are here for argument the first case before the court is case number one seventy two one seven one seven two six it's an appeal from that the words it chooses when instituting a proceeding are p j r are important and that it makes a difference whether it's instituted under three fourteen a or three twenty four and what words it uses to say we're going to begin a proceeding make a difference you don't mention the possibility of us just disagreeing with the board's application of its own packer set or if we find this not indefinite even under packard isn't that enough for you some issues that they may further opine on why wouldn't we do that you can your honor and the reason i say why you might not do it and the reason why i think this is a really interesting kind of historical time is that to my knowledge at least we could find the directors but if we'd find this not indefinite even under pact so you're hundred to two points i think from our perspective if we want to go beyond just finding it whether it's indefinite or not but looking at nautilus versus cracker first this kind of the job of the federal circuit it's the job of the federal circuit is a judicial function it's also the job of the p t o director it was given they were here she was given specific statutory authority authority under the a i a proceedings and they've exercise that authority at least with regard to be our eye which was upheld by the supreme court now they say they're going to reconsider that and they're also going to consider the indefinite a standard why wouldn't we let that play out at the p t o given their statutory authority to do so if we can resolve this case in your favor on the standard that was applied here i understand your honor and the again the only reason or not again the reason i would suggest is that the p c s fail to do it toda this i don't understand why we would short circuit the director's exercise of his discretion in this regard so then your honor i would say looking at it from that perspective if you took a ten thousand foot view if you look at the fact that the director is appointed by the executive and that the p t o is an executive part of government and you are the judicial part of government to me this is a legal standard and i don't even think the director needs to reconsider because not only is the law of land it's a supreme court decision came after packard and the supreme court was very clear when they said they were providing a compass to the patent box they didn't say we're writing a compass to district court litigation and examining in the context of proceedings proceedings and deeding quo so they said exactly the opposite that a different standard for claim construction could apply i'm not sure whether they would say the same thing production and less or not they say that novelist should apply but this all seems very premature it seems to me like you're asking us let's assume you went on the packard center i again i agree you can't promise that i understood you you're asking us to issue a lot of premature advisory opinions on what could happen when we don't need to so the director originally in his intervening briefs supported the packard standard and in this case he's withdrawing from the packard standard so again it's not necessarily one way or the other with respect to this case if you it may not be is and isn't your best response in addition to running from it that we're talking about surely legal issues when there doesn't seem to be any indication by congress that granting the authority to establish rules meant that they were going falls off that's my best response when it's full enough if asa shaking to detach so when he gets the merits of substantially filled i think the best argument i have there is this court literally looked at the same thing the p top did it looked at the language of the claims in the context of the it doesn't change the fact that you looked literally to the same thing that the pentagon feels were did you look to the language of the claim the specification and despite all of the other stuff in the p tabs final decision all they did at the end of the day was look at the language they looked at the  looked at what it said and then telegrams along with the pentagon appeals were trying to take you from the middle of the plain language from the word filled define that and then work outwards it's like it's like buying something from ikea and trying to assemble the furniture by starting in the middle of the instructions and you find that all the time that you've got the legs on backwards and there's three extra screws i mean that's what they're doing with the clay language they're trying to make you build up a bad idea table so in our view i think this court did it correctly in the  x case in the former injunction case and i think that today the easiest thing for the court to do is say yeah what we said when we looked at the claim language last time is also true now and it doesn't change under patent or not our advocacy for novelists is kind of a same time while the p t o is the only one the pattern of his words the only one of the experience to say you should give them great deference to their decision they're the ones who know and that's really the only basis for deference here because clearly the pattern standard wasn't applied with formality wasn't and again we found that they have i think in fact the pentagon appeals court has passed on two of the child patents now the language is different so i'm not going to rest on that but it's clear that time and time again they try to make they try to exclude the person of orders  so both parties have agreed i think it's my ten year old but well i think that's about what i told my clerks yesterday when i was talking about this i mean whether a water substantially doesn't seem to require all whole lot of expert falls off but at the same time we do have shaken too detached so i think that that the examiner in conjunction substantial in conjunction with the shaking to detach limitation which is the other found of the claim i mean it does it but yet the sense officially felt at the time  son but we agree that between the parties that it was a person with an associates degree in engineering with some experience in expendable containers but at the end of it right oblique six product it i mean i actually think it's a little more sophisticated than you're making  cell i mean but it's your client so it's up to you but it's incredible i'll say this for my client i don't even know if he's here but it's incredibly ingenious i mean there's no question that and this you know goes to something's happened for this court obviousness but for two hundred please the court on behalf of telegrams morgan chew the tennis position is that a person of skill would know that a balloon is substantially filled with water because  shaken it would be detaching and if shaken it doesn't the tach it would not be substantially filled there are some problems with that first it completely we have to ask you the preliminary question do you have any views about if and i know you don't want us to agree that it's definite and substantial it will but if we do under the packer center were would there be any reason for us in this case to resolve the  very briefly the two different standards and then get to your question your honor i thought long and hard about whether the standards are different packard says it's going to be indefinite if it's unclear so be definite if it's clear and i ask myself what's the difference between clear and where a person of ordinary skill in the yard can determine the scope of the claim with reasonable certainty so clear versus reasonable certainty i killed a lot of brain cells trying to figure out if there's a difference i do think that this court could resolve the case in favor of