chuck and denying dr chung a motion for summary judgment and granting the p t o s motion for summary judgment the district court erred for at least two reasons and should be reversed st under the sea delay portion of the patent term erred in finding reasonable the p t o s regulations and decisions on this point nd the text of the sea delay portion of the steps you provide for providing quote a decision in the review reversing an adverse determination of patentability and quote is not limited to a decision of the p t instead the language and compass is a decision of the examiner to reopen prosecution after a notice of appeal is filed the u s p as been hanging over my thinking about this case why is there not be delayed not the delay but why is there not be delay for the six hundred and fifty five dollars days that are at issue says at least in many circumstances those days now trimmed out of sea delay will be available and be delayed and i'm actually interested in both parties views about why the is that the delays exclude time consumed by a continued examination of the application and this case prior to the final rejection from which  to two and one of three rejections dropped the one to rejection entirely brought up new references from one of three introduced new one hundred and twelve dollars ten cents rejections that were not previously made then the subject at each notice of appeal and then a th reopening dropping the one on one rejection so in each case we have a examiner reversing her decision and that was within the review under the statute because the the review is pending when the notice of appeal is filed in the language that just just to be clear i mean you  to find error on two grounds on the ground that the only permitted to reverse or is the board under th e seat delay provision and also that a review was underway even before as a regulatory matter the board's jurisdiction attached  notice of appeal so those are the two things the two places where the district court and the p t o air that we believe clearly the statute provides contrary so yes me those two areas need to be corrected o s position that the see delays beginning later at the reply brief rather than at the notice of appeal is contrary to the fundamental purpose of the statute as this court recognize another provision and suburban and where the court said the us p t o s interpretation of the statute unfairly penalizes applicants and went on to say that it fails to protect applicants full patent term as i mentioned earlier the the back and forth for reopening in this case spanned a period of about three and a half years and the amount of time that we think should be available from from the notices of appeals to the reopening zenaida case is seven hundred and fifty three dollars days and that is a that is a substantial amount of time and you know the process of going back and forth many  times you know that that's not something that would be acceptable in this court and if the you know if the applicants are required to be subjected to a centrally and almost unending changing of position when the applicant wants to undertake an appeal at least they should be compensated as congress intended by the wrist restoration days that were consumed in that time when all of that time was was not caused by dr chuck it was it was entirely caused by by the by the patent office so and just just to be clear about this and why and all of the time that's in dispute would you think actually be excluded from be delayed because it was quote consumed by continued examination been you know the issue about you know whether it's here or there the statute contemplates that there might be some overlap between essentially a b or c delays if you look at b two it talks about well if there's any limitation if there's any overlap at least you know the period shall not exceed the actual numbers of delays of the issuance of the path so congress ought to you know address the issue of you know overlaps if there are any and that it's because congress has already addressed the issue delays might be added because congress you know provided a way to resolve that in the district court of the district court that quote the actual process of that the review in the statute could refer when the briefing is complete but the delays under the patent term adjustments after for delays there further delays whether we're waiting for a decision whether the the p tab is actually working on it or for other reasons you know the fall of the beginning of the review period that starts on the notice of appeal and my time has gotten to the end so i will reserve the balance for the thank you thank you delay if you can put that out of your mind for a minute can you help me understand why the delay would not be available here and then there's a natural follow up to that which is there seems to be an extensive period of a restriction on the certainly your honor the answer to your question of why there is no need to lie in this particular case is because by statute the time following a request for continu compensated with additional speedily however in this case mr tewfik made the choice to file an r c n said and again by statute and this court's precedents that mandate that whatever time is spent and continue examination i just i'm not familiar enough with the details of continued examinations to understand why why that would make sense since it leaves you indicated that i think that the delay would have been available had the appeal been taken from the final office action and no requests for continued examination been filed so what is what did the request for interpreting that statute that that additional time chan not compensate him here in the form of be that way in terms of the plain language in the context of the statute we've i think explain the taking of an appeal and so because congress decided to use the steam to language in the see the light provision that says that x rays appellate review as opposed to taking an appeal that has just that distinction has to mean something inconsistent with the purpose of the statute again i reiterate that the purpose of the statute is to compensate applicants for certain types of a numerated p t o delays it's not just any and all in response to comments that doing so would give apple can speak opportunity to receive additional beadle i put the time between the notice of appeal under stiction passing to the p tab like an applicant can still be compensated for this time in the form of  dr chuck does challenge the the regulations i mean that's the point that the regulations are out of line with the clear statute the the the issue about whether an examiners  reopening of the prosecution where the examiner reverses herself which you did in four instances in this case was a position that the u s p t o itself proposed and the federal register where they said often that reveals a weakness in the adverse patentability determination from which the appeal was taken and so in that federal register into two thousand and twelve the admission that a reopening could qualify as a decision in the review reversing an adverse determination of patentability you know it uses the statutory language and it just basically describes the examiner reversing herself so the u s p t o had completely agreed with the doctor gianna keir it subsequently erred by not following through with that but nevertheless to say that you know it could only be limited to the decisions you know when itself proposed the contrary in the federal register it just it can't succeed in that the proposed other thing is that the proposal was not take it adopted it  was died after having been proposed i am not sure how much force you get from a proposal that was not ultimately promulgated as a wrongly rejected so the other issue i'd like to address is that the council has suggested that the language review in the c delay portion mean something delay language where it says the term of the patent shall be extended one day for each day of the penalty the proceeding review i mean order or review to work to use the word appeal taken in that sequence  i think would be difficult i don't think there's any congressional indication that some shorter period should be provided in one or the other circumstance here so i don't think the significance can attach to the to the words appeal taken st says or prove you see the other issue that counsel raised is that the exe the examiner cannot reverse herself and that i think that's just not the case as we can see from the examiners actions in this case and other circumstances for example a judge could reverse herself without a higher authority such as through a motion to reconsider or or other means so when they ask what the examiner did here to reverse herself four times clearly fits within the language of the statute and there's no qualification on who is reversing the decision making the decision if congress thought so limited they could have specified a decision by the p tab or by a federal court as the case may be in the review but come did not provide that congress ought to have a broad basis for allowing allowing time when there's a centrally a favorable outcome after the appeals started and that's essentially what the the language there provide see my time is up and we request reversal thank you thank you to both counsel the case is submitted and that concludes the arguments session for this morning