soon for purposes of this question if it is possible for you to do so because that mangrove is a properly filed petition or no one else is behind them in that case why couldn't they have proceeded in if i don't agree with you that there's anybody else behind mangrove i think the reason here is simple your honor because apple's involvement was more than just taking a back seat here we really doesn't matter because man group made the same arguments so they had a right to have their arguments resolved by the board you honored they certainly had the right but again what happened here if you look at the record what happened here was after apple was joined to these proceedings as and as this court may recall we actually moved for mandamus right after the proceeding when apple was joined to the matter of proceedings and this court asked us to come back after the final decisions and i think what you're getting to is what prejudice is there to us and we believe we were we were prejudice the normal case when jointer but when you have a time party a party time barred party apple joined the proceedings we believe that the statute does not allow such a party to take over the proceedings and move forward as  rethink these proceedings should be set aside at a minimum what this court should do is it should send it to the board so it can unbind the proceedings that untangle the proceedings because apple's improper improper involvement has tainted the proceedings in ways that cannot be undone ok can we so so you are i think we can i was going to go there next which is that even if you look at the combination which a police want to thank you we don't believe apple or the appeal is when here and the reason is simple the claims require claimed client so what's happening under their mapping is that you have the client side proxy intercepting requests from itself we just think there is no reading of coyote that is supported and then also touts the separateness between  another reason which is if you go to a secure server limitation of the claim that because that's the second issue with respect to the one five one patent the board again the issue but we have here is with the board's decision it's internally inconsistent so if you look  mistake on that i don't see how anyone could conclude otherwise but i don't see how i can reverse and say therefore there is no anticipation simply because the board points out that various things do things doesn't mean there isn't something in there that does all  board's final decision it met the server side proxy to one limitation and the origin server to the other limitation rethink the board in this situation when the decision is internally inconsistent the arguments that were made by the parties the board me that mistake on it own so why would we send it back to the board to address the arguments made by the party so to the extent we believe that the petitioners here lead the board to that error and they should be they should limit those consequences again at a minimum you should rem parties both parties were disputing the construction and second no reasonable you're right please go ahead in the end it's it seems to me in the opinion they just misunderstood the argument that  asking us to make a fact finding out of he'll we don't do that you don't get a reversal of this and i think it's really a reach to keep beating us over the head trying to ask for one this is your weakest argument to me the best argument you have on client is that the board's opinion is confusing it's not clear whether it was relying on user agent client side proxy or both for the client that's your best argument that it's confusing because it's not clear to me what they were doing but that doesn't give you a reversal so just stop asking for it fair enough your honor at a minimum  specter the limitation and then finally it's we go to the one thirty five and the ten forty six proceeding just for fun i think that's what you were thinking of the four issues that's the fourth marriage issue that we have here today again they are we believe the board one opinion the previous just record appeal that's what apple argued for and here there and i think we understand that was that there are these claims as presented by frenetic sir are very broad and there were two possible mappings that we presented either of which is sufficient for anticipation the board went through those at the beginning of its opinion said future discloses them and then the client side proxy can't intercept a message or a request that's been sent by the clients or proxy that is doubly waved that was not made to the board and it's not in the blue brief it comes up for the first time on page one of the reply brief and it was the only argument mr modi offered this morning for the d s proxy module under the correct mapping and i think there's no question that the board considered i relied on the combination mapping that we put forward and the idea as presented in the briefs that we didn't hear at the morning that for medics didn't have an opportunity to just start with secure server does the board not alternatively recur to the origin server and the server side proxy is performing the various functions of the secure server under the claim it does judge moore and that's because we argue that either a single device to perform multiple functions that there can be anticipation when the reference has different devices performing those functions not if the claim actually requires that it be a single device but that e as as claimed performs the four claimed steps and one of them is setting up a in claim thirteen which is the only claim at issue in the litigation now a secure channel between a client a secure server and we argued that the secure server in it of could be could map either to the origin server in p g or to the server side proxy and there is no dispute that either of those can do that this is a form o found it sometimes it says the origin server does it and other times they say the server side proxy does things and they alternate in a confusing way on the opinion which makes it unclear to leave reste whether there is in their view a uncomfortable replacing board fact findings with my view of the fact i don't think the board is forbidden from making alternative