thank your honor and made it please the court vi court has twice litigated and lost on the key factual question at the center of this appeal and there is no dispute that if the ordinary rules of issue preclusion were to apply then the board because we could have a situation in which there's no categorical rule against it but that may depend on case by case evaluation of the procedures you agree that i doesn't ask for a case by case assess and they ask for a categorical bar but i think that that goes directly to the point that we make in a reply brief about the comparative assessment of the procedures that set forth in the restatement so and it's true there is no as we see from the restatement as well as in the first training school case the opportunity for cross examination is not essential as a general rule so long as there are some opportunities present appropriate evidence and argument to meet the positions presented but nd in this case in particular and the two hundred and ninety dollars appeal is really crucial here even though there was an opportunity for compulsory process in the reexamined self or was able to obtain the deposition of dr  inventor of the key prior art reference and submitted it and by courts position was that dr steigerwald testimony was more credible than dr select the board resolve that dispute over credibility and this court affirmed as finding was supported by matters so this is an argument that if it were available it's been waived but more importantly as the chauffeur's training school case makes clear in every state and makes clear the question is it's a practical assessment of whether that cross examination was crucial for the resolution the relevant fact and they haven't argued that it is and they met our argument from dr select with their argument from dr steigerwald through his deposition so that practical assessment weighs in our favor they don't disagree they don't say that they needed this cross cross examination was unnecessary given the nature of the evidence right correct and in this case the st of the nature of the dispute here is the disclosure of prior art references on their face so you've got a patent and you've got printed printed publications and the question is whether a person or any skill would look at these references and be able to put them together and reach the claimed invention we submitted a declaration they were free to submit their own declaration just as in the show st training school case they were free dismiss their own witnesses with their own expertise now by court chose instead to submit deposition testimony from dr steigerwald but they had every opportunity to meet our expert with an expert of their own they chose not to do so but the availability of that battle of the experts in this case or i should say in the prior proceeding is more than sufficient to render that case fair to render conclusive resolution of fact in that case for this one and again bikers not made any of the arguments about the particulars of this case like or says it is a categorical rule and if there's no categorical rule like or doesn't have a nd line argument along the lines you've suggested so if the court were to conclude that if ever reexamined can give rise to preclude the findings of fact then this is such a case and remember the restatement says it's an assessment of the comparative procedures and opportunities and incentives available across the two forms in this litigating the exact same factual question in the same forum with the same parties subject to the same rules and procedures and submitting essentially the same arguments and evidence at least in this circumstance there's absolutely no chance no reason a rd opportunity to fight a fight that it lost twice before playing by the same rules and that's important it's the playing by the same rule even if there wasn't cross examination in the last case you might say well if there are cross examination here here where you going read exam to read them the procedures opportunities and incentives were exactly the same and even if you thought depositions were generally important in this case invite court case because of the parallel district court proceedings viper was able to obtain exactly the kind of evidence that they say is important they haven't done it identified any other evidence they haven't suggested that a cross examination of dr select would make a difference what they've done is for example point the p t o s brief in the bio delivery case which presented the question whether findings in and resent can be reclusive and i p r but that again underscores exactly our point that's a different question and it's not presented by this case this case presents the very narrow question of whether one reexamined can ever generate findings that are precludes is in a nd and as to that question the p t o said nothing and actually the p t o s arguments underscore the comparative nature of the inquiry another thing about bio delivery is that the p t o pointed to provisions in the america invents act which the p t o said give the director discretion to withhold have congress making clear it wants broad stoffel it makes no sense to withhold the application of the ordinary common law rule time i have if the court were to disagree and conclude that there is a category are on the application of if you're preclusion in the context of raising them we still think that at a at the very least you would have to vacate and remand in light of the fundamental inconsistency across the various proceedings here now we pointed to six in our brief but i want to focus on just one here the twenty nine open proceeding on the same day and may have two thousand and sixteen the same panel with the same offering judge was asked the same question based largely on the same record and came to two conflicting conclusions on that question and didn't say a word to explain why now why court does not defend the inconsistency of those