telegrams under either standard and i'll explain that in greater detail so but if we resolve the case under either standard in favor of tennis it's the same thing why would we are opposites ok but is it isn't there something in between that still isn't unclear like reasonably clear well i don't know i can't answer  that i really see these standards as being fairly close but of course there has been commentary by various people writing review articles in the like saying that there's a difference but i agree your honor if this court were to resolve between insolubility ambiguous and what the examiner could possibly have the ability to analyze given the limited record examiner and yet at the patentee just wanted to say the examiner had to ply the insolubility m big language don't i agree with the historical description that it was very different world nautilus of course applies to district court proceedings without question it does not apply to the existing world which respect to examination proceedings and we also think with respect to r s but let me go back to the merits but packer we were very careful to talk about issuance analysis right we said it over and over and over  circumstances we were saying that there is at an extensive back and forth with the examiner and if the examiner asked for information to help make them feel more comfortable about whether it's definite you have an obligation to respond to that and we just sat in the context of that case there wasn't adequate response is that what we said in packard that basically yes and of course the p g r's r well the the  o said it was in between i wouldn't describe it that way it is closer to an examination than it is to a district court proceeding and of all of the different a i a review type or c ger's it is close is for a variety of reasons and the merits of what substantially filled has let me give you an example because what the tennis position is to equate the balloon the catching and showing that the balloon was substantially fill so let's suppose we have a there to court from a district court decision found fragile general to be indefinite for a claim for drilling for oil and there was an elite very often found claims using the word  look at the overall context here need to know what filmed this to begin with and then add to that the word substantially right and so in our last case admitted that we are applying a novelist but the court went through and and considered that very question does this use of this term of degree render it indefinite we said not in the context of these claims and that's that's the case of an not arguing today that the word under these differing standards it isn't the point of the statutory standard to let the public know what the invention because i mean anybody they pluck out the street knows what substantially is i mean unless you're playing want to play games and try to design around and say we're selling it water balloon that's not substantially failed but who wants to buy a water hole in that doesn't get substantially felt so i'm not slightly higher standard to meet i don't understand how the term substantially build water is at all indefinite but we we approve the use of supply i mean otherwise if we had the word bill you would be reasoning for the p tap as well as the prior federal circuit panel is based on the record there was a signal were significant differences when you name a few of those differences there are multiple declarations for the people or there was cross examination with respect to their opinions on indefinite that cross examination didn't exist they were findings of fact by the peak with respect to the credibility of d findings of fact under credibility of a witness and the p tap by other decisions of this court is entitle to deference so the reasoning at a very high level could be the same but it's got to be well there was definitely briefing but it was based on a much skinnier record and there wasn't the kinds of finding of fact based on the credibility of the witnesses so what this court misdoing in this case this appeal is the ethics itself whether the substantial evidence rule should be applied when the pizza makes credibility now there was a cross examination through deposition point i'm actually making and not hiding behind credibility or any other work is that you have two competing experts and they are cross examined and all of that for the record is before the board none of that in terms of the c was before this court of the dischord or the magistrate judge and therefore we have to look at the full record in both cases and determine were the credibility determinations and if so was it entitle know i i beg to differ when you are reviewing the p tab or another agency's decision and their decision is based on finding of fact then the court needs to review those fact and in this case it would be under a deferential stand us but i don't think if it were determined as a matter of law based on the intrinsic evidence in the patent and the claims in the specification that this is not as a matter of law in a hypothetical case i think that's possible i don't think it's possible here because you have experts be personal the court are not persons of skill in new york second you have experts with different points of view who are under cross examination and there were finding of facts that work key to the agency's decision so in this particular case your honor i would have a different point of view when needs to review t so and i will start there are so that i challenge you to find the pattern appeals were written decision anywhere where they said we make a finding of fact that a lot of reasoning and dr corder which is testimony for example they didn't say well they say unpersuasive they said we find it unpersuasive but they didn't say we're not going to rely on it or we're going to rely on dr cameron's what they did is exactly what this court did they looked at the claims in the context of the specification but they reached the opposite conclusion they didn't do anything more anything less so to sort through all of that and i appreciate mr shoes in a tough position but on there was no evidence that the p t produced they never made a finding of fact saying we think that dr cameron believed that the strength of the rubber band is this and therefore it's you know it's invalid now they said well reading this we think substantially filled means desired state all that was about reasoning it was all it was all intrinsic there was no intrinsic evidence in either place so at the end of the day i the issue here is burden agnostic so that's the other point i wanted to make it doesn't matter whether it was a plain error stander or to novo or whatever the standard was both decisions the decision of this court and the zero six patent and the decision of the pattern of appeals board previously were agnostic of the burden they were literally just legal reasoning looking at the pattern in the context of the specification look at the claims in context specification so that to me is kind of i mean i'm not saying we've won but to me logically i don't think you can go outside we have no chance to amend so there's no back and forth which is one of the principle pieces i think of packer that there's a dialogue between the patent holder and the office right that they're going back and forth and they have a chance to amend and you you add things to the patent like with the examiner did here substantially fill but that's missing in the ph our process so in our view that's the reason why at the end of the day nautilus is something that makes sense because it's much more like a litigation process a judicial process and for those very same reasons it's much more function of this panel of this court to make a decision about what the law of land should be thank your