challenges on appeal the real ability issue seems to me to be the harder issue i think you've got a pretty good argument about the statute of limitations but under aristocrat this is a defen points on that i think if anything aristocrat instructed us to bring in a ph challenge our opponents don't cite a single case in which a court hands up a decision where there is actually no review including this supreme court case block i guess of this that says that sometimes some parties are not able to challenge non compliance with the statute if the statute as a whole indicates that they're not supposed to be able to do that and i wonder whether maybe this isn't one of those statutes which were close the ability of an injured party to challenge a particular action and what's the answer and i think the answer is at least two points with respect to black i think you have to read black look at the facts of life and compare it to what happened in stark versus whether because both cases are dealing with the exact same statute which is the agricultural market agreement act which is the new deal act and in start the court held that there was review and in that instance it was dropped by the producers of the handlers of milk and then block what the court held was that the consumers could not challenge it but another key distinction between those cases is that and block that consumers were challenging the two things that consumers were challenging basically the merits of these milk orders so they were trying to dispute the proprietary action with respect to whether the milk orders were the correct decision and so they were getting into the area of agency expertise or agency discretion when you look at what happened in stark there was really a challenge to the authority of the agency the u s d a to make a decision under the governing statute that's one distinction the second distinction also noted and block is that block recognized that there was an alternative remedy or  avenue for a party to dispute the action that was being challenged and blocked and if you look at the details and block when that case was first filed not only with consumers a plaintiff there was also a milk handler that was a plaintiff he was later dismissed and the reason he was dismissed was because he did not exhaust is in administrative remedies and so there is a clear path for a party to challenge a particular decision but more importantly and this gets back to our case and sinks in our case we're not trying to challenge like the party did in previous the patentability issues one two one two three one to one twelve we're not trying to challenge the p t o s decision making when it gets into the area of agency expertise or whether it gets into an issue of discretion by the people you know and that and that happened in syntax for example but now what we're trying to do and what we think we have good support for in ethicon for example is we're basically saying that the nation and they're the party that if the congress has already dropped the unavoidable standard out of the statute kind of sustaining the p heels discretion why wouldn't we sustain their discretion as well if anything that reinforces the idea that the p t o was limited to the standards in three seventy one d that congress set forth and only now and then the case in that it's really just ministerial housekeeping a single case where a challenge based on ultra vires conduct can be can be characterized as discretion on the part of the agency and the third point really gets to the fact that this is get the separation of powers issues and there is no basis for the p t o to ignore the strict standards that congress set forth in three seventy one  another question you're familiar with section forty one of the statute as i am judge didn't look at forty one c two which is titled effect of the rights of others which deals with the effect of a late payment of  payment of the fee in connection with this international application what am i to make of that well that i think when section forty one one that gets to the merits of understand but it matters not just the merits because it also tend to tells us what congress thought here whether it was intending to give rights to third parties to challenge the revival where there's a late payment a fee i mean there's a specific provisions in here dealing with another early payment provision which seems to say ok sometimes you get it right sometimes there's no provision like that here with respect to international applications what am i supposed to make of what i think the proper interpretation of that is you have to go back and go back to the basic principles what happens when a party abandons a patent application that's subject matter becomes part of the public domain and congress didn't speak to the specific issue with respect to the pin fees and where there's intervening rights but what it did say and what it does say that that's already that individual that patent african can only regained those rights if they satisfy the high standard three absent that that subject matter remains in the public domain and i think that gets to another point as to why this decision is more is much more than a minute ministerial decision a actions to to challenge this revival decisions instead of making it a defense to infringement it just doesn't seem to make any sense doesn't it so you question why this should be an a p a challenge versus the defense i mean we've i think generally you're right most challenges to patent validity go through the standard patents for frenchmen actions but again look at what happened in africa at the con with a clear a p a challenge to the authority of the p t o to suspend or a nation and also in the bigger scheme of a p a actions we cited two cases big movie ranch area and north county community alliance both of those cases although they don't deal with patent rights they deal with property action so if there were if there were no question of authority but only of correctness are you saying that there would not be an a p a opportunity they would have to wait