well your argument this morning in case seventeen fifteen ninety four return versus the united states postal service was brinkman mr chief justice i may please the court the term person in this case does not extend to include the government for three reasons first the other branches rely on the dictionary act definition of person and this court's presumptive definition of person to not include the government that is a stable framework that's critical to that communication between the branches second the stoppel that was enacted by congress specifically references the jurisdiction of the district court and their international trade commission not the court of federal claims where the government's patent litigation takes place reinforcing the definition of person not to include the government that was a linchpin to the structure that congress set up it created a new adversarial administrative process and part of that balance was to ensure that patent holders that were subject to that new adversarial process could then be protected from having to go back and relive the gate in court in district court or the international trade lynchpin to the balance it's a reinforcement the dictionary act definition and the presumptive definition of what do the work here because that is the reliance by congress and the give and take before the branches so congress knows how the word person is going to be interpreted when they use it so it the linchpin part of the estoppel though reinforces that because it only refers specifically to the court the district court and their national trade commission and the third point i wanted to make your honor was that this does not exclude the government from going after bad patents to the contrary the government is different has the most powerful tools to do that first the patent and trademark office director has the power to su and can go after patents after they've been issued with the government or two postal service be able to initiate export to me reexamination because under your theory person doesn't include the postal service how do you punish them if they send a letter saying there was this prior art do you want to look at this the statute does not preclude a communications section three o three that allows the sui examination by the government through the p t o it does not preclude someone bringing the matter to the attention of the director in fact that someone is according to you a person is not the government that is the way to go where does the government its permission under the form the government in the form of the postal service where does it get the permission to initiate the process there are two different ways that an ex party reexamination can be initiated by a person or sue is sponsored by the director of the p o and the way congress set up the structure for the government to go after bad patents was through the suit was spontaneous director as far as that's three zero three three zero one where a person can bring it  requested at the same starting point would be here under they presumptive definitions that it likely would be construed in not to include the government the there's a different history to that provision than the three a i a provisions the american advance act that was in the enact in two thousand and eleven the reexamination provision was an act of back in one nine hundred eighty and it is different because it's not an adversarial process at all all that happens is that a person can ask that it be initiated but then it's very different smushed might the original issuance of a patent it's a back and forth with an examiner do you think it would be proper for the postal service or some other statutory language because i think if if this were prevented presented to congress that the issue before congress was do we want the federal agency to be able to initiate one of these a proceedings in the open in accordance with the law or do we want to allow them to pick up the phone to the p t o and say patent and trademark office and say then and be a litigant as they are here there was no stop a provision for example that's why the analysis for the read salmon nation is different what we know here is though as far as the government goes going after bad patents there's two very forceful tools that congress o director who congress has vested with the expertise over patent law is the one that so respond to does that and then the government doesn't need to go after they can use the patent they then the person who holds the pattern the patented ventured has to come over to the court of federal claims and request compensation and that shows how congress created this different structure for the government in fourteen ninety eight before the court of federal claims very different no jury you can't get an opportunities through both the reexamination and through challenging the validity for all of the grounds for ability to be challenged in a court of federal claims but moreover your honor when we go back to the principles of which congress used the word person the question isn't whether or not why they would have excluded the question is there any indication that congress intended to extend this to include the government you're argument on the dictionary act  you know the idea that everybody knows this is what it means and so you start from common ground that really has to be based on a legal fiction right nobody would think when congress wrote this that ok we're using person according to the dictionary except sometimes we're not because you agree there are some times when it does include the government and in those situations we'll just leave it up to the courts to figure out even though we don't say this that here we're not following the dictionary act i don't think it's leaving it up to the court your honor i think it's that congress has to indicate through the context that it means otherwise and it's very it can i know but that's my point is that you rely on the dictionary act but then you say except in the context suggest something else it seems to me that if people were in fact looking to the dictionary act and they wanted to heard from  would have you something a little more clear in the context well certainly your honor there are examples we know that person is not used consistently in the america invents act or in the patent act and that the government really turns that on its head when it says oh well why would you exclude it instead the question is is there anything affirmative to indicate that the government