please the court our though this is not the st appeal to this court from a case in which thirty seven c f or forty one point five p as been applied it is the st appeal in which certain aspects of the procedure have been challenged what i'd like to do is to try to specify exactly what aspects of that procedurally are challenging what the issues and disputes are between the parties what issues are do have disagreement is where the procedure contained in the order contains aspects which are prejudicial to the opponents and the appellant wished to avoid any prejudice fro are not in dispute that remain to something different and reopening prosecution when matters remain are to the court for example because there's intervening legal authority the scope of the remain is limited to that to that  issue for example and this is where section one on one to this is a law which is in flux if there was a patent infringement trial in which there was alice had come down subsequent to trial and  been remanded on the obviousness rejection because there is a new one on one rejection made by the board through no fault of the appellant's it has to be they have to have the opportunity to respond to that new one on one rejection before the examiner under under the good case there's no reason to address the one hundred and three rejection because irrespective of how that is determined we still have to go back on the want to one rejection so under good the appropriate thing to do is to is to address the want to one rejection in the one or three rejection remains in the case and if it concerned that we are being required also to a church who requests we have to affirmatively request the reopening of prosecution ourselves under former rule one hundred and ninety six you don't have to do that you simply would submit your responses to the rejection to the examiner and they would be considered here we have to affirmatively ask the prosecution to be rebuilt and which we don't want to be board's st decision followed the normal course and said you have two options in response to a new grant of rejection one of them is reopening but the other is just filing for rehearing which is what you did so it am i wrong about what the said we requested you can request rehearing the reasons why that option exists because there could be purely legal issues in which there is no reason and you did request rehearing right well we we request reconsideration of the or we did not we did not traverse the want of one rejection in the request for rehearing in fact we in the requests for reconsideration  we specifically indicated that we consented to remain to the examiner but please be very careful because you saying that you want to one rejecting this i'm going on the examiner please state what the abstract idea is under any there's no argument that says we have some evidence that we think we would like to introduce or get the examiner to examine that's relevant to the one  question and if it doesn't say that why is the opportunity for a legal argument taishan on rehearing not perfectly sufficient well because the order was stating preconditions to submitting evidence the order says the we have to submit or evidence to the board and then then after the board considers our evidence which point to borders new issue and if you want to say not for you to decide you do need to say here is a specific kind of factual issue that is relevant to the resolution of the issue and that's not something you can decide but you have to be somewhat concrete about what the point of sending it back to a fact finder is well yes i take your point yes we do have to indicate that i think we have indicated we indicated when we brought this up to the board we indicated that members were likely would like to be able to make  of rejection and you have to request reopen the prosecution in order to address the new grounds a rejection then you get back to it just doesn't say that so we're concerned that if we make the affirmative action of saying we want to withdraw our peel and we open prosecution that's going to be held against us when it comes time for patent term adjustment we could be wrong about that we're not asking the court to make an advisory opinion on that point but that's our examiner meaning that after the board in that order because it was done with the examiner the way this order reads you have to do something more with the board you have to submit to the board your amendment or your evidence the board has to apparently deem to the members appropriate to overcoming the one on one rejection is not exactly clear and then it goes to the examiner so that's our concern is that parent term adjustment is going to be adversely affected and what we want when i get to the relief that we want we want to just be able to make our amendments submitter evidence and that we don't want to have to do that and to to mediate st back judge toronto to your point we should be able to challenge that aspect of the board order without waiving her right to proceed on the merits before the exam or we wanted to challenge the conditions that were being placed upon us by this procedure and the the patent office agrees that lea standard is prejudiced it's on page adjustments we didn't have to talk twenty years from filing patent or so the prejudice is something that wasn't in this case is something that wasn't specifically contemplated but we would nevertheless be prejudiced and that's why i say that we're looking for limited release it can i just ask where in your rehearing petition did you say to them or to the board  the pages if for forty six while appellants consent to abort remain to the examiner for the purposes of considering the one on one rejection the decision does more than merely remained is challenge them to state that and respond and say this is the abstract idea it also addresses the fact that the provide the unless and so the issues of due process an opportunity to respond and i think we can all take notice that the relationship between the applicant and the examiner the give and take of working how has he had nubile is more flexible than by the time you got to the appeal of the board so why wouldn't one can be brought to bear so how did we are after this extraordinarily prolonged prosecution prolonged expensive time consuming taking time on the part of the office was where was the applicant how did we get to this stage after all of these years where a new ground is raised and there is no opportunity to put that ground into the normal decision shit which change the tast her one on one and following the alice decision the board issued a new ground of protection under section one hundred and one finding all of the challenge claims unpalatable under the of examiner to apply if this is a change in law that's a separate question i think it's quite relevant because there had been extensive prosecution o issues where it's irrelevant what happens under one o one so how do we get to this burdensome procedure that could very well be meaningless and challenges the merits of the board's decision with it with arguments but not with any new evidence but with arguments and the board reconsidered those the arguments that that breaks raised and issued can you address that chair so be prejudiced that mr power is are going arguing now st that wasn't raised before the board and that wasn't even race in his opening brief on appeal here he only raised that prejudice issue in his reply brave so it's been waves nd there is no prejudice here because the board considered the arguments that he raised as to the patent ability of the claims and those arguments were addressed in the indicate why we thought we were harmed by this or we did explain the patent term adjustment issues we did address the fact that we opening prosecution in its entirety is for more bur simply agreement on a one on one issue and so we did address those issues and judge still on your question about didn't we waive i'm not sure that we have to in their requests for reconsideration to the board you know whether it would impact your request for patent term adjustment that when we did not raise that in our request for reconsideration again i don't think we have to respectfully and i do think rules that no one can comply with however it looks to me as if whatever were made would not have affected the result with the firm and the examiners rejection merits we think that of course that they should be reversed and we think that's composed on the on the last point about our requests for reconsideration and we're very concerned about that issue because  entirely i understand as to correct result someone doesn't comply but i think the requests for reconsideration that's left in place so that if there are generally issues of law they can be argued and i and there is no there is no requirement at that point that you provide the evidence you want to submit and i tell you we do have evidence that we do want to submit and we probably will make amendments and the other thing that you do is will probably ask the patent to patent office to examine these claims according to the current standard for one on one which is not different than what the board applies here