judgments be given in subsequent litigation because the statute issue has expired if you look for me you'll simply be affirming the value of consent judgments based on stipulation without creating a broad patent office on the first ground so you didn't do this you didn't do that into this each of these petitions at the time was causing one nine hundred forty dollars since the exact same issues were present present in off or cases we file the second petition and  that petition only from sixty four percent but the issues would be the same however that was decided we believe would control of four cases so that dismissal that that's what it became water under the bridge when when the the final decision in the sixty four patent case was issued the answer to that is they were saying that that only certain claims are at issue what we did is we presented it in the renewed petition for the sixty four patent we presented the answer which included all still the key claims in our case but but then that the defendant crane in that case requester was under no obligation to try to mirror that and reduce their validity challenge they did that voluntarily and so that was their choice would be rather than using this court's time to do try to wade through that the evidence i think it should go back to the to the patent office but critically also from my perspective is the district court didn't come in and say these claims of the are valid it went back to what was originally put it issue by the complaint in the in the counterclaims and said the claims of these patents are valid didn't identify specific claims so cream stipulated to that crane was it either reflects that the court's decision was worded to suggest that the court decided that no consent judgment is based on a court decision that's a whole different animal so what if you  i'm not saying that you know what i'm saying is that the statute doesn't require that the court decide in fact the final decision is a terminology that frankly has very little to do with the pair the court that it's not a stipulation it's a consent decision you're stipulating to it but it's a consent to say ok it is but that's that's the policy position that we're that i want to talk about and that is courts this court in all the courts to my knowledge follow the same practice and that is consent judgments are treated as on the merits to the extent that think they actually specify what what what the issue is in this case if you look at the consent judgment it's that appendix one five zero nine in volume two of the  patents and was the patents are valid so to say that that's simply a stipulation to be given no effect i think has undermined the value of consent judgments and that is a major policy concern historically this court rules on cases and i've had cases and i'm sure each of you have had cases where based on what happened below the party stipulate of lydian infringement in order to get a review probably of a marking claim construction which is dispositive this court which can only here  only has jurisdiction over appeals based on final decisions from the from the district court always except those decisions those consent judgments based on stipulations as final decisions and that's true of every every court every case i've looked at the the intervenor points due to a nine hundred fifty three supreme court decision this is no no these things are only to be treated as pro forma except into what the party stipulated to in your are you know the judges actually do look at these things as you suggest and think that's a final decision but again i think if you want to get under slippery slope of a thinking what was the judge thinking the final decision according to statute doesn't require that the judge have made the determination and that's the interveners position have i'm looking i don't have the right of your head but i'll just tell you what they were and we've been offline the while the other side speaks but what they were was we had a mark mcclain construction from the district court and we presented that as an attachment we also had said that's it it doesn't extend down into the retrieval then but if you look at the claims that are certain the claims are in dispute they always have that then space going from up there down into the treadle then in so we feel that that want you to  completely ignored because the probably the primary reference that they use and every rejection had a device they had divider between the above area in the in the in the retrieval bit so we said there's no way a product can for through their freely meaningless reformulate but what really undercuts that is that they had mended in their first appeal the prior appeal of this court but they went back to crane the requestor and said will you agree to go with us to the district court judge and request a new consent judgment request you know to modify the language in accordance with what the p t o suggested and craning declined that any tell us why that matters i mean looking at what the statutory language was intended to allow with clothes determine there's a significant new question of patentability we are required to take that to resolution and make a determination and three seventeen is an exception and there is a non discretionary duty to terminate the proceedings a question has been finally decided by a court or another reexamination proceeding but it's narrowly tailored in the plain language of the statute because otherwise we are obligated to carry the examination for it which is what we did here and that's exactly correct and in fact it's unclear who else's decision that would be and as such well point out there is there are situations where court adopts findings and the parties could propose a finding the court could sign off on that now you could get into some difficult line drawing questions if we try to get inside the judges had and say you know was there a substantive an out of valuation to an earlier point an earlier question but we don't try to do that w prior proceeding i'm not sure why am i think it's improper to look at those but we've been very consistent with those with the minute exception of these codey inputted decisions which we've addressed before so unless you are  i mean i have to tell you it still troubles me a little bit because it seems to turn on the notion of whether the stipulated judgment includes the words the parties agree that the