was included and i think when you look at the two aspects that the government invokes oh you know the government gets thrown patents oh and we get to raise this defense about intervening rights both of those have very strong contextual affirmative statements two zero seven makes clear that each federal agency can own a patent obtain a patent and we know from fourteen ninety eight and its predecessor statute that the government can raise all defenses so there is nothing to suggest from that context that there to respond to that or i think a very useful guide here would be to look at the cooper case the cooper case was about whether or not the government could use another tool like here whether they could see trouble damages in a civil damage action under the any trust  there is a very similar definition there to the dictionary act and this court looked to the presumptive meaning of person not to include the government and said we're looking to what congress said here and there was nothing affirmative to include it even though it could be an additional tool i think it's such a good example because that decision was in one nine hundred forty one in one nine hundred fifty five congress an actor provision that gave congress gave  gun that tool to seek civil damages to other things though they didn't do it through redefining the word person they stop another provision gobert it to have the government bring action civil actions and they did not provide for trouble damages it was not till the government free to obtain patents like anyone else agencies etc moreover there are quite a few or several provisions in the patent law where the word person seems to include the  government for example you can't get a patent if it any person you know can't get a patent if there's a prior art or whatever you know their part if you like that or several like that now what are your best one or two examples of the opposite where in fact the patent statute uses the word person and it's pretty clear that person does not include to go but would you not and he crossed examples  on your honor i can give you three examples that we just got in our reply brief that the first one would be section three seventeen it's contemporaneous with the review provisions we're talking about here that has to do with obtaining information from the agency about settlement and it provides that the government can do it just by request but then explains that persons must make more of a showing to get it that is a distinction so that's a clear example this and that's not just three seventeen it's also in three twenty seven and one thirty five having to do with the different review provisions the second one i would refer to as two ninety two there's subsection a and b that has to do with the remedies and false marking it's kind of parallel to the cooper case in fact because a provides for a penalty for the government to obtain b applies for persons to seek damages that does not include the government the third one i would point to was two fifty seven that has to do one with the director was referring a person to the attorney general for fraud and that clearly refers not to the government so if there's one thing we know is that the word person the term person is not use the same throughout the act and that's because congress has the backdrop and knows that it does not include the government unless it makes an affirmative showing to the contrary and i should say in addition to the two we talked about where there is an affirmative showing to have seven federal agencies can own patents so things flow from that and you can the government can raise defenses through fourteen ninety eight there's another provision that very informative it's the provision that was that issue in the florida prepaid case that was held unconstitutional trying to waive the sovereign immunity for states the other part of that provision known to ninety six was who could sue it's a persons could sue including governmental entities so again congress isn't acting in this dialogue between the branches congress and the president when they're acting laws know that if they mean to extend the term person to include the government they have to provide some of the right of the permits the government to sue for infringement to be sued for infringement which it does what do you think it means to take away a defense meaning this is a defense tool for infringers does it make logical sense to deprive the government of the suit being able to do this perceiving a couple things there i'd say your honor the court did not grant third on this and i'm not here to argue but we have a different view we don't believe actions for compensation in forty nine days in a court of federal claims are actions for infringement there for use without authority so but just to put a fine point on that but going back to the tool i would also say that this is not a defense when you raise the defense in litigation you're litigating against your opponent and your defendant to get a judgment that you haven't infringe this is an affirmative action to send federal agencies under the government's view into another federal agencies to expand their power and that power to invalidate patents for all time for everyone the government does have that power it's in the expert patent and trademark office director to reexamination that they can do is  we have to read the word person as the other branches understand it beats and not include the government grant when i take it you agree that it does indicate that the government counts as a person for a variety of provisions is that right so one zero to one eighteen one nineteen all of those provisions because the act specifically says the government can obtain a patent it follows that those provisions apply to the government as well as do you agree with it what the provision it references each federal agency and it was part of the baidoa lacke to try and figure out how that the government could could handle research patents and we do think that because of that provision the provisions that then applied a patent owners would apply to them but many research universities and much of the government get patents through assignments for example so the government is different in many ways that doesn't mean though because in one way congress wanted to allow the government to have this exercise of handling patents that that gives any inference to other aspects this has a i think i guess what i wanted to ask was whether those provisions to a seven a one