we'll hear argument next in case if teen or four six screws those speed technologies versus lead to beanie mr chief justice and may please the court i'd like to begin this morning with why the use of the broadest reasonable interpretation with history congress left to the judiciary to determine construction standards and therefore in the american invents act there is no explicit statutory language directing the patent and trademark office to use any particular  standard of instruction but this court should reverse as a matter of statutory construction for four reasons first in summary all agree that the borders reasonable interpretation expedient demands a broad ability to amend claims and that's so because the broadest reasonable interpretation brings into play a broader array of prior art that may be distinguishable if the claims were given their actual interpretation review congress sought to substitute and provide a district court like litigation for the determination of patentability and therefore did not provide the wide liberty to amend claims i might  your argument if congress had not given any right for the board to amend thank you that would be consistent with practices in the district court where this record can't amend under any circumstance but basically congress here said you can amend once i'm not sure that that supports your proposition just the sort of my i think there's a distinction between allowing a party to make a motion to him and and the absolute right to amend even once and congress did not provide any right to amanda and intraparty its review it provided only an extremely limited ability to seek to a adjudication so simply as a matter of numbers the board has denied ninety five percent of the motions to a man in forty two months of interparty it's review the board has allowed five motions to amend and allowed for less review intended interparty its review to adjudicate property rights and in doing so it makes no sense to attribute to those property rights a hypothetical interpretation of their meats and b rather than doing what district courts do which is to give claims their actual plain and ordinary meaning the third reason your honor is why this court should reverse and and have the patent and trademark office use  ordinary claim construction matter is because there are a number of anomaly is that injure the patent system and injure patent t is that stem directly from the use of intraparty it's review those include a claim meaning different things in the courts and before the board those include different results in the courts and the board as to whether a patent is property rights are taken away and those include claims meaning one thing for patentability in the board but a wholly different thing for infringement in the district courts that's simply untenable and there's no reason to suspect that that was anywhere within congress's intent and actor in acting intraparty its review finally this court should reverse because  the government really has not in any way offered a support of using the broadest reasonable interpretation that is in any way tethered to enter parties review it simply says historically we've done this before and so we should be prepared to do it again strikingly missing from the government's position however is really any objection to taking the district court substitute that congress and acted and using the claim construction that the district court to do the ordinary meaning of the claim terms there's nothing really in the government's brief that suggests that it would be inappropriate to use that claimed construction and that's the claim construction that should be use is that standard is the standard of proof or in the  same in an infringement action in district court as it is going into parties or it is not just alito and i think the reason there was a sensible reason behind it in that congress tweaked the cord like adjudicatory system and recognize that it was establishing a board of experts and therefore there was no reason to have the presumption in favor of patentability that we find in the district courts but that in no way suggests that to delve into the question of justice sotomayor asked about the amendment process i think it's important to recognize as the patent and trademark office repeatedly has before its merits brief in this case the profound distinction between profound distinction between the right to make a motion to amend in adjudicatory context and the ability to amend patents in the examination of context where there is an iterative back and forth generally statistics that i was citing in response to just to some of those original question ninety five percent of the motions to amend in it parties review are denied less than thirty claims have been amended while ten thousand have been cancelled and there is simply not be kind of ability that is necessary in order to avoid the prejudice to the patentee of giving her claims that construction broader than what they actually are that's afforded in intraparty history do the boards institution decisions always set out what it understands the broadest reasonable interpretation to be and if they do what is it must the board stick with that throughout the game is wholly inconsistent with its position on the second question presented about appeal obviously the claim construction interpretation is subject to appeal and so it can't be fixed in the institution determination the final claim construction standard that the board applies to make the ultimate decision as to whether the patent is going or survive is in the final decision that the board renders at that point in time it's too late for the patentee to make any kind of determination as to whether it would like to amend and cancel the claims