patent is valid or the and is valid if they had left out the parties agree that and the district court had otherwise or the stipulation and the consent judgment that seems like it would have been good enough for you well because then the judge is adopting the finding and i think there is a policy reason to make this distinction and that is the parties to agree to dismiss lawsuits for a lot of reasons and here particularly if we look at the consumption which meant the parties are stipulating session it's not beyond just a court judge's to say send it back and say give me findings and conclusions as they go to do that and i think that would be appropriate here in fact in this case the judge originally just in that in that hypothetical right well in this specific case in the district court case in west virginia the district court judge originally just entered a judgment dismissing all claims with prejudice and said you come back to me if there's anything more i'm required to say and they came i mean that seems reasonable to me and i know that in the cases that have been cited in this dispute if we look at even for example that supreme court case there was a stipulation but then it was followed by an actual entry of an order adopting the finding with respect to the tax liability and specific years and that's why that became final but again congress made a policy decision and notably it's a different policy decision than they made in the a for post grant proceedings like ip ours were three seventeen was actually renamed settlement and the parties could just come to the patent office and say we've agreed not to pursue this anymore and that p t o can drop it the affinity labs case but the court didn't alternately need to reach the question because there the judgment it was a dismissal without prejudice and the court noted that the court hadn't made a made a finding that there was similar stipulation decision they really are questioning the reading of the art and the board went to great pains to step through the art in each of these cases and in fact almost the entire first volume of the appendix five hundred pages is the board carefully stepping through each reference the teachings why someone would have been motivated to combine them and why the art was analogous and i think it helps to take a step back and say what was undisputed here is undisputed that we had many machines with transparent fronts we had vending machines that had then sensors a term of a product and had in fact been delivered to the customer we knew that there were a limited number of types of sensors that were available for someone to use and we know that optical sensors had been used in several vending machines and moreover we know that optical sensors have been used in many fields of endeavor this isn't a situation where the board of the examiner plucked out a single reference from some disconnected field there were several references including the seed dispensers but machine that meets all the other claim limitations and already had an electro mechanical than sensor so to would have been obvious to substitute that for an optical sensor which could sense lighter and smaller items more accurately similar problem those reasonably partan to the machine designers which was how do you detect these small items as they're falling through a large space and that's exactly what you could learn when you look at references like drag me and brad and and one of the quite like to make about those that think it has much attention and certainly not in the blue brief is that dragon friend both were found to have not only mechanisms to deal with ambient light but also calibration circuits and even the judge who d mechanical to electro mechanical and what do we have here we have a vending machine with an electro mechanical sensor and removing to an optical sensor is the natural progression of the art and unless your owners have other questions on that the device and or that the emitters are weak over years you can increase the power and they're saying that's essentially the same as calibrating and we've never agreed with that but i do want to go back to the three seventeen b issue because you couple interesting all meant we've got so many here we've got all the terms but we don't have time you don't have it you don't have the consent judgment you've agreed to in front of me but i'm the chief judge and i'm after all the other judges in this district because of all the cases this is the oldest case in this jurisdiction by five years because we had we had twelve or exams that the case was stable of those reexamined were pending so he was he was very interested and you understood that he was going to dismiss that but then reopen  once we had all of all the consent judgment that we agreed to finalize in the so many executed so that that's what explains what happened and i don't think it's a question of any significance but that if you are interested that's what happens the patent office continue since they have a duty upon a finding of a substantial new question patentability the duty to continue this resume anation i don't agree that if you look at three thirteen it is has a duty to open in you know parties reexamination not to continue it no matter what happens in fact three seventeen terminate secularly in expressly says you can't continue you may not thereafter maintain this action with this proceeding so just because they found us initially petitions all of the cases where the the intervenor now says they're consistent all of those cases are of recent genesis in fact we may be the very first line and the reason that they gave their reason for denying our petition to terminate parties can agree in writing to try to request terminations and the patent office has two two responses the first one is automatically the petitioner if they ask is relieved from for the participation but then the second part of that of that provision is at the patent office has discretion to proceed without them so it's a whole different it's a whole different ball game there is the adoption of the a three seventeen doesn't really reflect i think it all on the  if you look at the cases they really are in the national building supreme court case and if you need a lab case it came down from this court within the last year or two i think both of them squarely support our position that stipulations in a consent judgment are treated as final on