erroneous conclusion that the board proceedings was ongoing at the time of the action was fought in fact the courts proceeding had been concluded by virtue of a decision by the board on april th two thousand and sixteen which was the final decision in the case one month passed after that decision two months passed after that decision the proceeding terminated the one of our requested remedies is a notice of allowed the office regulation requires the examiner to carry that decision into effect that decision reversed the examiner so the next step is for the exam or to allow the case is a timely request for rehearing the previous periods going back where is the type period for rehearing set forth and where is that a any kind of statutory bar for them to se rehearing is there any type period for them to seek reply woods i would say that at this point the time period is that they can contention is when proceeding is over and the board does not have how is the proceeding over it has to go back to the examiner anyway even under your scenario for allowance i'm sorry referring to the board proceeding the period for appeal lapse how does that prevent the examiner with the proper protocols from requesting the board to reconsider its decision well that raises the question of what is the statutory authority because the statutory authority for the here is that this is a quantum back to the examiner the examiner who looked at it he's gotten a proper approvals from this higher level supervisor that he thinks there's a problem at the board in address all the arguments or this decision is wrong so he or she has asked the board to reconsider isn't that a proper function of the director and his designee no i believe it's not your honor and what statute bars that well i would if i may or on i would argue what statute enables the director to do that  the prohibition of the want to say it's final but you have to point me to some statutory authority that says the director can't do this kind of reconsideration well i would say i'm only speaking to the timeliness of it i would i would court proceeding had ended there was no longer jurisdiction and what is actually at issue here if i could explain is that is the consequences of the finality of that decision and in the patent office brief the office actually consented that or decision should be viewed as having the same type of finality that district court decisions have and there are prohibitions and there are consequences to a final decision the examiner could not deny the stoppel of the decision that the authority to disregard the decision neither the director or the examiner to appeal from that decision but they're not doing either they're period because this is not the board to respond to a re considering their ordering or it is the examiner after the case has come back to a b the director asking for the court to reconsider where is the time prohibition on examiner has authority to seek reconsideration from the board at any time after a final board decision while it's still pending with the examiner before allowance and that's a perfectly fine exercise of the d board's decision to us saying the board got it wrong reverse its eight reconsideration of the board's decision unless you have something that says the director is prohibited from that i think the director's got rules and regulations tribunals which entertains requests for a hearing this one specs petition why are you requesting it it's just that you lost an argument eight now you want to make argument be it to be fair if you want to introduce new evidence i can i mean ask a separate question putting aside the merits of this whether they're allowed to do it or not why is there even a final agency action that that's appropriate for a p a review in the district court i mean what they didn't he hasn't yet decided reconsideration and if you think that this whole process is wrong at the final four decision you can appeal and say this was arbitrary and capricious it never should have happened and you know we should get whatever you want probably that on issues respecting the pattern ability of the claims the board's decision is the agencies final decision that and and that's been now it under reconsideration or it should be only because the examiner requested t it's not efficient that the issue's been sufficiently decided in the court to go ahead to rule on it that's not good enough under basic administrative well there's none of those cases involve a situation in which the board reached a decision review by the board and once that is done and completed and final that proceeding is over i think the counsel you're welcome to rebuttal time off will give you two minutes for a bottle in the meantime let's  before the court this court to raise the merits arguments that it wishes to raise now but it has arrived here and you know timely manner and on the wrong path precisely as has the argument has already demonstrated in the district court correctly found the merits are not appropriate for consideration in this time the district court properly dismissed all three counts of odysseys a p a complaint for lack of jurisdiction determines whether there was a final agency action here i mean if the darker actually doesn't legally have authority to seek reconsideration in the way it did here then it's in the original court decision the final board decision and  it the rule the language of the rule says that the the requests should normally be made within two months but that's a guideline and there are this process is unusual and it requires very high levels of approval examiner has to get the approval of the technology center director and the office of the deputy commissioner of at an examination policy and if that takes time at times to to make those are arguments persuasively and under protest and so what's going on now is that at the board under reconsideration are they staying at based on this appeal it's stayed based on the a p a and the initiation of the a p a litigation  deadline you know that is a made doesn't it the precise language of the m p t provision say such requests should normally be made within two months right of the return of the application to the technology what about the language  says the case to bring up for immediate action by the examiner right that means that it it's in position for the examiner to take action on the application that the proceedings as of that time are concluded under the rule yes but i think that there is a there is a time where the argue full it's arguable that there prejudice arises for the patent application for five months isn't in your view that that time now i think that  if it you know in a really bad case scenario you know this was pending before the examiner after a board decision for like five years and at the conclusion of five years the board then think that's a question we should be reaching today it was an answer you have made that this is why we're here to test all you know it normally should be done in two you did in five which may not seem all that unreasonable but where's the line and if there is no  p then is rd any relief that you know pat applicants can have even if that argument were properly considered in a lawsuit such as this the district court should pass on that question for i know but i'm asking you a hypothetical you have to answer it i mean you don't have to be you're supposed to answer and well i i don't think i should answer that question today because we haven't made those arguments below and we haven't had full opportunity to make f term but you have an absolute right to relieve pain