that are under review i also think it's important to distinguish the examination of context in which a stork like diarra has been kept into historically in fact what's used in the court like litigation structure that congress claims there are appropriate construction that's never happened in this proceeding that would be the result of your waters agreeing with us and we believe that once we go back to the board and the board applies the appropriate construction to our claims  claims will survive review or at a minimum we will be permitted to amend because the basis of the decision by the board to deny kozel the opportunity to amend was that the claim construction read out of the the board would be applying the ordinary construction standard which we believe would include the embodiment that's in the specification and therefore we would receive relief well if that patent is invalid  to this process not necessarily justice kennedy and the reason is this the purpose of the broadest reasonable interpretation expedient as the government agrees it is it is not a claim construction standard as the federal circuit said scorcher what it does is try to test for ambiguity in the claim language not patentability patentability is the standard that congress set intraparty its review but what the broadest reasonable interpretation does is try to test for ambiguity in the patent language so it can be amended so the fact that a patent to invention or an application may not pass the broadest reasonable expedi does not mean that the inventor has not claimed to patentable invention it simply means that the language is ambiguous and the language needs to be refined and that is a wholly different actually i guess i was thinking of the mindset that process the structure that the p t o uses in the first place it looks to the claim if i were the examiner to determine whether or not i should grant then i think i'm going to give this the broadest interpretation to make sure i'm right it seems to me or am i wrong but that's not what they do they do but not to determine whether the claims are patentable they do to determine whether there's ambiguity in the language and your honor you can go back to a whole line of district court cases from all the way from car and i think nine hundred twenty four in the in the d c circuit to the twenty sixteen decision and p c c broadband and all of the cases in between  then write hiatt and all the other ones the purpose of the broadest reasonable interpretation expedient and it's called expedient for a reason is to determine whether a claim language has ambiguity in it if it does then the question that justice kennedy asked and i think it's an important one to me anyway was if you forget this proceeding if in fact in the broadest possible in terror whatever reasonable interpretation and you were in front of the patent office and that's what they would look at and if it was too broad because that brought it to you know has flaws in it of whatever kind the patent doesn't issue is that right or not right it's not a question either right or wrong you can tell me i'm right or you can tell me i'm wrong there isn't an either or process with a right to a man i know that so i know that i'm saying if at the end of the day on the broadest reasonable interpretation it is not patentable there is no  that's correct ok now if that's so you could look at this new law as you are looking at it as trying to build a little court proceeding if i thought it was just doing that i would say you are right but there is another way to look at it the other way to look at it and that's what i would like your comment about is that there are these things for better words let's call them patent trolls and that the the the patent office has been issuing that shouldn't have been issued i overstate but only somebody and what happens is some person in business gets this piece of paper and and looks at it and says oh my god i can't go ahead with my invention and so what we're trying to do with this process is to tell the office you've been doing too much too fast go back and let people who are hurt by this come in and get rid of those patents that shouldn't have been issued now we will give you again once the same chance we gave you before and that is you can amend it once if you convince the judge you should have done it before but if on the broadest possible you know reasonable interpretation it should have been issued working and selling it and that is for the benefit of those people who were suffering from too many paths that shouldn't have been issued in the first place i don't know if it's that second purpose then i would think well maybe this is right what they're doing and if it's ambiguous between those two purposes i would begin to think well maybe they should have the power themselves under chevron meter or whatever to decide which to do right now that's that's the argument i think and it's in my mind registering the other way so what you sa are adjudicating property rights and it makes no more sense to adjudicate those property rights in a court like setting by pretending that those rights are not what in fact was granted what the patentee claims are what the p could a certain district court the frenchman litigation then it does to when you're in trying to determine whether someone's property encroaches on another which i would submit is really an apt analogy for the obviousness anticipation  tests we look at what the boundaries the meats and browns of that property actually is so congress assuming that it did what your honor suggested established a system to do that but  in a court like setting the actual patent rights that a patentee obtains not ones that someone suggest might be broader that is to determine ambiguity