you please speak to the question of review ability cards yes this court has dreaded and i'm trying to understand what would be your theory of review ability is that any decision that the patent board ever renders that can be said to be not attached to the institution decision all that entire class of board decisions are never existed and it put the parties back to where they were would have been there's no i p r ever been filed with that person well it's adverse in the sense that they have they had institution they're putting the burden of proving up their claims and proving up the petition and then they never received a ruling on claims forty and forty one which are being asserted against them elsewhere and there isn't a requirement of having some other cloud of consequence and typical with agency action where you you're before an agency the agency is determining it and your your petition your request is denied which is precisely what happened here and this is unlike the institution decision and it's and doesn't even touch upon upon that it's not a going back and revisiting institution this is the proceeding happened to the board determined on separate grounds and in footnote three and appendix ten even acknowledges that it's making its determination on grounds separate and apart from whether or not it's too so this isn't a situation where the board is going back and reevaluating it this is a situation in which the board carried the proceeding forward the parties carried the proceeding forward and then on the very you're looking at the legal bases for that the finding of the stoppel so if there if there were a challenge to that legal bases it seems that legal bases and or the reasoning of cause and and thrive is not closely related to institution whether or not there is a stop will not clear in the credit acceptance case where the court concluded that it's not uniquely related to institution in that hypothetical it might be part of it but it is a legal determination separate apart so that legal determination may be reviewable even if the institution decision is not what is the same credit except of institution decisions that that was what the court that and credit exceptions and that applies equally here it is not uniquely part of now as they have been they will point out maybe factors into of a certain point and  and may arise at various stages throughout the proceeding but that's something separate and apart it is not a uniquely institution driven issue like say the timing requirements of three  which the court addressed and thrive which only apply at institutional stoppel can apply to a variety of different stages and so depending on when that is and how it's wrapped up it may be reviewable here it's clearly the case that you have at the end and it ended the marks the end terminations of a proceeding that carried on for nearly a year and so by virtue of the fact that the p t o took up the petition instituted the case carried it through had the parties good and then use it as a basis to terminate the proceeding without giving as hynix a ruling on the merits at least as to claims forty and forty one and i don't want to eat up all your time why don't you go ahead and go back to what  the different procedure requirements and what is necessary under the board's regulations i don't know that the person is entitled to a unique set of weight other than a good collection of the material for the court to consider  well when they were instituted the board had already considered the two and set them on a similar i'm talking about all of them so that you wouldn't have been exposed to the possibility of what actually happened here the st set of  the counties referenced the other petitions and and the board is clearly aware of them in terms of rights but it is the board's obligation to organize and coordinated everything so that it benefits problems like what happens here won't happen for you by making a motion to consolidate well after hundreds did make it clear that there was another petition out there whether or not there was a request for consolidation that doesn't eliminate the positive stoppel because that's entirely up to the board whether or not it's going to consolidate and here it essentially did what i'm just wondering why didn't why didn't hynix filed the motion to consolidate was there a reason to not do it i'm not of i'm not aware of a particular reason not to do it as counties did make that notation to the board that they were related the board understood the related and in fact scheduled arguments for the same day and put them on a similar path in terms of timing so it's unclear that there was a formal request necessary in that circumstance in order to accomplish a similar thing which is to put them on a similar pa proceeded with the i p r is that your argument you're making that argument well we are making the argument that the the board's reasoning for declining to do so them to go ahead and issue the final written decision which was due the next day on our harbor petition our hubbert based grounds so we asked them to issue the decision even if s k hynix were stopped we asked them with banning them from being able to persist with that so i knew in that sense it's not like we can pretend gonna make believe world like this never happened something actually did happen to that means is that the agency theoretically incorrectly terminated and precluded and scare onyx from moving forward with this i mean yes but that's true of any time that the board makes a in the institution context makes a decision and terminates and they that party then cannot have that i p r there's no right to an inner party's review even after it's instituted the statute says if it's instituted and not dismissed and the board has the discretion for how to run these procedures for even independently of the  stoppel statute and so the board has issued regulations on how that govern in a party's review and one of those is being able to terminate a procedure where appropriate here the appropriate the board thought it was appropriate after applying a stop all but that's not what about what about sas institute where the supreme court well the position or as a particular right and the manner and how p r proceed and and and the courts get to review and you can see choices in regulating how those things proceed after they are instituted there was a final written decision and it was how the board proceed to that final written decision here there's no final written decision it is the board terminating a proceeding but it's not how this terminations doesn't affect how the proceeding occurred up and to the fact that there was another stop all there is nothing about the scope of the statute regulating what has to happen in a final written decision that's being reviewed here this is just determination decision unlike credit acceptance where the board this court reviewed the estoppel statute it was where the board found that there was no a softball went on to a final written decision and in that case the court found that it could review the board's application of a stop all so if this is just a different context and how the the board is proceeding it's not that there was anything wrong with the particular procedure and how they were going to decision and that's different than your honors yes please please finish your answer well so i was going to jump to judge chen your hypothetical about whether for an institution decision if the estoppel had arisen before institution and that's really this court's kingston case where it's about whether a petitioner can request an inner party through view after they've already had a final written decision on the on the same claims and they are the court it was non presidential to say that that decision is an instance of closely related to the institution decision and it's final and not appeal and did not review the application of a stoppel this is obviously  different this is like credit acceptance where the court relied on the fact that