to the contrary the law provides that collateral stoppel issue preclusion applies to proceedings in the patent office including the board proceedings below so i'd like to address two points the first is the law showing collateral estoppel applies in circumstances of this case and secondly is that in any event the board decision was wrong on the facts that the that b d s i buy or delivery actually proved its case to some extent honor if your you are correct that the their reading sam proceedings is not provide for cross examination but they prefer but they did provide several rounds of back and forth between the parties examiners below a board on review and opportunities to contradict the evidence given by any witness including for example by a counter declaration by citing references or by putting in a paper that explained why there was something wrong with what the expert put forward so while it is a difference it is not a difference that matters here and under the v a and be hardest case that the supreme court handed down in two thousand and fifteen that involved g t a v proceedings where there is are no live witnesses and a district court proceeding where there are like witnesses and the court said that is not that doesn't matter the were the intervenor argues that that's the case here because in reexamining says the court knows you have several steps several back and forth forth between the parties involvement of an examiner in hand you have the five eight case which was final before these proceedings below started and on the other hand you had two that were in process the three three seven and the zero eight zero all three are actually well it's a question that this court addressed a couple weeks ago in the max linear case in finding that in an i p r proceeding collateral estoppel does apply so we believe that that was the correct ruling that i provisions in the america invents act that talk about a stop in court proceedings after you've had an ip are but there's nothing else that would address the question of whether an allstar of reexamination proceeding would have i would agree are the goldberg declaration which is sort of like the linchpin for the proposition that chen does not disclose uniformity is flawed in many ways as we discuss in our brief but let me just  out two ways in which it actually demonstrates that the ten percent of the less than ten percent variation standard is met the first way is that doc and this is all you can see this all on in the record her statistical analysis so they're not actually out of chen and what she did was she chose values that ended up producing a standard deviation of thirty five to forty four percent greater than chen required gente says one milligram plus or minus she chose values that gave her one point three seven nine milligram one point four three nine milligram or one point three five  the ones that she put in and if you did you'd get below ten percent because even though she chose these higher values that gave her a higher standard deviation and chance specifies she also rounded down she said ok one point three one point four three nine is rounded down the one a standard deviation of one so just as this as a statistical analysis this this declaration is not only  use that differ by more than ten percent from the mean lie how to cite the variance allowed by claim one of the one six seven papped that's a direct quote that's what they determined that would mean a range from ninety percent to one hundred ten percent but what goldberg calculates is not that and she says in her decoration here's how here's how i did it and i was told to do this by the lawyers basically is what she sa what she did is she determined the difference from the highest value sample to the lowest value sample in other words taken in not measuring from the mean but measuring from the top of the biggest sample to a little sample again with values that she herself chose and put in the table what she came up with what at the highest was a range of twelve percent that's from one value to the other if you think of that  six percent collar around the mean you've now got a range from ninety four percent up to one hundred six percent this proves that ch'an discloses values that differ by less than ten percent experts showing that by a visual test away test and a dissolution test the values come out within that ten percent range so we believe that on the merits of those those matters were demonstrat the relatively robust nature of the results ammunition proceedings flow which took place over a period of five or six years for all three of these that you have a very solid invalid over the chen reference because of its disclosure of the uniformity limitation that appears in these one six seven claims just as it appeared in the claims of the three previous patents that we believe there are several reasons why collateral estoppel should not apply but what i what i would like to address is the lack of identity because we believe there was a lack of identity versus the  apply in your case our series is that our argument is that collateral estoppel does not apply at all because collateral estoppel was not could not be proved because there was a lack of identity and we have several other arguments but that is what i argument we support that argument but our argument is that if it does apply it doesn't apply if it does apply at all to the board it doesn't apply in this case because there was a lack of identity well in the in the board the ship and they did consider arguments on collateral does apply in a general sense in these proceedings but in this particular case we find that it doesn't right we i agree with your assessment and we agree with the board's reasoning and the reason we want just to make sure you do agree that collateral estop let's rephrase the question then it apply sure and cancer proceeding yes but it can apply in this instance because there was a lack of identity so collapsed applied in i p r proceedings and in this case the claims require a measurement of an actual amount of active and comparing it against a desire ok and the point about the way test is you can't get a measurement of an actual amount of active from a weight test ok the weight test isn't good enough now going to the issue of identity in all three re examinations what the board found was one we are not going to construe these claims to require an actual amount of active as compared to a dosage amount or a desired amount reference amount and chew that it was the weight test that was the reason why they were rejecting the claims and this is very succinctly pointed out in a paragraph in the three three seventy three on page appendix page two eighty four in that is quoted in our brief and i'll nature of inner parties re exams but at its core this the collateral stop wish you can be decided on identity alone in order to apply collateral stoppel the issues have to bend identical if there is a difference in pattern ability even if you have the same claim language and we cited case on this in re hers one of them in our brief even if you have the same claim language if