for the defense to infringement in order to have infringement not could not bring a card or a judgment action for instance can nevertheless go into the p t o and say you got this wrong actually not just newman and that brings that patent issues both with with respect review ability in time that's why god isn't that the trend to have an opportunity within the p t o to clarify action brought by someone who's otherwise a stranger to the facts into the issues with respect knowledge and human because we're not paying any stranger any individual or any public to make this challenge and that's part of the reason why we didn't bring this challenge  charged with infringement is that right we have been charged with infringement our party has been in charge of and friends and that's part of the reason why we didn't file suit and shoot until two thousand and eleven so far with respect to the time of this issue under the statute of limitation you know i think i agree with you in that we could not have filed our a p action anytime before we we were sued for infringement otherwise we get into the concern about allowing any tom dick and harry to challenge patent apple is for any particular reason we're not advocating that at all what we're saying though is is very similar situation what you see in big league in manchuria and what can examine the alliance where an agency makes a decision with respect for property rights the agency grant a particular property rights to a party some years later that party acts on the property rights to the detriment of another party in this case excel were harmed we bring suit really the only way we can through an a p a action because that is the availability as a defense for infringement has been foreclosed under aristocrats and again the key distinction in terms of review ability we're not asking this court to authorize or condone every challenge to every a patent should be revoked because the examiner forgot to record a telephone interview for example that's an issue completely within discretion of the agency it's completely not governed by a statute that sets a strict standard and that's why our case is quite different than all the other cases and it's also the reason why we're i think fall within the reasoning on the analysis and at the con where this court did allow a third party to challenge every circuit where this patient goes to whether it's the authority as stepped forth by congress versus whether the decision being challenged either is clearly within the discretion of the agency or it clearly gets to the merits of an agency decision which congress intended to be limited with respect to challenges and that gets back to the point you had earlier with respect to block there the supreme court made that distinction and said time i think you've used mr doubt but i will restore your rebuttal time and give mr oregon an extra three minutes he needs to you thank you opponent this morning that that is exactly the analysis that the supreme court mandated in block that there are certain instances in certain statutory scheme in which congress has made its intent that only certain individuals and certain entities faced with certain circumstances are able to challenge agency action through the a p a in a federal district court and in fact if you look at law if you look at block and if analytical frame it applied to the milk act that issue there is almost on all fours with the past max treatment of third party infringers facing potato infringement leinil how do you know how do you know where to draw the line when you say there are certain let's say for example that this person is involved in infringement action and therefore has a direct compelling interest in this particular issue you still say that this is not one of those certain instances indeed your honor for two reasons number one just as was the case with respect to milk consumers in the milk act at issue in block there is absolutely no provision of the pa where the substantive merits of the patent as this court held an aristocrat the meat and downs of the intellectual property congress has specifically expressly and explicitly provides for both administrative and judicial review mechanisms for the u o s decisions in that regard and in particular i'm addressing ex parte reexamination interp are just reviewing post grant review the latter of which are found in the new ai act more over when congress spoke with respect to the interests of and the methods by which a p traded infringers such as a salad could ameliorate that or defend against that infringement liability it did so very clearly in thirty five u then do they have any remedy they don't on this issue but congress did provide doesn't that suggest that a p a is the place to do that sort of thing when there is no other legal remedy in it to the contrary  opposite i believe is the answer when congress provides a specific statutory scheme and a specific remedy as a didn't section two eighty two its own mission of the issue that comes before the court in this case is telling evidence of its intent indeed although the supreme court required him block was that the congressional intent be fairly discernible in the statute and here i would submit because it was omitted in section two eighty two it is it is almost likely audience but kind of having this same point from a slightly different direction than previous we said ok a p a is improper because there is another avenue we don't have another avenue here is you tell the one that's before the court here which is section seven zero one a one which is where congress precludes additional review by sajid the other which is where your honest question was directed is when there are other alternative remedies provided certain times those dovetail well together the provision of certain remedies and the only ition of others are telling evidence of the preclusion of judicial review but if you follow that line of reasoning and you look at section forty one of the statutes forty c two which says congress steps and says well the late payment of a maintenance fee isn't