particular ways st it tells us what issues are to be considered at the institution but importantly the statute limits the time for the institution phase section three hundred and fourteen b clearly limits the institution phase once the institution phase is complete that we are to move on that is in the rear view mirror if you will and we need to proceed with the thorough going process and reach a final determination about the and that's exactly what happened in this case the board made a decision about institution considered all of the arguments and evidence presented by the parties with respect to the institution issues and decided to institute the  the parties that engaged in the process that late justice ginsburg describes in the frauds opinion where evidence was a dues and resources were expended in the agency committed significant time and effort to resolution of the patent validity and then just days before the final written decision was to emerge we are told that the agency is now reconsidering its institutions decision and reversing it the ills that come from this  process proceeds if the board were to decide that a patent solidity should be upheld it could avoid a final written decision and simply reconsider its institutions decision obviously that is not the kind of result right they would your honor that's that's an excellent point however again the resource commitment that congress talked about in the i feel our process would be way to justice ginsburg's opinion does a really good had yet to confront so it is true that there are decisions such as the medtronic decision where the board was about permitted the board did go back and reconsider its institutions decision and we see that in several cases however and none of those did the appellant confront or really present to the court this issue about the finality of the institution phase and the idea that when congress korda this is just sharon i guess you're saying that even if during the pendency of and i p r proceedings the patent board were to discover that the petitioner and lied about something in the contents of its petition and the board had been lied on that fraud that lie in the petition the board would have no power discretion authority to revisit the thank you and i think the answer is yes that in fact the supreme court tells us that despite whatever ills occurred in the institution phase that that is behind us and we are to proceed to a final written decision if the runaway train to the final written decision i think that's why i think that you know i can imagine that the board may find different ways to deal with that situation but what they can't do is to point back to the institution and simply undo what was done and in this case that it actually has several profound effects has waived its its oral argument here but the the join us was undermined by the board because they said that well essentially this never should have been instituted in the st place and even though the jointer statute tells us that we are not to consider time barred issues we were going to undo the interest joined or simply because we're going to get into a time machine and go back and undo the the institution decision because there's really no support for that anywhere there's no support in the case of all there's no support  statute and yet that's exactly what was done what's your best quotable quote from the thrive decision that you think we should focus on and should inform us that  there is no looking back after the institution decision is made and even if the institution decision was premised on a completely incorrect understanding of the facts as they exist at that time or a complete misunderstanding of the law of the board nevertheless it is without authority to revisit that and have to go all the way to final judgment regardless i would point to the thirteen b determination and she says allowing thirteen the appeals would tug against that objective the objective being congress's intent to weed out bad patents and she specifically talks about wasting the resources spent resolving the ability and leaving that patents on in forcible and she specifically says a successful thirteen b appeal would terminate and fake a tour of the agency's decision in lieu of enabling judicial review of patentability so she she clearly is focused on the idea that once we've made the decision to institute we are in the thorough going process and when these we need to see that through she tweeted as a as a gating issue and once once that gating issue is surpassed that we are we are to proceed all the way through or withdraw is our power to ensure that an inner party's review proceeds in accordance with the laws demand and then that review ability holding isn't a political hero for quick to call people challenge is not the manner in which the agencies review proces was instituted but whether the agency should have instituted review metal so she is clearly distinguishing the institution decision from how the the  d mr wang good morning your honour's and may please the court philip going for after only real time during my friend's argument i don't think i heard any dispute about the board's terminations order not being a decision to institute and it clearly is a decision not to institute for several reasons  board's order repeatedly says it's reconsidering its decision to institute and then deciding not to institute the entire basis of the board's order was about applying the section three  jurisdiction to consider it right thank you judge so i think that question was discussed at length at the recent milan oral argument and i agree with what the parties seem to agree in understood it and i may have misunderstood it regulatory time limits and reconsidering institution it would be a poor vehicle here on earth because i think the unfair about the timing or the fact that came about in this case that the the pattern owner we we raised