two opinions is that the two thousand and nineteen opinion just talks about claim thirty four which is moot we can't even appeal the issue on the merits but even if you were to consider the analysis in the twenty one thousand opinion it comes up with yet a rd conclusion on the same factual and ninety pound proceeding finding that substantial evidence supported the patent office conclusion that you wouldn't combine stargirl than cobol is because of frequency and compatibility the board didn't say a word about that even though we submitted the decision to them tried to explain it they said we couldn't they didn't say a word about their about face from two thousand and sixteen in this case and they certainly didn't say anything about the other six times that they answered differencing about ability issue so at least on this record at the very least you have to component you're going to get some inductance from the magnetic field but the key point is startled says don't add inductors well that's exactly what having a switching regulator would do the board didn't contend with that it understood this in two thousand and fourteen at appendi clarify the issue think explains why the board reached the conclusion that it did i can once you go on to collateral estoppel in the present case and i think that the case with parties reexamination because we have the statutory provisions which provide for statutory stoffel when both civil litigation and further your parties refinishing proceedings but also the provisions of the therefore if congress wanted it to then it would have to specific plea reached that conclusion which is what it did but to me i don't understand how that says anything about whether it intended  still and i think that's accurate given the picture let me just interrupt you if that's her argument i don't agree with that argument either let's just ignore that statute i don't find that statute to be all that helpful either way on the question of whether administrator of a stockpile should applied to these proceedings and i and i know you want to say that story says there's no presumption but i thought that at least some courts and b b hardware has said that the issue preclusion is available unless it's evident that congress doesn't want it so i don't see how that statutory provision extending  civil action says anything about whether congress did or didn't want a sample to apply in the administrative preceding itself so beyond that statutory argument what argument do you have that we should apply issue or another reason saying no in comparison to another reading them the same procedures would be in place of course but the comparative inquiry that some court has advanced in the reply brief is one that i think comes in at the end of the analysis in other words there is a threshold question that examines only the nature of the you answer them in the context of the proceeding that's being conducted and what types of issues you're trying to be decided in the patent office setting it seems to me has you're asking what one of ordinary skill in the art of thought about  the overall question is that to be proud of other words it's an objective standard not a comparative stand that there can be cases where even if an underlying proceeding is sufficiently adjudicate to the follow on proceeding may offer just sufficiently improved procedure that it would be fair to  really hold and it's not just the ability to cross examine witnesses and the ability to serve process there's also the issue that there's new rules of evidence that apply the ability of the requester to submit protect against and i think that's probably why there's no specific regulation for this in the statutes even though the statutes do i think under a story or even in the tend to regulate the application of preclu sorry i was on my apologies thank your honor a couple points st on the statute briefly congress certainly thought it was doing something remarkable in expanding preclusion to the district court setting because it inactive with that provision a severability clause recognizing the potential constitutional concerns sevenths many concerns due to the differences in procedures so i think it's pretty clear that they were taking a step beyond what they thought would otherwise apply now on the process where i want to focus but they to the district court setting they said we're not going to go all the way we're going to have an exception in light of the fairness issues but i want to turn to process if i may with my last couple minutes just say you heard biker doesn't have a single case saying that cross examination is a sense essential we of essential that's the only case you have right that is correct and that goes straight to the restatement which says it's not essential either unless it's necessary again given the comparison and that's where i want to end is is this point about the comparison  the restatement sections twenty what have you three i think that this is the last concern we have to remember all of those sections are about general preclusion the part of the restatement that addresses administrative reclusion as a sort of special section it's chapter six and chapter six starts with the introductory note about how comparison fits in and it says the very st consideration is procedural and it says the essential issue is a comparison of the quality and pensiveness of the opportunity to litigate et as may be required for the particular case there may be circumstances where it's important have cross examination but this isn't one of them now i'll just close by saying that the supreme court has made clear in the a story a case if i cor cites that a losing litigants deserve no rematch after a defeat fairly suffered vike were lost twice before on the key frequency in compatibility issue in the same forum playing by the same rules we respectfully submit those prior findings are clues of and the decision below should be reversed