that you could be subject to review even cancellation that's right and then given the government the authority to do just that well it's given the government the authority to do it with respect to every patent the question is does it trigger sovereign immunity we don't disagree with anything unoiled states we actually think it supports our position because it recognizes that ip ours are a court lite that's the phrase the court used a court like proceed your report into to kotori body composed of the f m c decision had no effect it had to rely on the attorney general to force the f m c could proceedings also weren't triggered automatically the f m c pervasive person proceedings occurred when the when a complaint was received then the f m c had to make a that's correct it didn't it didn't carry over the question how exactly was this commenced and as the saying i think fast makes clear here that even though an i p r has the director plays a role in instituting the i p r and thereafter plays no role i mean there's no proof no participation by the p t o solicitor or the director in the petition withdrawn well but even then the p t o solicitor doesn't come in and take over the prosecution the panel just handles the case that that happens in the situation as well and f m c if the if the respondent didn't show up the rules provided that an adverse judgment could be entered or that or the current investigation could continue and the f m c could continue with the proceedings but i think the main question the main point i want to make is that the the article three question is not the same as the sovereign immunity question that we're not arguing that there is a violation of article three which is what oil states is concerned with you know what we're trying to d  and i'm parties don't have something at stake in this case only the patentee has something in stake in the i p r context and it's the reconsideration part grant so i i understand all the reasons you've articulated for why this is like a civil litigation in justice course it certainly helped you a lot by three separate places analogizing it's a civil litigation but then the majority in all states didn't help you when he said the dissent by the way those two cases really come to walker heads here in this exact instance for us i think because it's a hybrid proceeding so which side of the mind is a fall on and why right well i think congress made that decision two thousand and eleven i mean the house report made clear that this was a significant change in  you can supreme court justice it's three times over you don't need to rely on some house report we've got to follow them have to follow house report but i do have to follow the supreme court so you're on better footing in telling me what the supreme court said than you are what some random house report said which is not the law that's correct i agree just let's talk about what the supreme court said because i think in f m c there were the same public rights arguments the same article three arguments and the court just as if the court didn't even address it didn't reexamined would have been something where the tribe doesn't have sovereign immunity because your answer just like it is no because that's only one factor obviously the fact that there was a there was a role for the third party but it wasn't significant enough that's why congress changed it in two thousand and eleven and there is not only but that and i think the sas court made clear that the director's role in instituting does not change the nature of the perceiving from a from essentially an adjudicatory adversarial party based system that's all what just of course it's set in s a s i don't think the other thing to be prepared for the eastern district no because appearing this court held three times in a one to three systems in teacher communications and in the biomedical patent management case that appearing one forum does not waive sovereign immunity  basis of four and so there were actually thirteen claims involved in eastern district of texas and there are one hundred fifty seven claims involved in the i p r that's one reason why frankly the tribe has substantial right beyond what allergens rights are because the standard is different and i think out there was so it's impossible to say that the cases are the same proceeding because clauses says that i p r and it's just a court proceeding can come to diametrically opposed conclusions as the validity of a patent and so if expressly distinguished tribal immunity and said the rules for tribal waivers are narrower than the rules for state waivers and we cite a case in the brief from the contoured spa at the hardrock case the eleventh circuit decision saying that the supreme immunity and so congress that's a system created by congress it's not a circumvention of it is that in that case why didn't congress write into the ai a s a a community well if it didn't of course it's considering it now and that's where the ball well but not in a way that matters both of them are common lot of government is for grants immunity again so well the present government can abrogate the immunity it's actually common law unity that predated the federal government that's what they mills and hear what tribe said and i think that the the fact that congress can abrogate means of congress's job that just highlights my point congress's job here is to balance tribal immunity against other social factors and it will do that in this area it's liberal will know it what it said is in fact the court has made clear in our tribe and de mille's that and the oklahoma tax commission the state law may apply to six cigarette sales on the reservation to nonmembers but the agency and they can be enforced honest when they tried that goes to court the question is can