and claim language not to language is and the us it how could it say that you have a valid property right in something that's ambiguous the test of the ordinary meaning as an entity by philips and progeny of first look at the claim language if there's ambiguity in the claim language then what is the meaning of that patent will be determined in light of the specification of prosecution history and other intrinsic evidence in the real case where there still may be ambiguity then the court may consider extrinsic evidence dictionaries other writings by the patentee what somebody of ordinary skill in the art might determine a particular claim limitation to mean so there are a number of tools in the o decide what a broad reasonable reading is unless it looks at all of those factors and decides that the specifications and all of the others in this don't sure continue to provide ambiguity in the past it is not the broadest reasonable interpretation is considerably different than the ordinary meaning construction standard and the fact that the patent and trademark office has a much in the manual for pattern examination procedures the pattern and trademark office tells its patent examiners we quote do not interpret claims in the same matters as the courts just recently a very important tool that courts look at in the ordinary meaning context the prosecution history in the federal register the patent and trademark office said that the only time it looks at prosecution history is when it is actually raised by the parties relied on by the parties and explained by the parties there are very different sub tools if you will within broadest reasonable interpretation and ordinary meaning and that's because they intend to accomplish different purposes p t o tells us examiners that one of the reasons we use the broadest reasonable interpretation is because unlike the courts we don't have before us a fully developed prosecution history well when you're in intraparty is review you do have a fully developed prosecution history and that's what we should be looking at how does the relationship between the district court infringement action in the proceeding before the board actually work out in practice you're suing someone here's my patent you're infringing it and the infringer goes to the the board and says i want to determine the validity of the patent in the district court is doing the same thing release determining the scope of the patent in terms of whether or not it infringes what typically happens  is in those situations where a patent is not so jack did to interparty its review and i file an infringement case is that the defendant may then seek to file a petition before the board seeking review of the patent and seek a stay in the district court and in fact in this rather substantial transfer of the adjudicatory function from the judiciary to the administrative agency we find that about eighty five percent of patents that are being adjudicated by the board are subject to district court litigation and in those eighty five percent of the time this records are entering stays seventy percent of the time so in fact what is happening is the judiciary is deferring to the board in making decisions about the patentability of the claims that are at issue i would think that's a little burdensome to the district court they sort of have to get deeply into the patent case and then take whatever the board says is the proper room whether it's about valid or r that rule would prevail in if the parties review the no presumption of volatility congress record that shows the difference in these proceedings there are no doubt is a difference in the proceeding but the fact that congress recognized the expertise of this newly created board that it was a stablish ng and thereby remove the presumption because of the expertise in the way suggests that it adjudicating patentability the board in i p r should be dispensing with all the  period from which the time the board must reach its final decision absent good cause contrast that with the examination proceedings in the examination of context in the reexamination context take two to three years why do they take two or three years they take two to three years because this is iterative back and forth looking for prior art discussing with the patentee what the chief invent asking her to amend her claims if they're deemed to be ambiguous or too broad that doesn't happen the historical reason that congress has never addressed claim construction issues it's always been a matter left to the judiciary number one and number two the process that congress and acted in i p r is a brand new a proceeding unlike the p t o has ever confronted in the past i mean arguing that one in intra party is review should use the broadest reasonable interpretation is that is really the quintessential example of trying to pound a square peg into a round hole simply because that peg used to fit a very different hole congress established a very different proceeding and intraparty its review it is scored like it is done under very similar circumstances to the way a case for seats in the district court it adjudicates actual property rights and takes those property rights away and for all those reasons if i may say the statute basically greeks that the the system the congress established is consistent only with ordinary meaning and if you look again at ability to amend and in fact in in examination proceedings hadn't applications are almost always amended in reexamination there are mended sixty six percent of the time intraparty is review they are amended less than one half of one percent of the time and that is why the claim construction standard should be the ordinary meaning under the heavy presumption of judicial review of