the time bar issue about six months after the institution decision where the petitioners had made and they're filing in immediately after the go pro guidance came out from from the director and we asked if the patent we asked petitioners to agree to stay the deadlines because we thought we had a very strong argument that the all petitioners retyping barred and to agree to have that be decided and petitioners refused our request and plowed ahead but the  issue was brief so it was certainly no surprise it took about four months for the parties to do the briefing and four to to to issue his ruling and we also asked to push going the oral argument if we could please get a ruling on this dispositive issue and again petitioners refused and they want to plow ahead and so we don't think that it's quite above board to  consideration of institution none of them addressed the issue directly but bio delivery is very instructive because the reconsideration of the institution decision occurred nearly four years after the institution decision because that followed a final decision and a rematch back from the from the federal circuit so i don't think it got into the details of the exact timing is but i mean for four years that the the fact of that i'm sorry you you said by a delivery is that right are you referring to a different case i believe i believe it raised that this court has the ability to decide them and then this issue i think that would be incredibly hard in a case like this where you know no one has a right to and i p r i p but i think that the final final and on appeal more captures collateral challenges for example you know like an e p a district court case which is not necessarily on appeal but would still be precluded under under i don't think that time limit you know precludes the court's consideration here and i think that the court's tokyo case which discusses the general authority of an agency to reconsider its decisions just a reconsideration has to happen in quote unquote a reasonable amount of time after the initial decision and i think that in any time if the board is reconsidering its decision in the final written decision that  order here was a was a reconsideration of institution we don't need to quibble about the language but just to be precise what the board did here was simply terminate the proceeding they didn't reconsider their misremembering the arthur extermination was under forty two point seven three in which there's actually an adverse judgment this is under the more general forty two seventy two which doesn't talk about anything like a judgment it's just proceeding over and i thought the same both my tronic and earlier g t n x made clear that this kind of forty two point seven two terminations by reconsidering the institution is the same thing as four for any kind of review review ability purposes and on institution and the st instance again your honor the the the notion that there is a non institution available is something we dispute we think that they made the decision to institute and therefore when they terminated while not i agree with you it's not it's on all fours with our four x the point is the terminations did in fact in the proceeding and under the a we still have the ability to challenge that and would do so because it is outside of not only the regulatory framework that your honor identified but the statute the statute says three months it doesn't say  and again with the subject of actual rule making by the office where people commented and it was adopted and everybody agreed i heard mr foreman say well that's only for reconsideration as a matter of right but again within the statutory framework and he cites the tokyo case and that's the correct one because the tempo case tells us that it has to be reasonable and certainly the statute tells us in the st instance under chevron step one that when they put a time limit into the statute it is eminently reasonable and that three months time limit is something that they were nowhere near the performance adjusted under that under tokyo we can wait until the week before the final written decision well the rule has no time period beyond the final written decision so i don't think that's a fair reading of tokyo tokyo tells us that those time limits for reconsideration have to be reasonable there's no showing here that waiting until just days before the final written decision within r s and so there was no reason for us to treat it in any other fashion and then secondly of course the go pro decision came long after institution and the entirety of the institution phase and the suggestion that somehow that general discussion about it but it no time was this issue actually squarely raised or dealt with in thank you mr cordell and the other counsel the case is submitted the court will pause momentarily to set up for the law clerk admission member of the bar and is in good standing with the highest court of the district of columbia i have knowledge of his credentials and i am satisfied that he possesses the necessary qualifications i know this because elias worked with and texel and a wonderful colleague to me and his code clerks to boot i believe that the bar and our legal institutions will be enhanced by his bright promising career  very compelling a judge still what say you i don't know how we could deny that notion that sounds very convincing i support the motion ok thank you so  i guess now it all comes down to me well i unfortunately didn't get to know mr kim as well as i would have liked due to the circumstances of this past year pandemic but on the strength of judge toronto's motion and my knowledge of all of judge toronto's prior clerks as being tiptop i happily also support the motion and the motion is granted and that you will support the constitution of the united states of america welcome to the bar of the united states court of appeals for the federal circuit congratulations