findings as long as and nor is this court forbidden from affirming one alternative finding as long as it's supported by substantial not apply to a request for joined and the point you're correct is a request for joint or the same thing as a petition and the statute well i think that at most the the arguments that have been put before the court show there may be some ambiguity on that point and if there's ambiguity on that point the tiebreaker is chevron assumption of legal determination in your honor the question of the timeliness of a jointer order petition is a key procedural point this isn't of this doesn't go to the patent ability of any claim you think this is basically just to be clear you think statutes of limitations are not substantive if you think those are just petition because a motion for a jointer is separate from a petition according to the statute they separately talk about them throughout the statute what they've they are they are discussed but the last sentence of three fifteen be specifically says that the a request to join to properly filed petitions beyond the one year period of time that's the one your creative time is not meant to affect your ability to file of request for a jointer it's only meant to affect your ability to file a petition why isn't that the most reasonable plain language reading of the statute because that would make the second sentence a nullity because the first sentence already makes clear that the one year time limitation only in its regulations which is that it be filed within a month after the decision institution which apple plainly complied with and the question of whether there's a separate application of a one year time bar in the case where apple filed both of them within the time period required for joint or that's something we think is addressed by the second sentence of three fifteen b which is it doesn't apply to about two or two requests for joint or including the petition that's filed with it and i think the most together to perhaps you you said earlier that perhaps there are two reasonable interpretations section three fifteen and you said and therefore if there is we should give chevron deference to the treaty of interpretation is that right i don't think their interpretation is reasonable but if the court thinks it's plainly will that you're just but you really you really think you can stand there and say this other interpretation is not reasonable you as a person as divorced from you as the litigator for apple at the moment because it's really surprising to me that you could say their interpretation is not reasonable because you know it's it's quite frankly my interpretation so it's surprising to me that you would stand here and tell me that you personally do not believe that it's at all reason i obviously don't mean to suggest you're on the right you are being unreasonable if that is your view of until then i think ultimately it is the colloquy that your honour's had with my colleague which is that there is no hope no harm here and no remedy that this court would impose that would be meaningful c and i think you might be on to something here and let me spin it out for you this what about there may well be cases in which there's prejudice for examples posed to petitions were not limited to the same issues and that the board ultimately concluded that apple issues are the ones that ought to prevail in the petition and they either don't address the mangrove issues or don't agree with them then we would potentially have prejudice right i think you could well be right and so maybe the answer could be in a very narrow way that we don't have to reach whether apple was properly joined in this case under the statute because we have two identical petitions in the board had an obligation to resolve mangroves petition either way and so we just treated it half as having done that in the us there's no prejudice i think did i don't think a remained on this basis would serve any purpose because as judge moore's question or proposal suggested the reman would simply be even if you took apple out of the proceeding entirely board please decide this case based on mangroves petition and mang evidence and mangroves arguments that you have already determined as a board are sufficient to carry the but i'm sorry i think you misunderstand i believe that judge priest question may have meant to suggest what if we don't agree with you on for example the secure server or the client or any one of those other issues and if any of them require vacating and reminding when the merits to what extent if we don't reach this joinder issue to what extent does apple participate because if we don't agree with you on the merits it has to go back and so we probably have to set parameters as to whether a well apple is allowed to participate if it goes back you see i see i do understand the import of the question and i think if it were the additional issues it couldn't engage in any further discovery it would be up to mangrove to decide which attorneys presented at the hearing and it wasn't just apple's attorney mangroves attorney present as you know what if we think the board's opinion is that a minimum in comprehensible in certain places separation and what if we need to send it back and tell the board either clarify your opinion or go ahead and reach obviousness see the problem for me is what happens with apple if we do that if we're not going to reach the jointer issue if if we don't reach a jointer then theoretically we're just punching kicking the can down the road so that because you guys with can you represent apple you continue to participate in i p r at that point if we don't bar you from doing so and say the statute bars you from doing so and it comes back up in the next  is i think as the as your question indicated has there been some substantive change in the nature of the arguments or the evidence that the board reliance on through the jointer present process and the answer is clearly no the board was very careful to manage this proceeding so that apple's participation did not work any cognizable unfair prejudice to burnett so they don't do that all the time there by how brief was excellent pointing out lots of examples where the board has gone a lot further in other