administrative actions there is nothing in the statutory scheme that meets the heavy burden to overcome that presumption the statutory scheme here can be read either as the government would like to read it to bar review forever but then that provision has to be limited to its terms that what is barred is the director's decision to institute under that section as the statute says not all the but what the statute does do that the administrative procedures act does not do is number one bars appeal forever of decisions not to institute because those decisions will never become part of the final decision which you can appeal under separate statutory scheme under the american invents act the statute does that work on the saturday also does the work of barring interlocutory petitions for mandamus thank you counsel thank you mr chief justice and may it please the court the p t o is reasonably decided to use its longstanding brought us reasonable construction approach in interparty its review proceedings because as justice ginsburg just noted that they are a hybrid between they're  exactly like anything that has gone before but the p t o recently concluded that they are materially more like all of the other sittings that the p t o and before that the patent office has had in which it has repeatedly used precisely this approach and it  expressly used it when it is possible for the claim amendments to be made because it promotes the improvement of patent quality that congress was interested in promoting in the america invents act by eliminating overly broad claim mr i'm not  so how different at the end of that process he is the ordinary meaning from a continuing brought me forward had all these chances to a man to make things as precise  narrow as the patent office thinks it needs to be well i do think that it is the case that in most circumstances these two different forms of construction are going to end up in the same place that's true in most of the case law the supporting us explains this in particular if so then good service and end up in the senate doesn't end up in the same place basically when you get to the very end in the court has to apply the presumption of realty that justice kennedy was discussing before that requires the courts to construction of a patent it gets to the end of the process in both procedures in the broadest reasonable interpretation and in the philip standard they're going to start with the language of the claim in light of the specification as it would be understood by a person of ordinary skill in the arts it's true in the initial examination context that the p t o does not use prosecution history but his expressly noted that it will use prosecution history in a proceeding like this the i thought i was that's what i thought was already in existence and and my friend noted that it will only consider prosecution history that's brief by the parties in the i p r but the same thing is of course true in a district court proceeding the district court's going to consider prosecution history that's introduced to it before the parties and so at the end of the analysis if a court or the p t o are left with two different potentially reasonable readings of a patent claim a court has to adopt the saving construction that and the p t the one in if the concern is one about obviousness or anticipation in light of prior art that's probably going to be the narrower construction the board the board and the p t o by contrast and before that the patent office has recognized if you have a claim that could reasonably be read this isn't just a hypothetical reading but this is one when you take all of this into account that could reasonably be read as reading on a prior patent or as being obvious in light of a prior patent then that's a circumstance in which the board's  say you need to make this clear otherwise we're going to uphold that it's not patentable and that's exactly what's happening in the motions to amends that are happening before the board in i p r proceedings right now my friend is correct in that or granted there was one new one last week it's a small number but the vast majority of these amendments are being denied on grounds of on patentability and this is a reason that actually isn't that different from what would happen in the initial exam or in the or in the reexamine and so friend quotes section three o five which is the standard allowing for patent holder to propose amendments in a course of an ex parte is reexamination but note that it's the ability to propose amendments that's not an amendment as a right just because you propose an amendment in there in a reexamination doesn't mean that the p t o with the end of that is going to say that's right this is patentable as it as you have proposed the amendment it still has to find that as amended it does not beat on the prior art characteristics of the p t o in the district court but it seems to me perfectly clear that congress meant for this and indeed to substitute for the judicial action so why should why should we be so wedded to the ways they do business in the p t o with respect to the broadest possible construction when the the point is not to replicate p t o procedures it's most take the place of district court procedures it's supposed to take the place to some extent but not to the ultimate extent it's not supposed to perfectly replicate the results of just a court litigation and we know that because congress has imposed structural differences on the i p r proceeding that would guarantee that there could be different results at the end of the day most importantly there's the different burden of proof if you even though a different procedures as we we can it's a very extraordinary animal in legal culture to have two different proceedings