exploded i'd like to begin this morning by expressing our appreciation on behalf of the client to the court for raising the jurisdictional issue as we believe that is dispositive of this case why didn't you raise it the decision came out right around the time you filed your liberty and you had almost a year is how to reply brief and then time after that to another part of it as of the case and you didn't it's a fair manner and something that in hindsight we wish that we would have done decided that issue in the political case as well as i don't think that we decided that at all because it wasn't implicated on whether was a jurisdictional bar or not because it was directly race there there was no waiver question does that make sense even though the word jurisdiction was used in quick call it doesn't necessarily mean in a week this court considered to grapple with the idea of whether that statute of limitations is in fact a jurisdiction l limit that could not be waived and there's a number of supreme court decisions that talk about whether statutes that talk about some time bars are  so it's not a clear cut determinations not clear cut already are determined by this court and it's jurisdictional so the question is whether you have any additional arguments or thoughts for us today on whether it's that's a great question thank your honor we believe that it is a jurisdictional issue we believe it's a gating of bands and that as a result it's not something that can be waived especially at the time in question we believe that the the discord and the peter was adopting an interpretation of the three hundred and fifteen b rule that it was directed to cases that had not been dismissed without prejudice and when this court decided that issue  addressed the three hundred and fifteen dollars issue are you familiar with the supreme court opinion city of arlington texas vs f c c came out about five years ago i'm not here on ok what about hamilton beach that's a decision by our court where we held that there was no cross appeal that had been filed on the three hundred and fifteen b issue and that therefore the court didn't have to address i think that the hamilton beach decision can be distinguished from our current case and that in the hamilton beach decision the patent owner didn't challenge the court's decision were affirmed or upheld the for a litany of its because the p tab ruled in favor of the pack owner in that case and then the cross appeal was even if you think there's something wrong with the board's decision and we think that they should not have been instituting a right i believe that is the question i don't understand the distinction let me try this a little bit differently in the when it comes to the courts and court jurisdiction we've courts have always said that's a threshold issue and then you have to address that before anything else and so just playing with the logic of what happened in mass hamilton i don't see how the court in mass hamilton could have just refused to address  the jurist what you call the jurisdictional question the time bar rule by simply saying well you need to file across appeal for that if it's truly a jurisdictional question and that would have to be the very  issue addressed and confronted by the court rather than the court refusing to address it isn't that right again i'm not familiar with that that case your honor so i'm unable to specifically address the question but with a jurisdictional question as you claim it is then and hamilton this court would have needed to address that issue once it was raised by anybody or it would have had to address it so as ponting as well it certainly would have not been permitted to ignore the question under any circumstances regardless of whether it one could argue that it might be best to present it in a cross appeal versus  just keeping it in the red brief if it's a truly truly jurisdictional question and there was there would be no way for the court to escape addressing it isn't that right i believe and again i'm i may be misreading  the case but it's my understanding that the pap did not file across appeal and also as a result did not have standing to raise just that or because that's a different question you know if it was truly jurisdictional they didn't need to file across appeal because of the court always has a responsibility to address its jurisdiction in the underlying tribunal jurisdiction so whether there was a cross appeal or not if it's a jurisdictional question we got it here or if it's not a jurisdictional question in the failure to preserve it in across a field doesn't that so the it clear implication of that case is it wasn't jurisdictional because and because it wasn't and there was no cross appeal we didn't d hear it why shouldn't we follow that reasoning here from our perspective your honor let me ask you this the supreme court has made pretty clear in the last decade or two that claims processing rules d d timing rules it in a jurisdiction statement or making some other kind of statement that it's to be considered jurisdictional and not just a time to file suit why we're in this statute does it make it clear the intrinsic evidence both in terms of the disclosure within the specification that identified the ability to turn and maneuver on the upwardly extending sign will as a fundamental essence of the invention so that one can transition from one side of all of the activity section across the middle section and on to the nd sidewall of the activity section and we also believe that the board ignored clear prosecution history that was at all odds with the a construction that was adopted by the board where during the prosecution of the application the applicant amended claims to distinguish the one i was seven pound that was directed to a contain and i trust that answer your and so we believe that the the board ignoring both the ample disclosure contained within the specification and the prosecution history where the applicant as the essence of the invention and the construction that was adopted by the board read out and they express leave knowledge that in their final written decision and in so doing they allowed you're talking about whether the side walls have to be substantial code substantially upwardly so that from an agile so that you agree that most of the issues that you're asking is tribune on the merits are reviewed for substantial evidence i understand you have a claim construction argument but i really see your appeal is really talking about whether the prior art includes the claim limitations and that it's a substantial evidence case to groups and i don't your honor i actually think that this is a but we believe that the board got it wrong in its claim construction is at odds with well established law that you can't construe claim to invalidate the claim and the construction that the board of dop did reads on the prior art it reads right on the one of seven as we show  determinations that the board made is that correct it is your honor and here and i one of the question i had is what is the impact of this appeal on the related district court it's significant in two respects one is time bar should be interpreted as non jury stiction all or at least that analysis certainly was not done and click to call it or point it out and looking at the statute itself there's nothing to suggest that the time bar in this particular instance  rises above the high bar that would overcome the general rule that such time bars should be treated as non tourist if an agency takes an action that is clearly outside of the statutory powers that was granted by congress and isn't it exercising powers outside of its jurisdiction well there's a separate question of if the agency is acting in violation of constitutional due process or instituted the inner party's review on a one dollar to one