that the government can obtain a patent to a seventy three which is that the government can protect its rights to inventions whether those might also  lead you to say that the that the government is a person for means of bringing these challenges because the idea i think would be something like these challenges to the p t o are a means of in the able of the government to innovate and to obtain patents itself in other words the government is looking at a near area it says somebody is claiming a patent on this that's preventing us from inventing that's preventing us from getting a patent so we have to kind of clear the field in order to innovate and that's what these challenges enable the government to do so that they are a kind of function of  two seven a one and two zero seven a three what would you think of that argument it might be a policy argument that someone might consider but it's not what congress did there's no evidence the backdrop of which congress enacted it was not perceived way the idea of going against bad patents is something that the government has robust authority to do again through the patent trademark office director through reexamination and that is a much more appropriate avenue for that your honor because that isn't litigation amongst adversaries if you're thinking oh this isn't a good patent for the government the p t o director can look at this and then there's the examiner who goes back and forth and there's more liberal procedures for example and that's where you really weed to is there anything here that you know can be patented so that is amply already covered and has been through the reexamination process what is the director of the p t o supposed to do when he gets one of these calls from the government and says we want you to reexamine this is he or she supposed to make an independent determination or she or she is supposed to salute go ahead and do it u that the director can is not on his own initiative at any time as discovered by him or cited to him it could even rely on art that was cited in the actual requests that someone filed or the regulation provides anything that's been brought to his attention so there's a very broad area because that's only about beginning the process then there are other regulations and statutes there are quire things to be put on the record and explained why there were examinations brought under and i should also say i mean there's nothing to preclude in fact the p tab recently for example had amicus briefs that it's not a barrier to information being provided it's really the authority and how where the government has it is a priority it was for him and i guess the question  struggling with and i think some of my colleagues are as well as one could understand why a rational congress wouldn't want the government to go before its own agency to kill private party patents i can understand that argument  what's less clear to me is why rational congress would allow ex parte review initiated by the government before a governmental agency that kind of situation but not allow a more r adversarial process involving the government as a party so what's the what's the rational line that one could draw between those two arrangements i think i think that's where i'm struggling i would say on the reexamination honor it's much more of a consideration that agencies own reconsideration and it's in a back and forth an interaction as very much the original interaction between the examiner and the patent application is an  patent comes out stronger it's not just to challenge it it's to figure out where this strength is and it can be reissued as a stronger path in fact and that really furthers the interests that are at the crux of the patent system in our country the one thing you have to say that is why not simply say the government can't meaning if you're going to be consistent then why do you need to give a different reading to a person the  i'm not quite sure why you're doing that but and i say my answering let me just tell your honor also i do think that if you're the starting point for the person in the next party reexamination is the same it would not normally be construed to be part of the term person if you're looking for context in any affirmative indications for congress there is a different history and structure from that for the x party reexamined it was from one nine hundred eighty it's not adversarial the only role that person whether it's the government and someone else plays in or x party re exam is to request that read exam there was no discovery there was no briefing there was no adversarial process so it could be different your honor we don't think it need be we think that the power of the government in the authority and the structure that was set up in addition to the reliance on the dialogue between the branches and the use of the term person that really reinforces that this use in the a i a review provisions does not include person their lives one well for would like to go ahead with an invention but is afraid th google owns a patent on it but it thinks google's patent is invalid and so they start procedure which is supposed to be more efficient i don't know if it is but they start it because they want  to be cleared that was no good and then they can go ahead will government agency either directly or because they've hired under contract the same person owns a patent or it seems like it's in the same situation is that small company or medium size company or big company so why would congress not want to allow that agency to use this fairly efficient method to get rid of what they see as an invalid path for the blocks their way now you have one reason which is this court of claims or as i take it the government in the court of claims would know would not be a stopped for what it might have brought though it probably would be restocked board it did bring in accordance bring before this quick procedure now that's one i've got that and that's a point and the reason i'm asking this complicated question is i want to be sure there are no others a couple points i'd like to respond to your honor first of all  on our answer you know that the government can defend in the court of federal claims true but also the government through the expert office of the pattern or trademark office director has the ability to sue a spontaneous salmon a patent just like that and that certainly is something that could be done the second thing i would say but i mean that equally true of joe smith i mean unless the