addressing the same question that lead to different results that's true mr chief justice but they they can lead to different results here for multiple reasons even setting aside the question of whether the products reasonable interpretation of well you're just saying that ok there's a problem here and so we should accept another problem that's presented where we don't have to do it well we we do think that the reason why this ultimately ends up being more like a bork proceeding or a p t o proceeding is because there's the ability to make claim and so you're not at the end of the process just stuck with having to of yes it's a small number so far many more motions actually three times as many motion sixteen motions have been tonight as moot they were contingent amendments where the patent owner said well if you're going to you're going to disagree with my claim construction i would propose amending the patent this way and the board said we deny your motion is moot because we agree with your construction that the patent is actually patentable without the amendment and this is not an instance where the patent owner is shooting in the dark where he has only one chance to amend as was already mentioned the p t o the board is generally going to give a preliminary claim construction when it issues its decision to institute the proceedings here at pages one seventy one to one results with respect to the same patent right in the same in over as parallel litigation one says in the other says not a yes that can happen but what do you do in that case well in that case if the patent has been invalidated by the the district court all the trouble of trying to construe the patent and then the defendant comes in and says well guess what i won before the ip review and so sorry but all that was wasted energy well i think this is the reason why the most district court proceedings have been staged while pending a parallel i p r proceeding before the board and there are time limits on the ability of congress especially addressed this in section three fifteen where it's hard to find out about the then you have to start one of these i p r proceedings within twelve months and so usually the district court hasn't gotten that far along and there isn't that much wasted effort and instead what we do is we go back to the p t o when the p t o gets the exactly the respect her district court move again we are very concerned because of article three we have to have a specific controversy specific injury and so forth but that i p r proceeding can be more speculative in that the board and the parties can say this could be interpreted in the future in a particular way is that is there a difference to the tone or are the thrust of the inquiries in the in the two instances well i think that ultimately the question in the i p r is is narrow because it's only devoted to a couple types of unbuttons ability and it's going to be about whether the p t o ever should have issued this patents because it was in fact anticipated by a prior patent is true that you do not have to be somebody who would have article three standing in order to initiate an i p r that's another thing that we think shows that this wasn't intended to be just a perfect substitute for district court litigation to be sure most of these i p r's are going to be instituted by parties who do have competitive interests to work concerned about whether they're going to be sued for infringement on the basis of this patent or or and therefore they want to make sure that this patent that they think ought not to have been issued is invalidated and that's what's the evidence that is to say i picked that up from your brief that this statute is in part call it a partial groundhog day statute you'll do it again till you get it right and partly it's designed here you go back to the i the patent office probably because a large number of business men told congress that they were getting threats of suits in respect to patents that are obviously should never have been issued now if that was the problem then it doesn't make it doesn't make sense to say at least the p t o has the authority under a partial groundhog day statute to do that part of it over and that's not surprising there were only six that actually got amended because they now read it before and because the p t o held these are invalid anyway ok that isn't so that doesn't move me but look at the view i just expressed of the statute there's another view that this is just a little district court proceeding designed to save people that time and money that they'd have to spend on the biggest record preceding right now what's the evidence that the first view that i had which would not say this is just a little district court proceeding is correct but then in terms of the notion that it's not just intended to be another little district court proceeding that happens to be faster and cheaper is is all of the structural differences that congress imported here to ensure that it wasn't going to be exactly the same and so as i mentioned it was going to be limited to certain particular grounds of one patent of billet he under one of two and one of three the evidence that could be considered there is limited the only pyrite that can be considered is prior art that comes in patents and publications and that's a narrower universe than could be used in a district court proceeding and of course the burden of proof is going to be different and so we think that in in speaking to all of those things expressly and and then also in ensuring that there still would be an opportunity to amend claims that ultimately is the reason why this is not sufficiently like district court litigation for the p t o to part to depart from it longstanding practice of using