it was to maintain the proceeding rather than the request the proceedings so it was after rising facts but in that case again there was a final written decision and this i think would be the st case where the effects on the patent owner for their continuing applications which is a different scenario here where the claims have there been no determination in this decision about the merits of the patent ability of the nine o seven claims so it's not at least two things which i think seem to rely on which i think are incorrect one is there analysis that if they could have filed the same day and if they had filed at the same day respond to me i'd appreciate it so let's start with the statements about the same day petitions i think clearly the bork was wrong they they cited progressive and they were assuming incorrectly that same day petitions would result in same day decisions and the progress of this court said there is discretion when decisions result on the same day filed concurrently i think the thing is i'm not sure how this is an a p a violation because it seems like the it's still part of the board's statutory construction of three hundred and fifteen a one saying that the board doesn't have the discretion to apply a side paul if there isn't they say same day petitions but incorrectly meaning same day decisions they don't have the discretion to construe the statute to allow to avoid the stoppel just solely based on when the petitions are filed so it's really a harmless error when with the board says same data titi here's my take on it so you can respond which is it did make a difference how do you know that the board when it said that and you believe the lied on that on the board and i'm thinking look these guys had a chance they could have appropriate to exercise that discretion in this case to pursue the i think the board was only making those statements as part of its statutory construction it's not part of its determination on determine on terminating the proceeding it's wrapped up in and how it's responding to s k hynix statutory construction arguments and the board also says again this is i mean this is in the background but it also says that they didn't take they didn't seek consolidation or coordination which would have been another way for petitions filed the same day or not to be coordinated so that they wouldn't trigger a final written decision so i think the board was cognizant of that there's other ways that s k hynix could have avoided this not just by filing them on the same day between the two of them right because they could ask for consolidation but the board has complete autonomy to refuse to consolidate whereas the board was under the view that if they had just piled on the same day they could have avoided this whole mess of the duffel you know the kind of two different things right by the board except as to claims forty and forty one so i earlier on in the decision the board does erroneous lee say that they got all the relief they requested but in their terminations decision they recognize that s k hynix did not get the relief they requested on claims forty and forty one however the board still thought a just result had been breached and that the considering the official c of the office and the other considerations and terminations that it was going to terminate i don't think the board to answers i think they explicitly say in the terminations section that they recognize that forty four and forty one were not found not on they recognize well except the statement i read to you re sentence the board says both these requests have been granted by the board except as to claim forty and forty one there is an earlier statement i agree there is an earlier statement in the background part of the  relief for sixty three dollars out of the sixty faith five claims and i think that there was no discretion of the board to go on just to claim forty dollars forty one cents without deciding the rest of the claims because sas requires the board to write a final written decision as to all claims challenge by the petitioner so they didn't have the discretion just to give them the relief on the remaining claims forty and forty one and if there are no other questions or i don't know the op on that because that's an interesting point i don't think i've seen it come i think there would have been a way if they had consolidated all of these proceedings and so they had all of them for one final written decision because the board then would have been able to say we've given you we've looked we've already found these claims on patentable on the ellsbury grounds and so we don't have to go on and find sixty three of the sixty three claims again unpatentable on helberg grounds then they could have gone the only two claims we have left are forty dollars forty one cents and we could go ahead and decide those on the health care grounds but that's only if they' consolidated all the petitions into a single final written decision i think under sas with the help of i p r proceedings they would have had to go forward and decide all the grounds ok thank you colleagues and for the question twelve and the statement with regard to claims forty and forty one the statement that the board recognized except as to forty and forty one cannot cure the problem there because right after that the board  at the queen's forty and forty one why would you call out claims forty and forty one in that sentence unless you were acknowledging that those claims have not been cancelled and that when you go on and say that the sentence reads in terms of even though it's referring back to the claims forty and forty one i thought you know your blue brief page fifty seven you say quote as the board itself acknowledged s k hynix has not think is most reasonable understanding of that sent recognition but the board seems to be again it's it's it's muddled in that whole discussion seems to be suggesting that there's it's harmless with regard to as counting speak as you know even though it didn't happen and i was very  likely you've you've already been successful you've got a ninety seven percent success rate here so you know that question is for us is the board are we going to go their decision which would have left you with no we leased whatsoever on the prior art right correct ok well we can i'm going to extend the time a little because i just have a question well i don't i don't know of a requirement that would that would force them to take that step especially when they're dealing with a unique situation and what about section three hundred and eighteen a the words of the statute itself  show issue a final written decision with respect to the patentability of any patent claim challenge by the petition right and the petition as we all know from sas institute is the driving force as to what the playing field is going to be for the entire proceeding and the petition that was granted  when you combine them together have specific articulated challenges as to all sixty five dollars that's correct and and that and that does make sense and that fits and also with the what the board typically considers in these types of situations which is the public interest in having these things determined and decided which is a consideration they just did not make and completely ignored from its other cases mr morris let me ask you just one final question on this and that is let's assume hypothetically that the board didn't make the misstatement about how if they had filed on the same day it could have avoided and let's assume the board didn't kind of make this mumbojumbo thing about whether or not you've got all your relief or didn't get all you know in other words that the board rested virtually entirely as far as we know the efficiency this is a big deal this is a lot of time them this is a lot of work we've only got a month left we've already decided that we're deciding are just a question on behalf of the office to not proceed on these sixty five dollars claims again and issue a written decision