering its institution decision and only i mean i understand there's that delegation but statutorily it's a different actor that's the to making the second decision from the first the director in theory is making the first decision the board is making the second so in that sense it's not statutory reconsideration it's a new view of the same issue and it would be a new view of the same issue but i think there's a difference with you know distinction without a difference the the director is a member decision is not later binding on the board that is actually considering the question and p t o has argued that position over and over and we've accepted that proposition haven't been i believe you have your honor and why probably from the board can statutory authority for statutory limitations and three fifteen b it doesn't say no petitioner can request a petition if in fact the time barflies it says no i  instituted so that is directed to the to the entity for the person doing the institution right crept out so if you institute in violation of that time bar then therefore the director is acting outside her statutory limits considered it's equivalent language because how is it said that three twelve decisions could not be reviewed at the same argument applies for three same positions i guess the court also said that the three twelve  three challenge and its view was little more than a challenge to the three hundred three fourteen a reasonable likelihood determination and of course that takes me back to three fourteen the the phrase under this section and i feel like i need to give it some meaning and i'm concerned that your position is that no meaning it's almost like the phrase could not be there and under your version of the statute or with the statute would have the exact same effect and so now i'm trying to figure out why it is why did congress use the phrase under this chapter and three fourteen b and then years under subsection a three fourteen c and then use under this section and three fourteen d it appears that congress was quite sensitive to you know how it characterized that kind of phrasing over and over again inside of section three fourteen and so the other side at least has what appears to be a plausible theory of the meaning of under this section there would be the reasonable likelihood determination under three fourteen so why why is it that that's the other side view is not plausible as an understanding of under the section sure congress act of congress acted specifically in dealing with a situation in which wire statutes said that the decision to basically not it does not limit itself to the institution decision on the merits under three fourteen any other provisions that still exist in other other regimes and the predecessor  have a clear sense of how far it goes but the supreme court was clear in dealing with justice alito justice alito said under the majorities view three fifteen decisions are just the type of and they said they emphasized in their own words we emphasize that that our interpretation applies to statutes that are related to the institution decision that's the that is their holding that is what they wanted to emphasize there when you say that what they emphasize they said they didn't say institution decisions they said we emphasize that our interpretation applies where the grounds for attacking the decision to institute which is a different  thing and the exact phrases wander in another another place that you see closely related but perhaps a sort of a two part test first of all is the question that's being raised closely tied to the application of a statute related to the decision to institute a wife i once argument is that is closely tied it's intimately tied to the question of whether the decision to institute was proper or not or whether it was time barred under three fifteen which says that from other data tory provisions that are less closely related so the question is what if we have to interpret anything it would be what is closely tied right on the street just generally related so the supreme court says the issue is whether the questions are closely tied to statutes related to decisions and to so you first have to decide is three fifteen a statute related to the patent office decision to institute very language it is it defines the bounds in which a decision may not be instituted you couldn't be more clear then the question is whether the issues being raised on appeal are closely related to that statute and the issue on appeal here is whether three fifteen was complied with or not isn't language actually saying last closely related it doesn't just say is it closely related it says we're not going to decide with a free fourteen  that that is true but it's not that the i mean the the paragraph starts off with we emphasize and they say this supreme court is emphasizing that the question is a closely tied is it related and my argument is the three fifteen reasonable expectation that a claim would be invalidated like three three and three eleven talks about the petition which is trying to show that three fifteen on the other hand it's directed to a different question right and this is this raises it's the decision of patentability in the supreme court in either didn't say the question is whether it's related to three fourteen essay it most clearly didn't say that it said it's whether it's related to the decision to institute how angry i see them saying all of those other issues except the majority never disputes justice alito position that time bars are such statutes closely related and that time bars are not appealable and they went on in this section to emphasize the court mark freeman for the government let's start with just this question about under this section in that key paragraph from close up let me tell you what i think the court was referring to there and i think we can draw a lot from the two citations that the court gave following the  site your honor and i think that's quite telling the first case is johnson versus robeson that was a case concerning the veterans administration statutes that preclude review of the award of certain veterans benefits and the reasoning in that case is about what the clearly don't believe it's on point your point your your honor we are all here this morning trying to figure out what the supreme court meant by a couple sentences in this one section and i would be glad to address later why i don't think we read the supreme court decision the way one reads a statute and tries to pick out particular sentences with with the with the punctuation there is a long discussion here in the overwhelming impression from this supreme court decision is that the decision whether to institute is for close from judicial review but i do want to answer this question johnson versus robinson is not just that is the reason why justice breyer cited that case is because it discusses what the word under means what meaning