government let's say the f a the government a huge organization of many many different parts darpa who knows i mean any of these agencies can  do that joe smith can't do well if i can just flip for a moment to just explain what they review provisions are because i don't think they're as broad as it would be believe through that kind of scenario first of all the cover business method pattern that's a review here no one can bring this kind of review unless they've already been sued for infringement or charged with them for enjoyment so no one darpa could not go in and bring this review present isn't my question my question is what is the darpa could do or not do the joe smith who has his company could do or not and i've got one of them which is the court of claims where there is a difference where else is there a difference the other difference is that darpa can use it it can't enjoin from using it can just use it patented invention no one else can do that and then the burden is on the patten owner to go into the court of federal claims and seek it and the government different treated very differently no jury knowing deuced infringement no one hance damages no enhanced fees very different structure and that again is a very important  drop for what congress was doing when it used the word person i was trying to figure out the difference between ex parte reexamination and these review procedures from your perspective and i gather that the difference is that the p t o will be the final word within the executive branch if the next party reexamination procedure with the only avenue whereas the postal service could seek judicial review against the office if dissatisfied if the government's position prevailed is that the difference in the two review proceedings well there also are all the litigation that's available if there is an action against the government for using the patented invention and certainly that as i just explained is a very robust process for the government also if i could i'd like to save the remainder of our time my time for rebut stewart mr chief justice and may it please the court this court has said on a variety of occasions that the term person does not ordinarily include governmental bodies but it's also made clear that this is not a hard and fast rule and consistent with the text of the dictionary act the definition of person as not uncovered and it's not including governmental units can vary depending on the context and one way and this is something well short of a clear statement requirement the dictionary act doesn't say if a particular law expressly provides otherwise the term will be given to a different meaning it says unless the context provides indicates otherwise and one way to serve this is a very different situation the cato institute in agree suggests that in a situation in which the government is basically two branches of the government or two agencies of the government are disputing one another or  before one another but that's a special situation that requires a closer look in a more expressed statement it does seem like the deck is stacked against a private citizen who is dragged into these proceedings they've got an executive agency acting as judge with an executive director who can pick the judges who can substitute judges can re examine what those judges say and change the ruling and you've got another government agency being the prosecutor at the same time in those situations shouldn't you have a clear and least two scenarios in which governmental bodies could wind up in p tab proceedings the first is as justice kagan alluded to section two zero seven expressively authorizes each federal agency to seek a patent and the statute doesn't say so in so many words but everybody understands that the same substantive and procedural provisions that govern anyone else's patent application will apply when a federal agency applies applies for a patent so when the federal application is considered by an examiner the examiner applies the same substantive standards and it is trusted to do that is trusted not to give special weight to the representational federal agents that mr stewart there we have the express language of two of seven that does that work and here you're asking us to imply and i think justice sort of my own raises and really important question normally we think of the executive branch is able to resolve its own disputes  d speak with one voice and it is just as kavanagh do to with ex parte community ex parte review you have the final word of the p t o director as the final word of the executive branch on the status of a patent  here the scenario would be that the government speaks out of both sides of its mouth potentially the p t o director resolving a case against say the postal service and coming to court for us to resolve that dispute about the executive department view of the law that's unusual not say unprecedented but unusual and shouldn't we is just as suggested at least expect some sort of clarity from congress when it wants that unusual arrangement to rein let me say two things the first of which is a continuation of what i was saying to justice sotomayor that clearly congress did contemplate that there would be situations in which a federal agency could come before the pee test because in the initial examination context if you get to my question it's just a week a knowledging to a set and nobody's here disputing that the executive can come before the p t but before the p t o to to secure a patent and it is in the language of tools seven exactly and the statute doesn't say in so many words if a federal agency as patent applicant is dissatisfied with the examiners decision it can appeal to the p t a ob and potentially appeal to the federal circuit but everybody understands that those approved provisions apply equally to federal agencies but the second thing i would say is although there is a theoretical possibility that a federal agency could file such a suit on ballots on net i think our position is very likely to reduce the incidence of executive branch agencies disagreeing in court because what you have in fourteen ninety eight is a provision for the united states to be sued for an authorized use of the patented invention and one of the defenses we can raise is that the patent was invalid and it's very clear that congress intended for all of the defenses including that one to be available to the united states now that wouldn't have involved the spectacle of the p t o actually participating as as a party