they be enforced through a private civil case that is happens to be before the peats have bears all the trappings of a federal civil action the answer is no and congress should have known that if it didn't know it wasn't reading the decision in vast cathy and in f m c so i would lay this problem not at your doorstep but at congress's doorstep and say it's congress's job to change if it doesn't implicates unity and one that is not and that line is drawn in the supreme court's decision in federal maritime commission sovereign immunity is a right not to be subject to suit at the behest of a private party and the critical promise of the decision and for a maritime commission was that it would be an affront to a state's dignity to answer the complaint of private parties in federal courts it would equally offend there dignity to quote do exactly the same thing before the refused to address the grounds that were presented to the petition he doesn't have the discretion to have a partial institution the director has almost no discretion his discretion is limited to institute or don't institute and that's it so why isn't this exactly like an adversarial proceeding adjudicating rights between private parties when the director has no discretion to pursue any grounds that he or she he or she may think ought to result in the invalidation of this patent what is limited to the precise and only arguments raised by the petitioner in the petition so why isn't this the adjudication of issues raised by one private party against another private party just being held in the form of a reasonable likelihood of success but but even if he does make that finding he can choose for whatever reason this realization seemed not to introduce it all they don't have enough manpower to get through all these cases especially now that they have to do everything and all of them i get that  court says in three separate separate places is affectively a civil litigation between parties it's an adversarial proceeding between parties what do we do with that so the this is far from an administrative enforcement action practically all of a concious highlighted so what is it in seven sixty four that's so important but obviously escaped my notice from your the bottom of the page report says that it is the second to last sentence not counting the citations there are other features here also that i pyrrhus not necessarily committed by someone who has an interest the kind of interest that will lead to the commencement of a litigation district court you can be anybody anybody question was asked about you know how does that compare to civil litigation and you know that i think the answer was that judgment can be entered against a plate of food drops out in fact if the plaintiff drops out judgment must be entered against them because there's no longer a case for controversy at i mean it in some respects but in the respect in the sense that's relevant to the analysis of the immunity question you know this is a an agency a rector can do in nike are is review only and limited to the precise grounds articulated in the petition so it's not a redo patentability it's adjudication of particular issues and arguments enough enough to get us into the land waiver of the tribal community that's that's right the petitioner gets to frame the question but it's up to the director to decide whether or not to answer it and the director can choose not to answer it at all and if if he does decide that he wants to answer then you know the reason that there is a proceeding involving the tribes patent is not that they've been held in the court by official and ends only with the cancellation of a public franchise not with the monetary or injunctive relief of the sort that would be entered by the court and so what that the tribes position here really amounts to is that they have the persever the stoppel i mean you know the person who brings and i p r has something to lose well the right to have an article three tribunals adjudicate not only the particular validity claim the p t o has picked up but anything that person could reasonably ha brought at the time they brought the i p r so the person on the other side does have something to lose you framed it as though they don't you friended as all that there is here to be lost is the patent by the trial but the person who brings i p r does have something to lose in this case for example for example you have you could lose the right to have an article three tribunals adjudicate not just these issues but all issues well that's certainly true your honor but  proceeding akin to civil litigation with both parties have something at stake unlike a grant of patent or reexamination where there isn't an expert to reach emanation there isn't the same stick w private entity that happens to be involved or not and the nature of this proceeding is it's one that was meant to as much as possible replace civil litigation it's need to resolve political issues by taking them back to regency so it was meant to be a substitute for civil litigation now congress opened the door broader than that surely they did and that maybe makes a difference in this case but but it was meant at heart to be that but regardless  is with respect to state immunity also a strong presumption against waiver and if i may here was some sort of potential waiver if the tide had brought the civil litigation and then in i p r a concept that i'm finding very difficult but if there was such a thing wouldn't cases like cole and lisa mcpherson's wrongfully switch come from the regional circuits cut against that notion because both cases say when a trial steps in or a and steps in to a litigation this is civil litigation steps in as the person who assumes the rights and owns the property and they step in even though