the be all right approach in every type of proceeding including most grant proceedings this isn't the first groundhog day type statute that that that the p t o is had is there when the district board free to disagree with the p t o reading of the patent but it's a fine this is a pertinent fact a mixed question of law in fact in litigation pending before me and i appreciate the fact that you think this is agency thinks this but my responsibility is to decide this case according to the facts and law and i disagree with the p t o s reading yes as long as the patent still exists if the end of the i p r proceeding is the cancellation of the relevant claim then there isn't going to be something to be lifted to get litigated about in district court but otherwise to claim construction that is adopted in all along the way in getting to upholding the patent claim isn't going to bind the district court any more than the district court claim construction would bind a different district court or the p t o ok saying that i understand what he thinks the scope of the patent is but my responsibility is to interpret it pursuant to a different that the p t o and the court are using different standards precisely because you can still clarify the scope of a claim when you're before the p t o so if the district court interprets the patent is that binding decide a legal question i mean how does it work whoever gets to the judgment first or what with respect to the question of whether the patent still exists if the p t o cancels the claims at the end of the proceeding then there won't be something to be litigating about it just for court if the p t o holds that the burden of proving that this claim is unpatentable has not been satisfied then somebody else can take another shot at that before the district court this particular party who preceded  r won't be able to because they'll be a stopped by section three fifteen from pursuing the same arguments in both forums even though there are different standards of proof even though there are different standards of proof there is only how a stop will normally works it here congress has expressly prescribes that you cannot use in the district court proceeding an argument that you reasonably could have advanced so the answer to my question is no that's not the way the stop will normally works that's right but i would also say that in this context the court has recognized  hsu before the district court during which the parties can take that issue away from the district court and come up with an answer that then by well i guess you're saying it doesn't bind the district court i'm saying that if the o has the ability in the mean time to cancel the claim to find that yes it is correct this is one of those patterns we never ought to have issued in the first instance and that's true because when we've applied abroad it's reasonable construction approach and  the patent owner has has offered amendments they can't come up with something that is actually out and that's because of their view and then it goes back to the district court in the district court said well thank you very much for your opinion but my job is to give a different  still exists and the district has jurisdiction over the parties in the parties are precluded from from raising those claims it could end up at a different result at the end of the day precisely because of the higher burden of proof in the fact that it has to adopt a saving construction and this is under oath you know would not need to adopt and this is under a statute designed to make the patent system more reasonable and more expeditious in reaching judgments yes and this is something where congress has expressly delegated to the agency the authority to make regulations governing interparty is yes i mean at that point the patent owner can appeal to the federal circuit the federal circuit going to jail what can appeal then and the old the can't the decision that the final written decision of the board is one that will say and if they never issue interrupt it so you're talking about something else you mean appeal to the federal circuit right that that you know he was talking about a patent application yes and also here there is going to be an appeal to the federal circuit of the of the substantive merits of the board's decision that this patent claim is it doesn't satisfy the standard and so not what i was asleep that's i'm sorry what i was asking i think is a different question the reason it's not it's not as if it's an appeal to the district court because the district that's an issue before the district court what is the scope of this patent what does it cover and the patent office is telling you well it covers this in the district courts as thank you i apply a different standard i think it covers this and when that's the case it's a valid that that's correct that could happen but if the claim has alive the loser goes up to the federal circuit in the fertile circuit says this is still a patent they've given it a meaning of the broadest possible meaning and say it's still valid now what happens in the district court what's still alive give a concrete example what's going to happen with in the district court and what can happen in the district in the context of the district court proceeding i agree with the chief justice that the district court may still find some reason to think that if it's not applying the broadest reasonable construction approach that that it's going to end up it a different place and it's not going how as you know went up in a different ball i'm not really not i i've not sure why we think that at the at the margin this can well make a difference but i don't i make a difference for the district court finding the patent in that way then up no i