in the fourteen ninety eight proceeding because usually the p t o wouldn't be in the infringement suit but it would be a case of the postal service asking the court to rule that the p t o was mistaken in issuing the patent and by that's were it's the difference of the justice course which is a done a fine you have agency versus agency in federal court and again not unprecedented but unusual and why should we go down that road when there's ex parte reexamination process available and why should we think that congress wanted us to go down that road when they didn't  the postal service was able to avoid the situation in which the court of federal claims would be asked to rule on the postal services assertion that a p t o patent was invalid the matter was affective resolved within the executive branch in the sense that the postal service initiated the ask that review be instituted the director agreed at the conclusion of those proceedings that peter had concluded that the patent was invalid at that point returned mail with stuart i hate interrupt you but i'd really like an answer to that is the same question i asked in justice cavanaugh asked and perhaps you could get to it my answer is it is theoretically possible that there could be an appeal from by a federal agency from a p tab decision that was unfavorable to the government it hasn't happened yet presumably in deciding whether such an appeal would be taken the government and specifically with knowledge that's unusual i believe that it's unusual but as  acknowledge also i think that x party reexamination is a process available to the postal service in this instance to ask the p t o to engage in i don't see how it would be under petitioners theory that is petitioner says that the presumptively excludes all can't get the starting iraq can't the executive branch agencies always communicate with one another in general that happens but as justice alito as question what was indicating previously it would be would be quite problematic for that to occur in this context why is that and under article two i would think all components of the executive branch always are able to communicate with one another absent some rule to the contrary the congress might try to insert will for example section three zero one says that any person can bring to the p t o s attention in for prior art that potentially bearers on the validity of an issued patent but it also says that if that person explains in writing its reasons for thinking that the new prior art is relevant that material shall be included in the file and section three o two says that a person may request x party reexamination but that any such request will be communicated to the patent holder and so it would be peculiar to say that an executive branch agency could short circuit those mechanisms that are designed to make the process transparent make it a part of the official record simply by an end run it would also be peculiar to the kind of make up a regime in which one federal official a federal official from one agency will call a counterpart at the p t o and say don't treat this as a request for x party  reexamination but put it in the file deal with it in the same ways that congress intended requests for x party reexamination to be made at the other the point i was trying to make about the the two points i was trying to make about the potential for an appeal  first we know from the statute that congress didn't intend to rule that out because if the p t if a federal agency loses its appeal at the p t have when it's trying to get a patent initially the statute provides in a disappointed patent applicant with a ri appeal to the federal circuit and we'd have to decide whether it was appropriate to pursue such an appeal second it's entirely clear from the statute that federal agencies can own patents and those patents are potentially subject to other parties requests for inter party as review or c b m review so with return mail felt that the postal service had a patent that was invalid it could have requested in our party's review or c p m review if that had sorry if the p t had had instituted review and had ruled against the the postal service the postal service as a party to the proceedings would have had a statutory right to appeal again we would have to decide as a matter of an executive branch governance whether it was appropriate i think is he going i think mr stewart i'm i'm not really understanding your affirmative argument here i mean let's assume that you have a presumption running against you and we can argue about how strong the presumption is but there's at least some presumption coming from the dictionary at coming from just our cases on this topic which says that the government isn't a person unless we see evidence that it is a person so what would you point to tell us that the government is a person and you know what taxed are we talking about i would say that the strongest contextual evidence is that the word person in the provisions that define i p r and c b m review is used to make available to the general public a procedural mechanism an advantage it's made available on a widespread basis a second all of the reasons for making that matter that doesn't seem i mean that just  everybody else gets to do this which is what i would which is basically what the court said in georgia versus evans and isn't that flipping the presumption i mean the presumption is that person doesn't include the government near suggesting well because person is broad and it's a big term includes the government if i think there are there are at least two or three different repeal requisites to my theory about the context the first is that it is making available a benefit as opposed to imposing a disadvantage and that goes all the way back to dollar savings by in the nineteenth century the second is that the benefit is broadly available and in this that sense this case for instance is distinguishable from primate protection leak where in primate protection league the agency was arguing that it was a person acting under an officer of the united states and if that argument had prevailed the agency would have gotten a benefit that no private party has made its what's the third the third is that there is no evident reason that that congress would have wanted to exclude federal agencies because the rationales for creating these mechanisms in the first place apply equally when the federal agency says that i mean when i hear you say this mr stewart i guess what i was hoping for was