kriti to decide whether either claim or issue preclusion in case number two is going to be given to case number one well in the in the district court context we made this point in our reef the a court addressing the situation would consider all the relevant facts up to and including the time at which the court makes the decision so that so that if the acquisition let's say a year and a half into the litigation of case number two and precluded as a result of having acquired the assets at issue in the case that's that's right i don't believe there's a case immediately answer the question converse lee as well your honor i don't believe there it's a case cited by you to a party that says in the in the in the district court context that a court would put the blinders on as it were and assess the situation only at some artificial point in time why i felt a little bit at a loss in the briefing altogether for a discussion of how the counterpart situation in common law preclusion would work because that would seem to be to be extremely relevant to how one resolved any ambiguity one might for three  there any dispute that the policy underlying the statute favors preclusion and so there hasn't there wasn't any just dispute as far as we're aware by on we made the point in our brief that a court would not course of a district court proceeding as opposed to that time of the complaint or the time advance or some other to get by it on this record i think the answer is yes your honor i mean if you want to with all but all you know  i mean this this was not an issue that was briefed in any detail on this record because it it actually wasn't well as well i mean i'm just trying to understand if if the words of three hundred and fifteen dollars b or something that's less than clear th respect i think this is an area where the p t o went on get it wrong they want to talk about filing of the petition in only filing date of the petition matters but the statute actually says review may not be instituted yet so so the board a role cannot do something as of a certain time namely institution if this prior condition has been has been satisfied so i so we think it answers the question actually that at least you have to consider what happens institution now can you also what if the condition that you're referring to demands that any privity relationship past two or desist at the time of filing the petition then you don't win you lose that if the statute said that i'd agree with you but of course it doesn't say that i mean that and that really is our point the statute does certainly doesn't say what evidence can or should the board consider not consider and and more to the point can the board only make this is assessed monetti particular instant in time that pre buy by definition will predate the decision point to the point at which the board is actually assessing the evidence and making the decision and i think if there were a rule that record show granting motion to dismiss for lack of jurisdiction them the for lack of jurisdiction would still subject to certain exceptions being measured not at the time the district court was acting on the motion but at the time of the filing because it was a very strong background rule that says that right so what's the so the i think that judge chen was suggesting as i understood it is that  the fact that this says that the because the the review shall not be instituted doesn't automatically mean that the condition is assessed at the time of the decision on institution if you have a further argument that the condition as stated doesn't itself point to a earlier date but that's the point i guess which common on background seems at least relevant to understanding tries to embrace that insight and draw an analogy to the time of filing cases the reason a district court when faced for example with a motion to dismiss in implicit in your question is for lack of subject matter jurisdiction or jurisdiction of some sort is that jurisdiction has to exist as of the time of the filing of the complaint and that is why so there is a very clear rule on that issue in that context that that is when you assess when jurisdiction exists in the you don't revisit it subsequently you know on tuesday and then wednesday and thursday and friday for the reasons explained in the time of filing cases but that isn't a situation at all in fact it's if anything it's the converse against the statute says that review may review may not be instituted the focus is on institution it's not on what what the state of the world was at some earlier arbitrary time now of course if it's true at that earlier time that there is pretty or you can validity of the patent was decided under a different burden of st wage and it's ancient law that when that you if you lose under a high burden of persuasion that does not preclude you from lit fair enough if if you if you assume the outcome would be different under the different burdens of instant followup it's different prior art that was given earlier district court case question as to whether there was privity at the time of institution or nah but then i heard you say something like if at any time there was privity then that would be sufficient for a bar so for example what if on and fairchild i pathetically had been in privity with each other at the time of filing of the petition but then for whatever reason it gets extinguished two months later so they're no longer in privity and now at the time of institution you can't say that they were in pretty you still would consider a situation and then in might that the scenario consider one that they can still consider them as being barred not necessarily i guess my point is in my in my hypothetical i was assuming if you had privity or proxy relationship at the time of the filing of the petition that then they would you know barring change in circumstance that would of course these also be true in institutions so th no they would not the petition would no longer be barred well that's an open question i think the way the statute well the way the p t o itself interprets the statute the answer the question is there would be a regardless if the world changed later because of course of their view it's all about only what