don't expect that it would because the problem here has to do it's the overly broad readings that are going to result in having the patent be declared invalid with respect to prior art is that what exactly they claim construction is could be relevant to other questions about whether it be on the particular product that's at issue in the infringement action or whatever and so appeal ability issue assuming i start from the e e o c the mac mining back mining versus e e o c which we don't easily think that congress is intending to when and when not the p t oh can institute one of these reviews there's all sorts of provisions that say you can only do it under these circumstances and only after making these such a theory why isn't that all of that enough to say there should be some reveal why would congress tell the p t o don't do it except in these limited circumstances but nobody's going to ever watch you to make sure that's what you're doing well i'd say a couple things first of all calling something not an appealable would be a particularly odd way of saying that the only way to get review of this in the federal circuit is through an appeal about them through mandamus and with respect to the question of whether this is just barring review of the decision not to institute a proceeding we think that the contrast with the statute that applies to ex parte re exams is very telling here and this is because in several provisions of the patents act congress has used the same phrase they have called certain decisions by the p t o final and not appealable that's what they did here but they they made that applicable to a much broader category of decisions that had previously taught but in the context of  party re exams in section three zero three c which is reprinted on page one a of the government's brief they've made final and non appealable only the following the determination by the director that no substantial new question of patentability has been raised and so that's a provision in which congress did exactly what my friend says it was trying to do here it said that the only thing that is final and on appeal will is the decision that no new question has been raised and therefore this proceeding will not be instituted so w case your honor is discussing but we think that here the the reading the language that of the scope of what congress is made final and on appeal is the entire decision whether to institute an inner part of review under this section here is not appealable that doesn't necessarily rule out mandamus we don't think that it would make sense to have mandamus only at the end of the proceeding we think that if mandamus were to happen it should be the way it would normally happen at that time when the error the alleged where there'd be expedited briefing where the tab would not have invested all the resources into getting to a decision on the merits before a court pulled it back and said you never should have gotten there so we do think that there may be circumstances that satisfy mandamus where there could be review of the board's departure from statutory criteria but what congress has spoken to here and made on appeal of full is the decision whether to institute proceedings under section that's not just the determination of whether there's a reasonable likelihood it's everything and that section includes references to three eleven two three thirteen it has a reference to a decision under this chapter and so all of that we think is included in the scope of the appeal bar and that distinguishes it from a case like mark mining where the proceeding yes isn't that an appeal from the district court judgment to an administrative agency it's not an appeal from the district court judgment it's a separate proceeding before the agency that has ongoing authority to in light of issues that were revealed for the first time in the district court proceeding and in the losing party in the district court go back to the district court or if it's on appeal to the court of appeals and say district court was wrong said that and i should when they they they could say that if they already have a final judgment then that's not going to be an issue and depending on if that happens has not actually been invalidated then then they're going to still be using the district court claim construction in the judicial litigation thank you counsel which should be you have a minute left thank you mr chief justice the let me just begin by saying that as with the government's brief we heard nothing today that suggests that the use of the ordinary claimed construction would not accomplish congress's purpose but what we would avoid is all of the bizarre harms that are caused by the use of the broadest reasonable interpretation expedient we have different results  demonstrably different results as the chief justice point out many of the cases are cited in our brief where a pattern is upheld in the district court and then invalidated by the board that what can happen if we use the same claim construction as congress intended but having a court like system we wouldn't be depriving paddon owners of their property rights based on pretending the patent means something that it doesn't mean patent it should be taken away only if that patent that's claimed that was granted and that was issued it is unpatentable not just kennedy is why we shouldn't have said i kill ation in i p r their property rights and they should be treated as to what those property rights and qantas putting together the government's position the government says be our right is quote an examination  quote before the patent issues in quote an iterative process quote to promote clarity and precision in claims that is not ip our government the congress in an acting i p r got rid of that