that you would have an argument from particular statutory provisions i mean i was trying to run an argument to ms brinkman about to ascend on a one in a three and how those might suggest that the government was a person but about i don't hear you saying anything like that i hear you just saying look this is a broad provision and we can't think of a reason why the government shouldn't be treated like everybody else so the government should be treated like every let me make one very quick general observation and then i'll try to go to something more specific in the statute the very general observation is that the argument i was flushing out was basically what the court said in georgia versus evans and in pfizer it said yes the word person would not ordinarily include a state or a foreign government but we can't see any reason why congress would have wanted these units almost alone among potential plaintiffs not to be able to sue under the any trust laws but took to be more specific section fourteen ninety eight authorizes suits against the united states for unauthorized use of patented invention and it has been the previous version of the statute expressly said that the united states had all available all defenses available to a private party that language was deleted as unnecessary in congress didn't do that or congress reenacted the statute isn't there some kind of basic statutory canon interpretation canon of interpretation says where the reason for the rule applause the rule applies and here we have the government nasa which might in fact want to do something and they're being sued for infringing a patent now we have a speedy way of resolving that what reason would there be for not applying it and now we have two one is the court of claims different which is undoubtedly a different and the other is well i'm not sure ok but i'm going to go back and look at all those visions that were cited to me ok that's i would have thought the statutory argument in my right i think that's correct and i think to take it to fourteen ninety eight specifically because that is the provision that subjects dorothy ninety eight by the way is when i think they invented this canon of interpretation fourteen ninety eight is the provision of the title twenty eight that subjects the united states to liability for unauthorized use of a patented invention and it's established that the united states can invoke all of a global defenses now one of the defenses that we might want to invoke is that the patent is invalid this court has held that the invalidity of a patent has to be proved by clear and convincing evidence that that was not in a case involving the federal government and the court was not the standard of proof necessary to show in validity has been understood to carry over to section fourteen ninety eight suits even though there's nothing in fourteen ninety eight that says that in so many words because except to the extent that congress specifies otherwise these suits  conducted in basically the same way as ordinary infringement suit one of the prime reasons that people who invoke i p r or c b s do it is to is because they have actually been sued or expect to be sued for infringement and would prefer not to have to overcome the hurdle of proving in validity by clear and convincing evidence and if they can get before the p t o they will have a didn't do don't vote standard review they'll be before the expert agency they perceive that their chances of establishing invalidity will be great or it's not and that is particularly integral to the c b m review scheme which is miss brinkman was pointing out is limited by statute to people who have been sued for or charged with in french but it is odd for me i'm sorry like this chide and charged with is it basically means you received a cease and desist letter you have been informed by the owner that it believes you to be infringing the patent even though you haven't yet been sued the p t o has promulgated a regulation that says in order to establish that you've been charged with infringement you have to demonstrate that the likelihood of an infringement suit against you is sufficiently real and immediate that you would satisfy the standards of a declaratory judgment it's a bad thing and the pain that the  successive i p r requests or c b s requests in that category of a stop a would apply to us in full force it's true that the estoppel provision doesn't govern proceedings in the court of federal claims we would still be subject to common law stoppel that the primary difference between the two is that for i p r purposes statutory asop encompasses arguments that could have been made but weren't where as common law stop will accomplish as only arguments that were actually made the issue that's before us i'm not sure a petition has a pretty good it has much of an explanation as to why it would treat why congress would have wanted to treat the government differently from a private these proceedings but on the other side do you have an explanation why congress would have wanted different estoppel rules to apply to the government i mean obviously the government in a variety of contexts is subject to different not only equitable stoppel but also regular issue preclusion the whereas now mutual collateral estoppel could apply to most parties the federal government is not subject to no a mutual collateral estoppel so it could be that congress thought it through and thought common law stop was good enough i take the point of your question to be it may well be the case that congress didn't think about this one way or the other and what should we do then and indeed the court in pfizer said it is apparent that congress didn't consider the question of whether a foreign government should be able to sue under the any trust laws so it didn't rest its decision on it in the affirmative evidence that congress considered that question and affirmatively wanted foreign governments to be  counsel in favor of the presumption shouldn't make the government think about this issue it could very easily decide that we were wrong if we were did society in your adversary's favorites pathetically but it would then be in a position to decide what kind of the stoppel should be applicable or not in the court of federal cleans but if it hasn't assuming justice  process wouldn't we be trumping the assumption by making a policy judgment to include the government because it makes sense to some of us again i don't think you would be making your own policy judgment and indeed