dollar grounds for example but then did not rule on that grounds or did not carry that through to the final written decision then theoretically or at least based on the language of the statu which seems clear that should be on appeal and it wouldn't be a defect in the institution decision that would then negate the final written decision and let me see if i understand if if in an  argue anything about this being ultraviolet rays or exceeding the powers granted by congress for the board to do we you're saying that's a waved issue i a time bar to claims raised in the veterans court and in that decision this court recognized the general rule that generally speaking the court doesn't have to a spontaneous already to that the time bar statute like the one here is not viewed as jurisdictional unless the statutory language is very clear about making it jurisdictional and it doesn't matter how how harshly the time bar is worded  about an agency's authority in that traditional jurisdictional sense isn't the quite quite the right way to go about this did you find any precedent that talks about how time bars are to be considered in an agency context and will admit that i did not find one that doesn't mean that there isn't one out there given that this issue was raised relatively late in the appeal process i would note that in other circumstances for example in sikorsky versus u statute that statutory bar time bar related to government agency raising claims against a government contractor and the time in which it could do that so i think one wrinkle here is that while this is a bar on an agency action of instituting the inner parties review the portion of the agency that is being dealt with is akin to a lower court in that it is it's conducting statute or the tabs and regulations allow the joining a time bar party to a proceeding that has been properly instituted by a party that's not time it seems to me that if  statutory language directly except that type of situation from the normal time bar so i wouldn't ordinarily i would say yes if the time bar was cut and dry then there would be nothing to join but the statute right and it is a more nuanced decision than simply looking at what the date of filing of service of the complaint was in the data filing of the p r so there is an actual determination to be made there so i agree that that does suggest that it is not jurisdictional and that there are that there is a determination made by the board as part of the institution decision now that goes to the the petitioner sure when so if if those are the only questions on that issue i'll move to the waiver and substantive issues and i think the court hit it on the head most of these issues are interpretation doesn't bank mean that the board's interpretation is subject to appellate review it doesn't really matter whether it was raised or not right certainly the board did conduct a claim construction two times at the decision stage and at the final written decision stage there are two different claim constructions in those decisions and the court certainly can review those claims constructions however where cerf leaves us asking for a new constructions or new terms to be construed those arguments are waived and that's relatively clear from interactive gift express which even surf waves sites to well sort of waves just told us that they argued about the prosecution history here for this patent as informing the particular understanding of these claims and was talking about the difference between a container less was distinguished during the prosecution history necessarily has to exclude the sort of prior art here two things about that your honor st the argument that the board's construction was inconsistent with the prosecution history  wasn't raised at least as our as far as we can tell until the reply brief in this appeal when we raise the waiver argument but the nd thing is to the extent that that argument is raised in the reply brief side by side comparison they're doing is inaccurate it is an inaccurate portrayal of what the argument was during the prosecution history in the prosecution history and i'll turn to the one hundred and seven patent the portion of the one  container list ride that has down sloping side walls and obviously the distinction of adding language that says that the claimed invention of the sixteen patent as side walls that are cur financially upward well that would distinguish from downward sloping side and that was the point that was being made in the prosecution history nothing about traverse ability and in fact if you look at figure four see for example that shows a rider traversing the downward sloping sidewalk so traverse ability itself is not the distinction that was being made during prosecution it was whether the side wall was up or down so the the crux of the argument there had nothing to do with traverse ability and to suggest that now there is some mapping of the claims on to the one of the seven patent eight that there is no evidence to make that mapping so for example their expert declarant never suggested that under the board's claim construction or any other claim construction the claims were now being read on to one of seven patent so all of that is is really no attorney argument and it wasn't and again it wasn't made before the patent for the so they didn't get a chance to respond to it nor did we during the  proceeding itself so it shouldn't be considered by this  court i think those are the only arguments i have if there are any other questions i'm obviously here to answer them prosecution history is a fun is such a fundamental component of claim instruction that even if there's a dispute as to whether a party has raised any claim construction arguments based on the prosecution history the court should consider such arguments in its appeal we also identified the one of seven not by name but it generally referring to the prosecution history in the claim construction briefing that was filed in the district court case with reasonable doubt in your we we reference generally the prosecution history but not specifically to one of them so this particular argument you're making now about what happened during the prosecution history happened in terms of distinguishing the one  patent and thereby that informing how we should understand the claims here and you didn't actually make that argument in your pattern of response in this i p r i am saying that it fair to say i don't think we specifically call it the one hundred and seven in our donor's response or your honor but we do specifically reference the essence of the invention being traversed ability and that this is the language of the prosecution history that requires that included the addition to overcome and get to the claim allowed but i don't think we specifically call at one o seven no but i don't you talk about the language that was added in that prosecution history to get the claim allowed you're talking about  upward right correct nothing having to do with traverse ability right correct but we do we do in the patent owners response civically say the traverse ability is the absence of the invention that's contained within the disclosure and in order for the it how would the board know that you were referencing that when you talk about that item well anyway it doesn't matter but i just don't know how the board was going to know that you were relying on that prosecution history and let alone the prosecution history of the claim language and let alone a particular statement on a page a prosecution history the prosecution history was of record of for the board and they were on notice we also made all of these organs in the district court case and those briefs were included by my pacific surface imes and its petition to to institute the i p r and so they were also of record and you're out of