like your honors good morning and made pleased to court on my favorites with my vision richardson on behalf of mayo in this case the continued examination did me all requested was complete when the examiner indicated that the claims were allowable with the regulation at thirty seven c of our forty one point one zero two examination had been completed in at least one claim and been found at will but for the interference the patent office here and the district court there after improperly charged the post interference time to mayo and in so doing they ignored the broader principles that were announced that was announced in the darkness that after claims are deemed allowable the additional time for the the lay statute the regulation does say that even the patent office itself has recognized that in certain circumstances it would be appropriate after a notice of allowance has been issued to reopen and then charge that time back to the was cut off and so we view this in this as a case in which merely there is an application of the broader principle of novartis and the analogies in this case mirrors and no heart is quite nterference is declared once that interference is declared the board takes over sole jurisdiction over the file in the examiner may not act unless specifically directed to to stands for the proposition that the applicants should not be charged for any time once it is clear that the application process is complete and in this particular instance the request for continued examination that correct we would suggest just laurie that a notice of allowance is a specific document that is issued by the patent office to indicate that the claims have been  application examination that you a question we did request a continuation examination but we would suggest that the time up to the institution  declaration of the interference is in fact what it is that mail actually request because at that point pursuant to the patent office his own regulations the claims that were at issue were deemed allowable itself is already deducted as a part of c delay and i don't think there's any dispute between the parties that the time for the interference was to be deducted and properly so but at the point that the interference indeed having already concluded as a necessary predicate to instituting the interference in the st place that the claims were allowable that your problem is that the p t o rules provide for continued examination after the term a nation of the interference and before the noticeable out right well i do they do allow for the examiner to do something in addition i'm not sure i would would say that it's continuing because that is a distinction between what the applicants requested and what the p t o on its own may agree to do we don't take any issue with the fact that the examiner in this instance after the the board of patton appeals and interferences returned the file to the that the examiner decided to do another search the examiner was perfectly entitled to sitting right now the team host at the ferrous i understand that the government has said that in their brief but we don't have any any evidence that that is routine post interference and in fact that we think the facts claims that patent which a new examiner after the interference had concluded and mail was declared to have prevailed those were the claims that were ultimately subject to the double patenting project and so the board itself could have instructed the examiner to reopen not continue but reopened in the words of the m p e p examination but he did not do principle no heart of this as we see it wasn't definitively saying that it is the notice of allowance and only those of allowance that determines when prosecution has closed and the language of  happened here was at the close of the interference the examiner opted to reopen examination conduct an additional search issued double patenting rejection and then when mayo responded the double patenting rejection was withdrawn i'll note also that there is no dispute between the government and mayo that during that time period mayo did ask for a one month extension to respond and that time was counted towards applicant delay and so there was there was nothing that occurred after the interference was completed that was d request for continuing examination the outcome would have been different and i think even the government agrees with that and that is that had the suggestion of foreign interference taken place  during the initial application and pendency of the prosecution before the request for continued examination was made and then everything else occurred exactly the same and that the  that ultimately the interference head been found in males favor the time after that interference under the regulations would have been counted towards the government and i don't think there's a dispute that mayo would i well i don't i do think it makes a difference only in the sense that the statute itself and the implementing regulations say that the time that is counted against mayo is only the time leading to the requests that made  this instance the requests that mail made for continuing examination was that the patent be determined to be allowable that happened when the board issued the declaration of interfere  applicant is the time up until the mailing of the notice of allowance on page six hundred and two dollars of that opinion twice the use the phrase mailing of the allowance and there is no dispute between the parties that's what the p t o did hear that in our view should in the case no mayo claims that novartis announced a broader principle there is no evidence of that and novartis itself but even if there were the the principle of novartis would be the continued examination requested by the applicant and when the application that certainly did not happen at the time the interference was declared there another two and a half years or so of substantive review after that period and as judge tell it judge ellis held below it's quite common for this examination to continue after the interference it's essentially required mayo is not entitled to a patent as soon as the interference ends the examiner has to look at the state of the art at the time the interference is ended determined whether a patent should issue and mayo i think acknowledges several times in their brief that in fact examination did occur well after the declaration of interference mayo that's my arguing that that time was not actually requested by mayo but of course the only reason we had interference and attenuating examination afterwards was because mayo filed an r c asking for an interference and further that r c remained pending this entire time all the way through interference all the way through the examination afterwards up until the allowance was mailed only two ways and in r c either the notice of allowance gets mailed or the application is rejected finally and abandoned obviously neither of those happened during the relevant time period i think in a way even mayo agrees its opening brief a page fifteen minutes describing the court's decision anew vargas said quote the applicant's continued examination request is responsible for all the time up until  and so in our view that shows that entire time period up until the mailing was in fact mail is responsibility i just disagreeing as to what allowance me it's correct your honor but again as we said novartis doesn't have any indication of that and novartis expressly referred to the mailing of the allowance and there are key distinctions between me or allow ability solely for purposes of kicking the application into the interference process which is what happened here and i'm going to read that mr davis cites as opposed to actual allowance in those key differences are ones the new virus itself address i e whether examination is likely to continue after that point your honor and i do think finally it's worth pointing out that for purposes of a delay time running against the p t o for responding mayor agreed t requirements are met here there was in fact continued examination well after the declaration of interference and all that time is attributable to mayo's r c and that's why the time can't count as bea as judge alice addressed his decision if the court were to adopt mayo's position there would be absurd results there would be very difficult pragmatic results i won't go into all of them are brief lays out several judge allison self laid out several and again that's why i think that the bright line davis yes just briefly in response mr mccotter said that it's clear that mia was not entitled to a patent after the declaration of interference it is also true that mail is not necessarily entitled to a patent merely when the notice of allowance issues that is a point in time in which the file moves to another area of the patent office but the notice of allowance itself on its face says that the and again in the government's brief argues that that what is opposed by mayo in this place would lead to observe results but the example that i believe judge ellis gave that the government repeats in its brief is an example where an examiner indicates that claims are allowed all over the phone and so there's no written record and that could lead to all kinds of difficult and challenging result and that's not mayo's position here males position here is there needs to be some sort of clear written indication that as far as the patent office is concerned that the claims are effectively deemed allowable and our position is that here in this case that is when the declaration for interference was served on the parties briefly the m p p itself says there's a recommendation for further action after the interference in the examiner must allows those that prosecution to be reopened after the interference much in the same way that the p t o on its own can reopen prosecution after the nose allowance and so in the end we would say that it is it is there's no doubt that the notice of allowance itself is one period at which a bright line can be drawn but that is it's not the only bright line that can be drawn and there are particular instances of which this is one where it's clear from the p t s regulations and i