we give to that when congress says determination under a section are for close review similar in what the court said there was a decision under the staff of the veterans benefits statutes is for closer review but we don't normally interpret that to mean it comes to include a constitutional challenge to the structure as a whole that is not a decision under that section and then it went on it also cited trainer vs turnage trainer versus turner if you look at is another case concerning the same veteran's benefits statute and in that case there were two argu the first was that the benefits awards were wrong the benefit claims were wrongly denied and this report said no that that's foreclosed by that veteran statute but the second argument was that the veterans administration had been systematically denying veterans benefits claims against disabled veterans and the argument was that was a violation of the rehabilitation of the government argued that that too was foreclosed under the statute barring review of the secretary's determinations and the supreme court said in trainer vs turnage no that is a much less closely related statute it is a recap of section five zero four the rehabilitation act applies equally to all federal agencies it's not a statute entrusted to the veteran's administration to  to administer and so we don't hold that that's actually under this section language of the veterans statute precludes that less closely related claim now i think that the fact that justice prior pointed to those two cases gives a clearly our house the one year timing requirement yes and suppose the office decides it nonetheless go forward with that be the shenanigans the supreme court was talking about or the supreme court said in the m court case in the one nine hundred ninety s that lead ambers kind review is typically not available where a statute specifically precludes review of the question so i think that that the it may not ultimately matter because the the questions that would be for example here whether this amounted to a claim of pretty but i'm not here disputing that lead in versus kind is a thing in the world or that particular types of violations may state that our point is that and what i understand the ongoing court today to be addressing is whether in a routine case where the board has issued a fifteen page single spaced decision about the denial of discovery an eight page single spaced decision about denying we consideration of this question and has reason that there is they failed to show pretty whether to but that's not the issue here this is the same for your if i just was well it might not be a question it certainly is something that one might consider when thinking about whether there was a determination that your review should if the argument that congress has referred to a common law term and and that common law term has meaning that it's not typically given to the agencies expertise to administer its argument one sees in ordinary administrative law cases that's an argument that goes to whether an agency is entitled to chevron deference so that argument be relevant for example if the p t o issued a regulation construing the term pretty this is not the issue that we have today the issue we have today is everyone agrees that congress has said section three fifteen b if there is in privity that's more than a year later than they cannot institute review but if the agency makes in a routine case a judgment about that question can we later overturned the correct patentability decision on the grounds that the agency got that threshold question wrong and i want to emphasize this point have been instituted they were adamant on aren't on our understanding of the statute going to know because the determination he said earlier yes this can only come up if the board as correctly found  it seems to me that that's not quite right well but is that we could have that discussion of the right time that i would imagine there's a question about whether that's an alternative could have a discussion about whether that's an alternative ground that would lead to the same result whether the judgment would be corrected there are doctrines that govern alternative arguments to be made on appeal but let's let me concede the point for now let me just say for present purposes in many circumstances of course you need article three standing for a petition or to appeal for example in many circumstances this will not matter and that my only point with respect to this was that this explains why congress struck the balance it did my friend got up this morning and started talking started by talking about the bal struck by the statute congress did strike it down it's into things first we want to we do not want the board to be instituting review in circumstances where a person is in with they're improving he was sued more than a year earlier but we also do not want correct patentability determinations to be set aside later on appeal on the ground that that threshold decision was wrong and this case illustrates that point why doesn't the three fifteen the bar though represent congress's choice in allocating power between the agency in the courts for reviewing and resolving patent validity disputes and in that sense it's a statutory limit on the agency's authority to jump in and resolve these kinds of disputes and if you know if you come too late then you as a defendant have to remain in the courts well out in the congress but if you get in early then you can go to the agency and then  ideally you know it will be many times the courts choose to stay their actions which have in fact been going on so there's that there is this either or situation that congress is trying to create why isn't what's going on here and  it could have said as it said in section three seventeen for example three seventeen a that a proceeding instituted under this chapter shall be terminated with respect to a petitioner if and they could have said if it turns out at any point that the party was imprinted with someone sued more than a year earlier it could have to your point specifically around or it could have said the court of appeal shall not have jurisdiction to review or shall set aside any disses decision if a person was sued with property in property but that's not what it said here is arguing that specifically they got the office is not arguing that three fifteen b does not mind the agency of course it does that's the point of our representation concerning mandamus but congress also said that when as here you've got a pa determination whether to institute is final and not appealable and i would add that this statute says there was some discussion with my my friends earlier about that where that determination happens to be recorded in an earlier opinion or in the final written decision with respect to patent ability nothing in the scheme turns on that question the steps section three fourteen the set is the determination