cases than they've gone more case in terms of allowing people to be combined with themselves when they were untimely raising new arguments and then joining the new arguments the by a brief articulated important us to a number of different cases that had a number of scenarios that went much further than your words in terms of would this creep those scenarios would in fact create prejudice so the problem is if i have to decide the joinder issue i'm not just deciding it for your case where the board actually limited you to mangroves issues i'm deciding it for all cases including the ones where the board didn't limit joinder of only identical issues where it allowed new issues new parties that sure are untimely to raise new issues join them in and then force the patentee to deal with all the issues even the ones not raised by the only timely filed petition so what do i do about that i could vision your honor writing an opinion that says we do not need to run to decide the merits of the jointer challenge because even if for next week correct there has been no harm because the board was careful to manage these proceedings so that apple's participation did not work any unfair prejudice and so we leave the jointer question for in the end in this case i just want make sure i understand the facts did and i think i do did apple utilize its involvement in this petition to go inside p r proceeding to go back and try to ask the district court for example for a stay i know the answer is no  but i just want to discuss it with you to make sure i'm not overlooking any potential prejudice to a patentee if i do what you're suggesting because it's creative and i like creative but but i want to make sure because for example you do know of course that if been instituted in your involved in it you can ask the district court for a stay of a parallel litigation that's not the kind of thing that's occurred here because that kind of gamesmanship could be a basis on which they could say there's prejudice to well apple be involved in this petition because they're using it to thwart the district court case i mean there were requests for stay but they didn't turn on apple's participation in the proceeding a request for a stay based on the fact that the board has invalidated claims at issue in litigation but those statement just weren't granted no no there was no now there is no even arguable prejudice because they tried to maybe maybe apple tried to use the petition as a basis but it didn't result in a stay and all efforts to stay either the trial that's on appeal in the third  any district courts have stayed district court litigation simply because a patent ends up in an i p r if it's not one of if it's not the party that's in litigation are you aware of ice i must confess i haven't researched that question but you know and there are also reexamined on these patents that have been states of a number of different other proceedings going on my concern about your letter as you can tell is about prejudice of course now there's no prejudice in this case because the p t o is limited i just want to make sure there's no ancillary or tangential prejudice there is not for the simple reason  i must confess i'm not i don't know what the board has said in other cases it's possible that it has said that and if that is really good that you but if that is problematic then those can be addressed in those cases which are not before the court at this point the regulation doesn't speak to that right this case the statute the step the purpose behind jointer is to prevent untimely people from getting to participate it's not to prevent issues from being heard by the p t o because anyone else can bring the issues that the purpose behind jointer the one year time bar i should say is to prevent people who had an interest who had knowledge from not who didn't but who chose not to come forward in a timely fashion to prevent them from getting the benefit of  what about this statute lead you to believe i will tell you i think there is nothing in the statute anywhere that gives me even the slightest concern that congress thought jointer couldn't occur with different issues i see nothing that prevents the p t o from joining two petitions that have totally different issues in them if it so chooses do you see anything in the statute that gives congressional intent type idea anything in the statute anywhere that suggests jointer can only occur when the issues are the same so we've come a long way from this case but to answer your question no i don't think so i think that the the goal of or one of the goals of the statute at the very least was to allow the of the board to take a second look  revisit issue that this is a in court said and in cuozzo and anything that allows the board to do that in the way that in its discretion of thinks is most effective through joint or is appropriate i think it's important to remember also on the on the other beginning of the question which talked about the  one year time are being to prevent certain parties from being able to file at all that is not a goal that is pursued at all costs and when the p t o filed its brief in the related mandamus docket before briefing in this appeal began which is number sixteen dash one one nine one year to pass a petition the other says it does not apply to requests for jointer and in terms of putting them together what the p t o explains which i think is correct is that the policy of making of not allowing time barred parties to participate in these proceedings gives way when the patent in question is already the subject of an ongoing i p r and that was the only thing i was trying to get to that is what the p t o is talking about in its brief to this court in the mandamus case i think it's correct and that's how you reconcile  in all this new stuff i don't think it necessarily effects that situation but it's not the situation we have here and there we just shows that there's not that situation you mean under your interpretation of the statute i want to be very clear under your interpretation of the statute the joint party could bring in totally separate prior are totally separate arguments that were not raised in the timely filed petition and that those arguments could under the p t s authority be