there's a different issue of patentability collateral stoppel can not apply why the board low found that appellant's had failed to establish unpin ability on the merits i don't know i'm not sure that that's an element of ok that was struck cross examination is not an element of collateral your honor stated correctly that chen there is no disclosure in chen of an actual amount of active in the individual dosage units and that's what's needed to do this comparison in order to invalidate the you need an actual amount of active as compared against a desire to mouth i've already explained it the way test isn't good enough to establish all of the arguments that were made were about the way test we dispute that chen even passed away but it doesn't matter because the weight test doesn't give you that actual amount of active now the only other issue on the merits was that knowing that the weight test wasn't good enough appellants actually tried to do the only test that will give you that actual amount of active and that's a chemical assay and what they tried to do is recreate the films from chen an example seven but they failed to recreate those films they weren't reproducible and when the measured the films that they tried to recreate they did not measure the thickness and so they were not able to prove that they measured films that were substantially equally the same size and that is required have i mean that there were certainly declarations that were submitted in the priory exams and the testimony in this ip are highlighted the fact that the thickness was an issue and that you had to get an actual amount of after for those claims and shoot if the board had actually construed the claims in the reexamined to be similar to the claims in the one six seven pattern that cross examination would have been significant in determining patentability or at the very least would have highlighted to the board below what the real and true issue was in the one six seven i p r well as i mentioned the issues in the in the reason  certainly a trial and has a lot of aspects of litigation and there are more stock holes they tend to the statute under i p r than there are under the former  fifteen there isn't a stop bill that says that the petitioner may not request or maintain a proceeding before the office with respect to that claim the claim that was already at issue on any ground that the petitioner raised a reasonably could have raised in the earlier i p r proceeding so that's one of the statutory a stoppel that addresses other proceedings at the agency but what should what you what you argue that i hope i don't understand where you're headed the there's section three fifteen either i was just talking about that that makes in one particular estoppel which would be superfluity if the doctrine of the common law doctrine necessarily applied also there is the provision under section three fifteen d d that talks about multiple proceedings and it gives the agency the discretion to for example consolidate or stay multiple proceedings on related issues or not and implicit in that is the assumption that if these proceedings are not concern elevated they could have different outcomes and the agency is going to have to deal with the the different  there was a silence there is that provision that has that talks about a stop will there's also other provisions that another example is section three sixteen a for which allows that agency to establish regulations governing the relationship of review of a given review it to other proceedings and in the office so it's another example of the agency sort of being entitled to decide how to stop all well or will not apply and by prescribe ing regulations there's a there is also the section three twenty five d the second sentence of that section point here is that layering on the common law doctrine on top of the agency's statutory requirements is could result in an anomalous outcomes so for example if the agency has to apply a common law a stop will it mean b that in a certain situation it cannot take into account whether those were whether that prior was previously before the i r s so it's well that doesn't mean within the director's discretion but when but when the agency has not adopted any rules establishing anything beyond what the statute mandates there isn't anything beyond the statute mandate and  at the institution stage saying the director can decide to not institute based on having the agency having already seen that that prior art with those same arguments so that one instance in which the agency has the discretion to make a rule saying we have order or maybe not even under rule maybe it just has the discretion inherently under that statute to say we're not going to institute this case because we've seen this prior art before that didn't happen at the institution stage in this in this particular case the collection of businesses or piecing together arguments i just don't see that that arguing to the board that that to question the prime minister and to the board sort of just started with the premise that both parties started with that collateral estoppel applies in these proceedings and then looked at whether or not it applies and  so the agency would like the chance to address that premise in the first thank you principle applies when there are still problems with the merits of the application are there not where you are is your view that that answers everything well we see we think that saying oh we have discretion to ignore it even if we think it does apply we think they went wait far too broad from their case and in that case they actually applied collateral estoppel with respect to a claim construction from a court proceeding into a reexamination review so we don't think that case supports that but with the facts here my brother at the bar argued that there was not an identity of issue well the certainly was and in fact the easiest way to see that is that the word in its decision relied upon dr goldberg for contradicting the very thing that the board had found in the five eight really exam and one of them is the finale of judgment where the judgment has gotten to to the final stage at the time that the issue is presented there is an issue so in the proceedings below twin on for service relations have been fully decided that's correct your honor and so we rely upon the five a date which was which was final before these proceedings started and then we rely upon the others that as a by and by way date and as i think a built in probable with whether the issue  actually litigated there believed i believe the issue was actually litigated your honor because the question was what does chen disclose that ten percent limitation on an active and the and the board in the five eight proceedings held that it was and no other claims were raised by mana saw no other issues in the claims were raised by mom saw other than that uniformity limitation so there's at least a waiver even if they were they could get traction with respect to claims which we don't think we could get so we think that issue is actually litigated it does chen disclose the uniformity