but it is the application in this case the office has denied mr schmidt was right to proceed in front of it to maintain its patent rights that he's still doesn't have all of his to that that what they're doing at that point is just enforcing the rule that you've got to pay for your patent to process and when you don't pay for it regardless of who takes the action and the rule says you don't get your pet michoud right your honor it was paid him and before that if before the ink was dry he had rescinded the money in there is zero that there was no payment and then it was rescinded what the next day seventeen days later the patent fees were allowed to be withdrawn by american express purportedly this is one aspect under the a p a by the way why did portman do th not in the record very good question your honor i have no idea i can only speculate but then don't speculate let's just go forward but under the a p a that action by the office was counter to the evidence against the agency which is one of the reasons like under the motor vehicle association case that's one way in which agency action could be held to be arbitrary capricious or abuses correction when they ask owners of the evidence before the agency how did they act counter to the evidence before the agency all that there is in the record for mr portman is an indication that he was going to do anything he had to to get that patented issue to pay any fees he had to fly to arlington virginia to meet with the petitions examiner to get to get the patent issued and furthermore they never there is no evidence in the record that the patents ever the patent office ever checks their accounting records to determine whether or not the fee that was purportedly returned to american express was actually returned with this into a letter saying that  usually these things assuming even assuming pure rights get cleared out in a more timely fashion because you get this notice and patent office and the some obligation on your part if you're disputing i think i think it is wrong to come in that that was never done correct that is correct your honor and i will submit to you that the notice was inadequate and here's why once the patent issues ok the patent office says it's a big deal but he was given back we gave the guy a chance to correct it there with an explanation that the officers petition position it's equivalent to trying to turn right or wrong it's a it's a post hoc rationalization of their actions but they're expecting then that a patent he has the ability to even enter a power of attorney or draw power of attorney they don't the rules don't talk to this rule i believe it's thirty one hundred power of attorney thirty t saying the point i'm making is that mr surely or was never notified of the notice until then the house so you're saying there was a power of attorney which was good and that was somehow a lot a lot a lot of that they didn't notify the right people is that what you're saying that the forward instead of waiting two years presumably he would have had a patent two i don't know handle in some way maybe could have paid the fees or whatever you needed patent rights it seems to me that that your clients received plenty of opportunity to rectify and try to try to here no your honor not at all might might my point is that the refund that was issued in this case was wrongful but patent office they had no jurisdiction to do so they had no statutory authority to do so and it was against the certainly explain about like why it's not in the record but i can tell you you said it's against their rules what how did they act against their rules that would raise this to a different level  neither of those instances have occurred in this case those fees were not paid by mistake as evidenced by mr portman's repeated references to wanting to make sure this patent if you will he didn't return anything it was withdrawn money my question is how is it not refund it was that it was a transfer of money from the patent office back to someone that it paid the money and authorized i don't twinings the patent office transferred anything it was just withdrawn wasn't it by the operation of the financial institutions that's when that could be your honor i do not i'm not aware of where you said a moment ago they violated their own rules so know to know what rule they violated and sure and i have certainly are on there are specific rules in place by which an inventor may abandon his patent application or withdraw it from the issue after the payment of a maintenance fee neither of those rules are followed rule one thirty eight governs the express abandonment was the fee ever paid here yes your honor it was admitted in both the write a check and then call the bank and say whatever you do don't enforce that check no i paid that know your i think every understanding of commercial paper i have is that isn't payment that's correct your honor the bonus check of on sophie payment by saying clearly services were rendered it's a dispute at this point between as far as i'm concerned american express in the patent office not between my client had those rules explicitly say rule one thirty eight rule three thirteen and the other one for withdraw be explicitly say that a petition must be received under those rules and acted upon prior to the issuance of a pact that makes sense in the case of sampson vs dan from one hundred seventy eight have the patents of that have the right to do it here or no it does your honor because because they never had the money this money was received in this is evidence in the record that this money was received and in the p t o them account and if they have control over then keeping it or whether it was withdrawn that your honor is a question regarding the business interaction between american express the patent office and i don't have i'm not privy to that type of business arrangement that i know it's a question of whether portman withdraw isn't it and that seemed question of the patent offices relation to an inventor to withdraw the fee saw their possession of that fee for a few hours was  please accord the base if you have the money is that in this question or not you still have it is another question that you had at one point is that the end i don't think so it was subject to revocation by an action put into these individuals were actually panties the same reasoning applies mr culture can't come here and unilaterally represent mr schumer to try to get this patent reinstated again we've explained we think it's found application but even if it's a should have gone to the patent office to give us a chance to contest the charge of x the first notice that we got that there was a charge back at all was after the money had been withdrawn from our account at that maybe two thousand one letter and at arbitrary and capricious for us to require those other inventors here as mister gold has pointed out there's a lot we don't know we don't know why dr portman submitted that chargeback we don't know he may have done it at the time on behalf of all the who may have split the charge back when we don't know these answers that's part of the reason we need everybody not just one inventor and if it's you know it could be very telling in this case the fact that the other two inventors are not joining there's no evidence that has tried to contact the other inventors directly or even mr aspin these are the people who would know best what the circumstances of the abandonment were about they know maybe something about dr portman's try to break that might know also something about the invent that's correct that's the that's absolutely correct so what if i will correct one thing in case it becomes important to mr gulfstar said he said specifically in the argument here is the first time i've ever heard him say it or seen it in writing anywhere that mr essman did not tell mr schumer about the notice i have no knowledge as to whether that's true or not but that's not in the record and i feel like the pleadings up until now have avoided taking a position on whether