in pfizer the same presumption was a to shoot the same ordinary rule that the term person doesn't include foreign government doesn't include governmental bodies and the court acknowledged that that principle was implicated by its decision but it it found the fact that everybody else or practically everybody else could sue and that nobody could think of a good reason that foreign government should be excluded to be a sufficient basis for rejecting the ordinary rule there is a purported good reason here there's a different to stop all that applies to the government and that might be ok with congress but we're not sure of that i think that is that has been identified as a disadvantage of our proposed rule but nobody thinks that that's the chain of thinking that congress went through that it was congress in deciding whether the if congress were thinking about whether the government should be included in these provisions presumably it would first decide do we want the government to be able to invoke i p r and before the government as judge civil prosecutor and judge in these proceedings and then not be bound by its own findings brought in a case by its own prosecutor effectively later in the court of claims proceeding so i understand them as often not bound by a step a but it's usually in the rule of the defendant in those circumstances and certainly not before its own tribunals is a little unseemly to say that the executive branch as i say i don't think it would be unusual for congress to decide there will be somewhat different a stop the rules with respect to the government with then with respect to private parties again people were alluding in earlier parts of the argument to the possible anomaly of the government appealing from an adverse p tab decision and the court in united states versus been dozer said one of the reasons that the government is sometimes subject to different to stoppel rules than private parties is that the government's appeal calculus is different and so to the extent that we might deem it inappropriate or might be reluctant to pursue an appeal from an adverse p tabb decision congress could say well they should still be bound by what the actually decided with respect to the claims of the arguments they actually made but not with respect to additional claims they would have made when you take a step back here and think about this case there are provisions that specifically give the government the same rights as persons to zero seven and other provisions in this statute we don't have them here obviously that's what raises the question so it's just a sort of my where says we have the presumption that the government is not a person and then we look at the context and you said the context supports you but there are contextual points that seem to cut the other way and just to summarize them you still have ex parte reexamination available so it's not as if congress would have thought the government's cut out entirely if your position wins you have the anomaly which can be overcome but it is an anomaly of government against government lawsuits in federal court and third even though you're trying to make the best of it the astop all would be very different and not part of the bargain that seems to have been part of what congress put in place here in terms of the system so those are all contextual points that actually cut against you it seems to me where your burden because we start from the baseline of the government's not a as you need the context to strongly support you so that's just a kind of stepping back summary of things i see as problems you can respond to them as you see fit and let me make a couple of additional contextual points one of which is a continuation of an answer i was giving t justice kagan and then another is a new one the what i was saying to justice kagan is everybody except except that the government in litigation bears the same burden of showing patent invalidity by clear and convincing evidence now private parties have available to them an alternative i p r c b m proceedings to try to escape that burden to try to come before a different decision maker who will apply it to novo standard of review you could think of it as roughly analogous to a primary jurisdiction mechanism where one issue in the lawsuit is referred to an agency that has expertise in the relevant area and the court in applying various presumptions and clear statements rules clear statement rules has been especially solicitous of the government as defendant that is resolving in the government's favor ambiguity is about whether the government can be sued what is the scope of its liability etc this is not quite that but petitioner is still arguing that the government should be denied access to a procedural mechanism in its capacity as defendant that is available to all private parties if somebody argued that the laws allowed any other defendant to show patent invalidity by a preponderance of the evidence but allowed but required a federal agency as a defendant to prove it by clear and convincing evidence i think the courts reaction would be it's conceivable what we would need pretty clear language that congress intended that result this is not quite that but the petitioners argument is still we don't get access to a mechanism for a more favorable burden of proof the second thing i would say is we've been looking at  the case up to this point from the perspective of the postal service and in part congress created the i p r and c b m mechanisms with the interests of private parties in mind the interest in mind of people who might be sued for infringement and would want an avenue for seeking invalidation of the patent but congress also wanted to assist the p t o in doing its job and one impetus for the a i a was the belief that x party reexamination simply hadn't been affected at effective i'm sorry that not enough people had invoked it and that because the people who invoked it didn't have a right to participate in the proceedings the p t o wasn't getting enough information to do its job of not just issu ing good patents in the first instance but weeding out patents that were both bad and of commercial and i asked mr stewart just a couple of factual questions this case is about the post office but let's say it wasn't the post office let's say it was just a regular  branch agency who would it be that would be making the decision whether to seek a proceeding like this i mean is there a patent officer in every agency whose is whose job it would be to