happens at this time of the filing of the petition to congress speak to this directly no his or regulation on that no i mean in other words as to what happens if this if the if the facts change in so that would be you know that would be a different issue it's not presented in the in this case you has no use most of your rebuttal time you can save the rest of my story a little bit i think i will save the rest of my time i think i'll give you three minutes good morning your honor is and may please the court the director intervene in this case to address the statutory construction of section three hundred and fifteen b the statutory language here is clear it is the petition and when it is filed the triggers when the time  are applies and as it was clear during my friend's opening argument just curious if it's not clear or is the agency making any kind of argument that it entitled to some kind of deference if is a non presidential decision st of all the board decision is a non presidential decision and nd of all the board's decision seemed to be based on a view that the statute is clear and unambiguous it wasn't making some kind of analysis of well st step to abuse in the us and now we have to figure out what would be a reasonable construction and have to consider all kinds of interesting questions before we decide what would be a reasonable entitled to deference as of that issue that issue is has that issue here it's relevant but at the same time that that decision does actually reflect that  any non presidential board opinion correct that's correct but the decision itself well stars what the agency's what the agency's interpretation of the statute would be and maybe it's not entitle relevant but in general preclusion can attach you know at five minutes before midnight in a seven year litigation well i think one of the questions you directed to parish and counsel is relevant care and that is what the common law common law decisions as to time of filing and how they apply in determining a course or section and what the time of filing rule indicates is that it is the time that the complaint is filed that is relevant in determining whether that complaint is proper and here it is the time that the petition is filed that determines whether or not institution made if the institution is barred and so it makes sense that the board's construction of the statute is in compliance with such provisions in common law is the time of filing roll and therefore the board's construction of the statute should be considered to be permissible it also makes sense the board's instructions actually also make sense in view of congress's intent that's shown here april and in our briefing here but briefly to touch on some of your questions that you raised when my colleague was at the podium the the guiding principles here after your colleague which of your two in taylor versus sturgell which is incorporated into the office trial in practice guide and provides a guiding light light in terms of when to apply nonparty preclusion and in those categories what we can see here is that  categories do we are you getting to an issue that is distinct from and maybe even subsequent to the question of the time at which these standards would be applied there's no doubt right that that by the time of the institution there was pretty everybody agrees with that there's a dispute about whether because of the agreement to merge  merger hadn't closed yet there would have been privy at the time of the petition but that's not what the board relied on and hadn't been to the standards of the sort that you're talking about that the look at the time of institution and if you look at that data the facts at that that were true at that time then there's undisputed provided it's true your honor that the parties don't dispute that pretty existed as of the time an institution but our argument is that the common law analysis for issue preclusion can't supplant the statutory scheme here and under the statute it clearly and unambiguously assesses the pretty determination at the time of filing could convince you the same question that i think we were discussing earlier just for purposes of this question assume that the statutory language doesn't clearly answer the question and that it would  i'm not sure that there is a definitive point in time and under the common law the issue is often raised after a st judgment has been rendered and a non party who didn't participate in the proceeding or rendered the st judgment is being bound as being  the parties arguing that they're being bound to that judgement and i think what's important and to look at in terms of the common law principles is that the non current is an earlier not case for the commentary that this  ready now alleged to be bound was a complete stranger to proceeding number one but now this party actually opens the losing party in case number one journeying while the not authority would have a full and fair opportunity to litigate we see that in for example the astra zeneca case the nonparty acquired the party that was a participant to the original litigation during the litigation before a jury verdict had been rendered and at that point the court there said this non party has a full and fair opportunity to litigate the issues under the the elements of issue procrit preclusion law and in effect whatever closure repose is given by finality really should not be disturbed by the loser selling itself to a new person i think that's still bound up with the the new person having a full and fair opportunity to litigate that that's the standard in which we have to govern the body but almost by definition in that in that circumstance the new person comes in  later didn't have a full and fair opportunity but now comes in and says you know you got a five million dollars company and a three million dollars judgment the company's worth two million dollars i'm going to pay you know two two and if i suddenly have the opportunity to challenge know eyeing the opportunity to undo what would otherwise be simple in that circumstance there may be but the distinction here your honor is that on semiconductor had its own products and was a participant in this industry they  competing products they were aware