under these facts i don't see how you'd ever happen absolute right because and your view that the examiner has the authority under this to seek reconsideration and it's you know th preparatory not mandatory i think that's right your honor but i don't think resort to men damus would be necessary that's an extraordinary sort of last resort type of remedy and there is a provision under the a b a to compel an agency to act and i think at th time that the examiner has done nothing they haven't issued a notice of allowance they haven't reopened examination as they are allowed to do d contrary to those in counsel's argument examiners are not required to issue a noticeable allowance they have the option of really opening examination of this application but if they don't do that and they don't ask for a rehearing they've taken no action on it for an extended period of time then the a b a allows an action against an agency for failure to act for undue delay yes but let me ask you a question once the examiner requests a rehearing like we have in this case is all the time that spent dealing with the situation that's kicked off by that we question is all that credit back to the applicant under the patent term adjustment  well we're talking about remedy while ago that that could be a remedy or correct it is a possible remedy and if they were successful on that in the rehearing then patent term adjustment does allow for corrections it's spent on meritorious appeals to the board but to really to reiterate what the district court found is that there is no jurisdiction to get to these merits questions there's an adequate alternate remedy and as this court laid out in in previous the congress carefully constructed the patent act with the avenues of appeal and so the proper way to raise these questions is to wait finally jency action let the board decide the rehearing decision and then either appeal to eastern district of virginia under section one hundred and forty five or to this court under section one hundred and forty one and lace the question there but and tired part of the reason for waiting for that is that may all be moot altered the board has not made any decision on the exam or his request yet i get the odyssey may be successful in front of the board once again as regards t rehearing request and all of this winds up being at a tempest in a teapot that was completely unnecessary which is entirely the reason that this court does not allow applicants to circumvent the appeal path set out in the patent act by going through a also relevant are this court's precedent in automated merchandising system applying bennett versus spear there is there has not been a consummation of agency decision making no legal consequences have followed yet again odyssey mais ultimately prevail here if we don't have a final decision from the board then as  court in stone vi and that's why look at motive engineers and said a rehearing request render it's an agency decision non final and that those would be equally apply here but again i don't think we have to honour's have no questions about the rule making challenge i'll see the rest of my time if if the board rules against odyssey an odyssey appeals to we are we able to review or look at the procedural aspect of this case that voted yes that under the an automated merchandising systems reasoning that's the appropriate time for this court to take up the question of whether anyone here the remedy let's say we say that the consistent with the original or it seems to me to to be an awful lot of delay involved later and and understand that the regulation for example allow for an examiner to request for a rehearing but there seems to be something wrong and having an examiner take the amount of time in this case to reach a decision it's reversed by the board and the we examiner i mean the of all the pragmatic response is that we've taken a far longer path to get here via this a p a case that was improper and was rightly dismissed than it would have taken to simply allow the board to decide the rehearing decision and if there was an unfavorable result to have a proper appeal that question before this court and secondly i mean isn't the real answer to it if pathic and don't like this in p p provision and don't like the fact that the director has given then they examine as a law to do that that's correct and there are other avenues that would be open to the director to exercise direction over the board i don't want to get dealt too deeply into that because of the other cases pending before this court but those have been raised there as well the op the the director has means whether they are perfect or not of control over the board the nd part of my answer is that you could make that argument that as required to wait through that process when the opposing party would rather simply go straight to the supreme court that slows the process down but that's the process that we follow and there is proper provision here for agent and there is inherent authority as i said for agencies to reconsider their decisions there's an end longstanding and b p provision allowing this practice it's not exercised with without proper judgment it requires very high level approvals for it to happen which is why it's a rare practice and so i think that this court can be assured that this is not a something that the patent action that the patent office takes like so it seems to me that he exactly can exercise this kind of authority and allowed sam there's a secret hearing and lots there's a statutory prohibition against it and when you have i mean i gave you a bunch of times on your opening argument chance to point to a specific statutory prohibition against it and he did it to have something that says the director can't promulgated these examination rules i pointed type point t decision it can't appeal that decision it can't change it there was a at stake an allopath which was a timely request for a hearing and again to the right mr saeed has not provided any limitation on when this can action that board decision is a final action you are correct that there is difficulty under petition for writ of mandamus it's only for very unusual circumstances we believe the a p a applies because there's a clear framework here it was too long then why didn't you file that we file because there's a framework where our remedy on substantive issues is to the board and then it passes to the poker to examine who carries that decision and to effect under that kaiser decision those explicit that explicit language cannot be reinterpreted by the agency to its to its preferences we believe if the framework is clear everyone you know understands and it's been the practice for several years several decades that requests for hearings have to be made within a certain period of time one month or two months it would remind this court that if it received a request for rehearing five months after its judgment it would be categor rejected no we can extend the time to a spontaneous if we like call it is not a statutory part that's exactly the point and why you're wrong there is no statutory timeline for filing these unless in the supreme court has made it very clear and last is an explicit statutory bar agencies in court have the option to go to grant extensions even out of time since it is not true as a matter of practice yes we would probably reject an out of time rehearing petition but were not compelled to do so and i would say the decision on whether or not to to grant the request for a hearing is really decided by the tortie of the board not by the director because it's their