if the litigation was started by someone who didn't distinctions there and with picking up on ms not really sort of the first circuit case in particular in that case and in the other cases that the tribe is relying on the transfer was from an entity that had litigation and suggested that in that case were they there was a case where the court had found that there was a waiver of immunity in purchasing property that was already subject to litigation and so the were treated that as a different scenario and that is much closer purportedly purchasing the patents subject to all of that and is now asserting immunity and i think one can characterize that as circumvention or one can equally say that that's conduct that amounts to a waiver but i its review which is that it is the reconsideration of the government's decision whether to grant a public franchise that is the express crown on which the court upheld the proceeding against arguments exactly like those events from a friend today namely that interpreters review is just private civil litigation transplanted into a federal agency these are our proceedings and we decide whether they even say that it's simply civil litigation and i mean i thought that he took up what felt to me like a very honest approach of it being a hybrid but it fell on the side  i agree and i think i think my my friend put it the right way the right way to reconcile oil states and sas institute is that under the statute the way congress drafted the scheme the petitioner gets to frame the question the petitioner gets to say if you want to reconsider none in my case somebody else can petition their case and frame the question differently if you're going to take my question here's the question i want you to answer and the director has unreviewable discretion whether to decide to answer that question you can say no i'm not going to answer that somebody else come along and ask a different question and furthermore if he says yes and this is a point that we didn't quite get to in the previous arguments he can keep going with the proceeding even if the parties want him to stop and then when he issues it decision what comes out is not like any federal is focused on the panel so not on any type of damages or functions of reparations you know i think that underscores what the reasons why the supreme court concluded in well states that what these proceedings are or reconsiderations of the government's decision to that either amends or cancels or affirms the claims have been issued patent and that certificate is good against the world at large it is not a personal remedy to the petitioner it is a public regulatory act of the united states government and no indian tribe ha had been issued you know nobody would think that just because the petition to the privy council in colonial uproot pre colonial england was begun by a petition by a private party that it was the private parties cancellation of the patent it was the english crowns cancellation of the pa and for the same reasons what is happening here is is the united states patent and trademark offices decision to reconsider whether it granted the patent the first place we have political accountability or it's all right to cancel that conclud time the remedies look similar in some general high level sense but they're not because after all you have to have standing to bring it to court or a judgment actually have to have concrete article article three case or controversy to get in the district court what you don't have to have is that sort of controversy get in front of the u s patent trademark office because this is our decision for which we are accountable it is an action of the united states government against which an indian tribe does not have sovereign immunity and for that reason w court to hold that the board correctly said this proceeding can proceed and in any translocation my recollection is from the supreme court cases that in order to cancel a patent has to be brought at the instance of the patents that the claims are typically brought affirmatively by the united states just like in the atlantic telephone telegraph case of the united states brought the action to cancel the telephone patents and the point we make in our brief of course is that if a private petition it came to the government and said please file a civil action to cancel this patent held by an indian tribe there would be no immunity objection to that of course we can do that and it wouldn't change the fact if we were told by congress when a private party does that you must accept the claims they bring to you or place special emphasis on the fact that the commission had no ability to turn down a non frivolous claim a complaint from the police one complaint from the stuck to their brought before the agency they had to adjudicate it and if the party didn't show up their state didn't show up judgment and the court connected that to an important principle in immunity which is political accountability the court said look what congress has effectively done here is placed in the hands of private parties the political accountability for imposing liability on that is impermissible but the court went on to say of course that the commission itself could have brought the very same proceeding or furthermore that it could have done so at the behest of a private party the fact that everyone agrees in this case the director of the  we're not taking your case we're not having you we're not instituting review on any patents held by indian tribes means that in fact we could do that means that if we decide we do so it is our choice we are politically accountable for it we all know that when we can't see the flames we own that addressed a similar question with respect to the merit systems protection board and said that