of the ongoing litigation between power integrations asserting and amass of patent litigation campaign and so they were concerned legitimately about the validity of these patents from that perspective of having their own products and being a market player and we can see that as reflected in the merger of the minute self which required antitrust approval in order to close that that on semiconductor here and fairchild were both market participants  industry if i think i read in the merger agreement this was a fixed price twenty dollars a share at i'll take your word for it your money for it says so at that point  political certainly on has an interest in the value of its merger agreement with fairchild here but i don't believe that that particular argument was raised in part of the record below in terms of on interest   would would matter not the principal question we have in front of us is whether institution is the time as of which previous is yes your honor and i will i want to draw on one of the hypotheticals or one of the examples that you raised earlier which is that the reason why pretty needs to be assessed here at the time of the petition is because as my colleague alluded to the circumstances can change the world can change and so what could happen here is that we know from the record evidence that this the announcement of the merger which occurred in november of two thousand and fifteen was a public announcement of a future merger subject to conditions precedent what would have happened had the conditions president not been satisfied had they not received antitrust approval under pianist theory there would have been this there would have been this st period in time in which on semiconductor and semiconductor components industries were not time barred before the announcement of the merger then there would be this intervening period of time in which under p i's theory after the announcement of the merger comes out on semiconductor an all of a sudden time barred and then once the merger agreement failed to occur by virtue of not receiving and to trust approval or a number of other things there would have been this book and period of time in which all of a sudden the party the petitioners became not time barred again and that is contrary to this court's decision in wife i was one that assesses the timeliness of the petition it would it would be inconsistent with life i want to have a later filed petition be timely under three hundred and fifteen b but an earlier filed petition one filed during that intervening window untimely under three hundred and fifteen b and that's the world we would be living in and we're p i's position and interpretation of the statute were to be adopted i also why i wanted to point out that the board's interpretation here should be entitled to chevron deference because the board has promulgated a rule so just parrot the statute it doesn't your honor and the reason why it doesn't just parrot the statute is because he ice position is that the statute uses the phrase institute it may not be instituted and that institution it will is what covers governs the time of assessing when the petition is timely importantly here the rule does not use or mention institution it refers to when a petitioner may file a petition when the petition requesting the proceeding is filed and refers in no few very quick points on this issue of deference i think the click to call decision has addressed this in his made clear that this regulation want to one b is not entitled to any deference because it merely parrots the statute decisions and turpin the regulation are even less entitle to deference and that's at an f thirty or forty one dollars so the deference question has been answered you don't defer to the patent office number two there was a point made about how on had it's has it's own interests here and it isn't fair they haven't had their day in court that sort of thing that's not in the record before you there in that state can you i just want to get on every much time can you address yourself to a kind of practicality point opposite you don't get out results with the decision maker in this case the board at the time they're deciding to institute looks at all the relevant facts and makes a decision there's no one certainty there's no variability there's no decision made in an arbitrary earlier point in time or at some later point in time and then again at the time of institution you look at all the state of the world that exists at the time of the institution because that's what the statute says there's no wandering around in the wilderness on this  respond to the specific concern counsel raised about well gee what if the conditions of the merger didn't come to fruition the answer to that is it isn't even really very relevant to the privity inquiry the point is they had a merger agreement this is  hundred thirty six page definitive agreement may but that's not the point if there will is to look at the institution in time no one knows you're switching into other should have been pretty even at the time of the petition which is not your primary argument and not mostly what we told isn't the primary argument but we certainly do make the argument and we maintain the argument that even if you look at the time just of the filing of the petition there was proof that here there was it there was a proxy relationship no question between on and fairchild at that time you consider a confidentiality agreement that said they had a common commercial legal interest you had a merger and definitive merger agreement it was a so just getting back to something i just talked about earlier i thought you were we had discussed and you would agree that your position is the trigger point is at the time of institution and you determine everything that and it doesn't matter if there had been a proxy or privy relationship at some point earlier including at the time of filing the petition if all of that relationship had been extinguished and destroyed before the time of institutions in that world it may not matter or may not matter as much if there was privity at an earlier point in time but again that's not our world and what i'm saying is we're about to go again on this round too right