decide when this was appropriate i  don't know the answer that i know we have a unit in the civil division that will sometimes defend the government in c f c litigation but also at least on some occasions will be representing the interests of the federal agency in of p tab proceedings and i guess what i'm trying to figure out is to the extent that you think that maybe congress treated the government differently here because they were afraid that the government in front of the p t this is has a kind of from court advantage and that they didn't want that i guess the question is is that true i mean is this a community of patent officials who talk to each other all the time across the government who know each other who deal with each other or is this really still hyped so that none of these people  the would have no clue of who it was before them when the department of h h s walks in and i mean i have been to the federal circuit bench and bar conference and there there is a community thought of as the patent bar and so there probably is some form of a professional acquaintance between the various types of governmental many members but i think the one thing i would stress most is it in other respects congress evidently didn't see that as a problem because  authorizing federal agencies to apply for patents it didn't create a special patent examination process or even a special administrative appeal process it so that the government would come before people who were unusually impervious to do that sort of in a rate overreaching and similarly congress made federal owned patents susceptible to potential i p r and c b m request by a private parties and it didn't create in the spec and special mechanism out of concern that the government would have a home court advantage in those areas and so i think that the overriding theme of the legislation is you have the authorization in section two hundred seven to apply for a patent and he understands that all the statutory provisions that flush out the details of how that system will be administered will be done the same way with respect to government allowed with if you were if you were not to prevail here what would the real world problems be for the government you know i'm told by the p t o that in the year since the a i a a was in acted federal agencies have submitted twenty requests for all forms of the post issuance review combined i mean if you look at it from the standpoint of the government overall litigation effort across all subject matters it's pretty small but if you ask would the court naturally you're more likely construe a statute to say the government has to  higher burden of proof than a private party it seems unlikely even if it's a miracle of shoot thank you thank you mr stewart three minutes ms brinkman thank you your honor i have four points i'd like to make very quickly the first one i just want to clarify thing about trying to short circuit the re exam process actually under three zero one there is a provision that says when a person requests a reexamination it can actually be confidential so this idea that somehow there's going to be a secret person asking at the statute already says that doesn't have to be disclosed i think that's three zero one the s guy would point about just the anomaly of the agency vs agency whatever anyone thinks of that would be extraordinary for congress to do that to silence and to go to this question about who would represent the government i do know that in the civil division there are courses and office that handles the patent litigation in fact that is the office the appellate division that handles amicus briefs for the p t o before the federal circuit so there is significant interaction i mean i'm not suggesting that that no one would follow their roles and you know the law and all but just to answer your question justice kagan the other thing i would point out is that the idea of why it would be the reexamination instead of this process the p t o is the patt expert for the government that are there other people in the government know about patents sure but when the congress is thinking and acting against these backdrop principles and thinking while the p t o is the expert that would handle this the last point i would just make is about this court's longstanding presumptive definition it's the traditional legal definition of person not to include the government and in our reply brief we have four examples of over a century where this court has held that there were benefits that the government wanted could have gone but no that was not what the word person meant and they were sometimes when the government was the defendant for example in the international primate case and i wanted to be able to remove a case and the court said no in cooper we already spoke about that the government wanted trouble civil damages that all and trouble no i'm davis there's this pringle was a case where the government won a priority in a bankruptcy for its claims and presumptive definition of person excluded it and then it dates all the way back to the fox case that involved a state a new york law but that was through traditional legal presumption that person who could inherit and own land did not include the government so we submit to your not presumption make any sense anymore misprint when i mean the idea of a presumption like this is that it's a stable default rule against which congress can operate but does anybody really think this perhaps goes back to justice alito is question does anybody really think that congress thinks about this is that the full rule and legislates against it and if not shouldn't we just do what strikes us as the thing congress would have wanted done with respect to any particular statute your honor we think there's a very good reason for using person knowing that it doesn't include the government fine when congress and the president and act laws that involve the government a lot of other things come into play sovereign immunity all kinds of other things so yes it makes all kinds of sense because you just don't want to have these scenarios all the same while the government in there now how does that play out rather they're not included that is the presumption it and they are intended to be included they can be  d and congress can change this that they want that's what they did in cooper and indeed did it in a different way and provided not trouble damages initially but a different remedy for the government thank you your honor thank you counsel cases submitted