whether to institute not a particular written opinion issued at a particular stage of the proceeding if the board acting as the delegate of the director still wearing the director's hat entertains a motion for reconsideration because new evidence has come to light that ought to be to the credit of the agency for hearing people out but if they conclude that the determination whether to institute was correct well that is still the determination whether it's pursued and it is still foreclosed from judicial review do you view why congress used the phrase under this section three fourteen as opposed to say under this chapter like using three fourteen v well i guess you and i do have a view on that the law of judicial review so that's one of them i guess another way of asking it is under your interpretation does the phrase under this section do any work at all i mean as i i understand your view you could remove that phrase from meaning in part for the reasons that the supreme court explained in that paragraph and was it because under this section has historically resonant interpretation under robinson versus the robinson case and the trainer case but in addition every determination whether to institute under the what that under the section language emphasizes is that all institution decisions under this act are made under section three fourteen institution decisions are not made under some other section of the parties or views game they are made under this section and that is what gives effect to the congressional judgment to make all of the provisions that congress chose to didn't have to but chose to frame in terms of limitations on the institution decision derivation section a section one thirty five in section one thirty five there's a similar but tellingly different structure it says one thirty five a one says the director may institute derivations if she finds that the evidence  invention have been stolen and so on that section one section two says time now and then i forget section three but section four says the directors determination under subs under paragraph one shall be fine when on appeal so here we treaties other than three fifteen what else is title five in half well three fifteen a i would think as a certain and let me let me just answer the question this way at a anytime a person is coming to this court and same the patentability decision is correct or we're not appealing it but we want the judgment of the patent office to be set aside because the threshold institution decision was wrong we should never have had this question in the first place that i think ought to give us a very strong clue that we are talking about an issue that is formed goes from review by section three fourteen and the point at which which i'd like to end if i may is that this case i think it was straight to the reasons why congress would want to foreclose review of these questions because of course the absolute party here is the public interest the stat the patents at issue in this particular proceeding are certain to cover the wife the wife i wireless standard through all the judges of the court of the  did it is because the public has an interest as well in the questions of patentability and the public does not share that interest in the institution decisions congress one of the issues in the make decisions on what we do if we can forget the in the interest of public  view and that i will agree with that your honor and the supreme court said according mark mining and block versus community nutrition institute in the close a case that standard is met here thank you the course of the oral argument today has illustrated that the supreme court because of decision presents a tempting but dangerous possibility is not reviewable and the supreme court has said that anything less closely related might be reviewable and shenanigans would be reviewable so that it becomes the analytical task of this court to try and answer the question does the time bar of three fifteen fit into one of those exceptions that the supreme court told us about in cuozzo that is contrary to the analytical approach indorsed and followed by cuozzo by mott mining by block and all the way back to abbott labs in one thousand nine hundred sixty seven the supreme court has been consistently clear down through the decades that the proper analytical approach is first a presumption of review ability and second the that presumption is over only if there are clear and convincing indications of congressional intent to deny review so is your position even if there's a statute that bars statutes alph basically yes why isn't there was a found and said generally no judicial review or generally judicial review sorry but here we have a statue barring that that meets the presumption now we just have to determine the scope of the bar that the presumption is no longer in play respectfully your honor who ozo did far more than that in addition to citing the requirement of finding congressional intent look for congressional intent that's the difference you can't simply say there's a statute i don't understand that they look to it and then they saw this our judicial review and said the answer wasn't along the lines of judicial review is the rule unless there's a clear indication by congress the contrary and here the under this section language is enough to dispel the clear indication i think surely no reasonable spectator at this oral argument could conclude less than that and that language alone means that the question is not clearly and convincingly eviden the honest answer is i don't know i have not that's fairly easy can easy text to analyze i have not investigated the legislative history relating to that particular provision and analyze how it fits into the statutory scheme well enough to be able to say that it is been overcome or not you're going to have if you're right about three fifteen the bar figure out whether there are certain boundaries on one particular program one particular p t o program and enforce them it certainly relevant to consider the consequences of either defining or having a review of the application of those boundaries that you know this is sky is falling kind of consequences don't follow or do follow and that would depend on whether there are other that the director would have any reason or motivation to decide to undermine that review ability by saying well i'll just i'll just institute review on my own in your honor in the last few seconds of my time i would just say this again i think that any reasonable listener to this argument would conclude that there are legitimate issues here on both sides of this question certainly it has divided the court many members of this court have already spoken on this issue in the sense of concurrences my question to you is this under those circumstances  fairly be said that there is clear and convincing indication of congressional intent to bar review and i would urge the court