there although the board had declined to address the constitutionality of the selective service system that it was unclear why the board couldn't have addressed that question and in other administrative cases and thinking for example rich ever since f c c case in the supreme court at the moment in ministry of agency freedom of the do address whether the statute violates the constitution on its face but if we're speaking in constitutional terms i think we know the answer right i mean that's what will states says it said this proceeding constitutional precisely because it involves the reconsideration of the ages that's my point the supreme court said that yes and i'm yes and set it on a particular ground and this goes back to a point you made just more our point is not that because it involves public rights in the purchase review is necessary necessarily doesn't implicate immunity presumably the federal maritime commission case also involved public rights otherwise it couldn't have been adjudicated in an agency but can i wind up as part of that i know i'll hear your points up it can be wound up as part of the decision making  decision making be a combination of the nature of the proceeding and the nature of the right at stake taken together in this weird hybrid universe that leads us to this conclusion about cyber immunity the you want us to have trouble in unity and couldn't be a combination of the two or do you really think the nature of the right is not relevant to the analysis it's something i think is not relevant to the analysis but let me put it this way there are some types of proceedings that simply by their nature do not implicate the immunity of a domestic sovereign and the supreme court address debt held by a state and the state said sovereign immunity and what the supreme court said was no look the nature of bankruptcy in the court upheld for many years that states can be subject to bankruptcy proceedings and they said it didn't matter that those proceedings were adversarial in nature it didn't matter that your question earlier the state or the petitioner had something to lose by having a stop alike effect having brought the claim in the first place the point was in bankruptcy the states didn't have an immunity objection to raise and s t in the us p t o proceeding we think for all the reasons given by the board we can all kind of recognise a shell game when we see one and what's really going on is that l again remains for all practical purposes the patent owner and it can defend the proceedings but the question involving eleventh them immunity we think the right way to dispose of this case and to provide guidance with the court and the parties in the bar and the agency is to explain that interparty is review is the agency's reconsideration of the decision everyone agrees it's entitled to make in the first place friend acknowledges f m c involved docking rights of public ports that you could imagine the agency making the same arguments in fact it did make exactly these arguments were the supreme court saying we're not our decisions do not implicate sovereign immunity because we need to be able to decide how to implement rules regarding docking a public court for quintessential public rights if we make a mistake we need to reexamine them we use they said this in the u s supreme court we used private complaints as an investigatory tool to understand yes or no with the p t o has authority to decide that question have an issue yes it should have recognised the there was travelling unity as we see the system working from now on the director when he gets or he or she sorry yes so you're running out of time but what i really want to know is how you respond to what i think the strongest arguments of both the attorneys on either side of me is the argument about the director happens discretion here are similar so when you're making the sentence immediately prior to the one my friend on the other side quoted to you in the f m c decision on the same page of seven sixty four this is the prosecution of a complaint filed by a private party with the f m c is plainly not controlled by the united states but is controlled by that private party and the only duty assumed by the f m c and hence united states is to assess its merits and impartial manner and then it goes on to say and in fact they don't even have to institute well that sentence that i just read is exactly the fast point about i p r the i p r is controlled by the private party not by the director the director makes the decision to institute but then doesn't have political responsibility as your honor said they're paying the directors not making putting the of which i mentioned it's was number i p r number twenty fifteen seven fifty is an example where the director where even before the director instituted the peach have heard discovery disputes an issue sanctions on the real party an issue the real party in interest question but i think that the just the just discretion whether to institute or not does not affect the overall scope and nature of an i p r as a private party mc and that process was adjudicatory in the same way that this is the exception of the directors discretion looks like it looks like it's a difference but it isn't a difference that makes a difference and if you also i think that the court actually exaggerated the extent of the director's discretion or underestimated if you looked at as i mentioned before section seventeen ten b which is the section governing the f m c proceeding the director did have discretion in how to commence an investigation but when you get down to the when you get down to the resemblances the overall purpose of the proceeding is not determine to do the means by which congress a directed t r s to proceed that is that resembles the same a