court in this case invalidated two encyclopedia brittanica his patent on grounds that had nothing to do with the merits of the claimed inventions or the scope of the claims but instead had to do with supposedly  regularities far back in the chain of priority during prosecution if that dramatic result is to stand but it can only be because it is unambiguous lead commanded by the statu or else necessary to support the purpose underlying the statute and neither of those conditions is satisfied in this case the text and the structure of the golden statue thirty five u s c section one twenty as it existed correct under the post nine hundred ninety nine statute it would be too late to claim the benefit for this application that had been abandoned and under those circumstances the disposition would be correct  that contrary to the position taken by the opposite side even under the existing statute there is a window of time in which an application is entitled to a priority date even though that date has not yet been claim there is a three month window under the existing regulations during which time one can amend the claim to or any application to include a specific reference mandated under the statute cause before we get into more detail on one twenty here it seems that pertaining never actually paid the fine and themes were sent the oath for the application and all so why should it be entitled to any filing date improperly be in the chain when it wasn't ever ready to point a proper application because they didn't comply with the rules well it was an application within the meaning of section one twenty pay much later but claim priority all the way back because they say these were in fact applications under one twenty that that seems like a bit of a perverse result well there are two responses to that just where the statute allocated the money that was paid the money was paid for by the replication no you're on the money was paid in connection with this application the second application you are confined to two places in the joint appendix it was one hundred thirty dollars feed which is evidence the petition so it was so supposed that i find that that's not correct that those fees were not related to work qualify as a filing fee for this application how do you feel about the princip did which is suppose that no fee was ever paid and there's no dispute over that should that reserve a place under one twenty and should future applications be allowed to claim priority back when there's no dispute that if and there's nothing in the statute i didn't want to log more than one twenty that requires the filing fee or other fee to be paid in order for the statutory purpose to be served or requiring the text of the statute however in this case if we to claim the benefit of an early education it suffices to pay the retention processing and retention fee which is one hundred thirty dollars which we believe was paid to this case but in any event it was in addition to the actual money that was submitted the old or declaration again it is something that can be supplied afterwards once the record the record reflects that they both are declaration was applied in the course of prosecuting the third application and  jan so there was a and again the statute doesn't require that there be an oath in order for there to be an application the regulations were quiet during the vote in order to grant a filing date was contrary to the statu well we know that there were fourteen inventors and i don't know some of this information is in the public record from the subsequent p t o proceedings and i don't know how much of it is in the record here but there were fourteen inventors and one of them died at about the time that this application is being prosecuted the attorney reports that he perceived a need for extra time in order for the test to see to be sorted out and to locate the other inventors he were fired or signatures or declarations were supplied in the course of prosecuting the third allocation and then the p t o continued to treat the third out occasion and the subsequent applications all as if they claimed clarity properly back to the first application so there was no reason to think for anyone involved in the prosecution to think that there was a problem with the chain of priority during the nineteen years that the third application was being prosecuted during subsequent years of the fourth and fifth applications are being prosecuted nobody inside the patent office or counsel i did it was misled about  he claimed priority date for this invention until during the litigation the accused infringers you know identified what they perceived to be a regular already in the in the claim you are or do you think this is just a technicality we think that i hesitate to use the word technicality i would say that this is a perceived irregularity i would want to call it technicality in prosecution because there is no why we ought not to have a trial on the merits of these patterns and the last to stand again lest the statute or the policy survive the statute has a compelling reason any ambiguity should be resolved in favor of or do you see no value in having  applications refer back prior to the well that the cases that have talked about section want to tell me i'm not asking about me says i'm asking from a policy standpoint don't you see value in that or the policy policies or about the statute as explained in the cases that have talked about it is that the public should be put on notice of the every day being claimed for invention and you should be able to tell by looking at the face of a patent  applications like the second application in this case were kept confidential inside the patent office they were not published in one thousand nine hundred ninety minutes or part of the packages of amendments to the patent act that were designed to take into account the fact that going  document is supported after ninety ninety nine by requiring want to claim the benefit of both already applications published in one nine hundred ninety three there was no corresponding need to publish the two to claim to the benefit because there was no risk of misleading people because the applications were going to be published and therefore the change in status statute reflects a change in the need for disclosure that we have members or beer will three minutes in her bottle argument that because the statute was changed slightly in one thousand nine hundred nine that entitle had to have a completely different meaning for ninety nine did after and that is clearly not supported by anything in the record in fact clear legislative history before and after one thousand nine hundred shows that congress is intent was to require that section one twenty be met in order for an application to be entitled to claim priority to the earlier application or that that point is wai or before the patenting of the first and everyone agrees that the second application was filed a positive or whatever was when exactly the same day that six seven one patent issued under the about the fact that the deadline is arbitrary and the courts have no ability to change or they have no ability to grow a little bit of the way and so if you don't mean you're fighting a requirement before it could be substantive rights thirty first before seven thirty first means december thirtieth or before well but but you're putting an awful lot on the word before and its interpretation is completely unrelated statute supposing the patent act and stood before december thirty first and later on it said except your oath which could be filed later then well then clearly before doesn't mean everything right and this would mean i think his response of argument to you is the things that you are hanging your hat on are things that the statute otherwise suggested to the statute so if the statute doesn't require paying a fee in order for there to be an application for purposes of want to learn one twenty and the patent office doesn't have the authorization to required or in any event as i said there were at least two actual checks paid the way it doesn't say something has to happen before a date it says something has to happen before the issuance of the past we don't know when the patent issues this is a reasonable regulatory resolution issue if i can get one sentence in on the first one mr s actually in breach of my interruption let me ask you one other question on the earlier point do you understand the