joined to the properly fall the titian and could form the entire basis for the resolution of the i p r that's the way the p t o went under the statute that is your view of three fifteen i think if you ask me as an academic question i think that probably is the right interpretation of the statue and it's at the very least a reasonable interpretation that same the same arguments well then the idea is to make sure there aren't any serial challenges like the there's a challenge by a timely party and then a separate challenge by an untimely party that exposes the patentee to multiple different proceedings but it gives the board th discretion some mandatory the board wasn't required to join apple here but it gives them the discretion to join in multiple proceedings into one so it has the benefit of all the arguments it seems to me that after a point in time in the party turned upon him hard can find a way back into the appreciating and that's what gives me a little bit of pause for your argument especially the argument that you can come in and bring a whole new issue i think this is the this is there is there are reasonable policy arguments on both sides i would say i don't think either either one is rendered i don't need to argue that dramatics is argument or the policy or going your own articulate is unreasonable i think that's what a what an agency which is tasked with making regulations expressly by congress under this provision is entitle to decide and there is no argument on frenetic side under chevron step two that the rule of the p t o promulgated is somehow an unreasonable choice for an agency to make interpret three fifteen be sure because if we interpret three fifteen b as saying you can join outside of the one year period you can file a request for joint or that a request for jointer is not limited to the one year period the same way the filing even though it's the pandora's box i hate saying that out loud i hate even using those words it's stupid but but it is because all of those other things that we just talked about about to enter on the table there are no limitations placed on the p t o regarding the issues that can be allowed to be joined together so the problem becomes if your reading is the correct reading of the statute then the p t o has discretion to join in whole new issues that we should be time rd by virtue three fifteen b but aren't because suddenly there is a request for joint or and those new issues are the ones that could resolve the whole case and i just i just don't understand what the point of three fifteen these first sentences any longer if that can occur so i think that that's why i was offering your honor the opportunity to not answer the question and i could say that yes it was done in this case maybe there might be an easy reason why this is absolutely wrong but just thinking o is there a way to argue that the issue that is not present in this case about other issues being brought in by the time the joint petition or that would that would be tested under the abuse of discretion and c i mean all of this jointer it this is the ability of the director to at his discretion determine whether or not to join is it hard is it conceivable that maybe really issues but certainly if it implicated a time bar under the court's decision in life i won i think it probably would be reviewable but again that's not an argument they've made they just to be clear that based on everything you said to me before about your understanding the statute you wouldn't agree that it could be a challenge that way would you because you would see this i think it's actually the same way i see no indication that congress intended to put a subject matter limitation on one of the p t o is ability to join  titions related to the same patent do you see anything in the statute you know anywhere in answering your question academically judge moore no i don't see anything i was just i was assuming so the credit of the drug research tended no limit on the issues that could be brought and there appear to be none in here and there's lots of good reasons to think there should be none p t o s argument policy based argument you raised for me and the idea that congress intended i p r scared about patents i can think of no policy things articulated by congress and the adoption of the a a which would justify such a limit so it's hard for me to imagine under what authority we could conclude that's an abuse of discretion do you have any thoughts on how we could get there well i i assume that if there were to be the kind of review the chief judge process was  hypothesizing assuming there's jurisdiction to do it there would be some kind of analysis as to what factors the board had considered what the level of prejudice to the patentee actually was and if it was truly you know of a level where this court thought there should be some kind of remed thank you thank you ron as i like to like to start with the issue of prejudice i think this court does need to address the three fifteen b issue here even if there is a rematch the reason is simple judge moore i think one of the things that is critical here is apple actually submitted but i think it is the three fifteen b n three fifteen c you want to re believe apple is time barred party cannot join new issues the proceedings and going to the night a case that my colleague mentioned the night a case actually i think helps us not that they are the statu we have is as the court pointed in the night that this was a concurrence the court said where there are new issues raised which was the case here joined or very well would be time but and we think it is time barred here for that very same reason in just a little bit so the court has a cite for the or who petition has been rejected can publicly advertise and say here's my here's a petition that you can file and then apple could try to join the proceeding and take over a party like apple could join and take over that proceeding we think this court needs to stop at eighty six eighty seven the border lied on the name server as as we've discussed and the combination argument we did discuss down before the board and that's at eight thirty four sixty seven so for all these reasons we think the board's decision should be set aside on this the court