going to affect the patent he's right under certain defined circumstances so doesn't that suggest that where congress wanted to protect the patentee from the consequences of late payment of a fee that stepped in that said we're going to protect you and that's exactly what they do in in section forty one but there's no similar protection here to the patentee with respect to the late payment of this filing fee under three seventy well i would see two different things to that your honor first and foremost i think there's a difference between an intervening rights provision such as section forty one articulate fear and the provision of certain types and certain avenues of judicial review it is the latter that is primarily at issue in a preclusion analysis articulated by block and here where you have congress providing three parts with certain both administrative and traditional avenues for review of u s p t o action but only in certain circumstances the substantive patentability and you have a specific statutory provision such a in two eighty two which in which congress specifically delineated the remedies that would beat would be excuse me that would be afforded if you to have infringer in attempting to defeat infringement liability those two together make it fairly just him and they're rushing to the court they're rushing to use the a p a in federal district court instead of is serving it as a defense under section two eighty two which this court said it could not in aristocrat instead it starts a new civil action with a new defendant in a new caption and potentially in a new court so instead of raising it in the exact piece of litigation where they are facing infringement liability they are adding litigation that is exactly correct and that is that is essentially the same circumstances that confronted the court and block that if a if the secretary of agriculture and in regulating milk prices regulated those prices patent office were to deny a revival petition it could challenge that entity could challenge in federal district court under the a p a you could make a pretty good case here that the p t o ignored the statute or there was no nothing on the record says it's unavoidable and your honor from from the very dawn of the republic on today the court has held supreme court's held in repeated instances that where the court's jurisdiction is at issue the merits of the underlying cause of action are simply not relevant and even if not i but we have to assume that the action was unlawful here for present purposes that's correct and what you're saying is who cares nobody can challenge that again nobody in a  and those are the instances in which this court and and congress more specifically has allowed third parties to have a certain entree into both the administrative and judicial review functions that attend the patent office and so that only serves to to highlight the argument we're making here which is where congress wanted third parts the ability to seek either ministre tip or judicial review under the under the a it did so and did so explicitly is your argument require us to see the p t o s action as mere housekeeping ministerial nit picking here does not it does not we did that is require this court to do so all that is it all that is relevant is that this court held in aristocrat that section two eighty two the provision the congress provided for individuals in my colleague's position  i cannot think of one off the top of my head your honor but i what i can say is that the supreme court has repeatedly held that the presumption in favor of some judicial review is just that a presumption and that it can be overcome  other into indicia of congressional intent whether it be expressed statutory language or other means of dividing the statutory intent of the congressional intent the rather statutes i see in my time's expired i thank the court for different this court addressed the very questions that we've been discussing here this morning in previous the court discussed how to first of all noted that seven zero one seven zero four two different reasons why review under the a p a might not be available and then it walks through in great detail on analysis of how to apply blog to a claim by an alleged infringer seeking to challenge the issu i mean did so for good reason and some of the reasons the judge doug noted at the very outset of this argument which is it looked at the comprehensive scheme that congress has established for review but of course that was different in the sense that the obviousness issue which they sought to raise as and he would be a challenge is a defense which could be litigated in the course of the infringement action which is exactly what the court said jake there were two different defense challenging the the bases on which the examiner it held that the patent was non obvious that's not something that this court noted that can be raised in defense of an infringement suit under two eighty  noted that and it said nonetheless even if it can't be raised in that context you can't raise it here under the a p a and and significantly it held that under seven a one note went on of course because the ropes under alternative bases  performance there to also hold that there were other remedies but one thing that's that's important to note where it looks at seven o four as an alternative basis is it responds to the argument that unusual shall we say your honor first of all i would even need to change the statute i'm sorry if they even need to change the statute your honor we would say they didn't need to do anything because regardless of what you would think me put that aside perhaps address your question judge strike number one i do believe that seven o one operates independently of seven o four i mean it says so it says that the chapter doesn't even apply not sure that the first issue and previous isn't also affected by the fact that there was another remedy in other words that it could affect whether the state whether you look at the statute and you conclu it entirely forecloses judicial review of this issue you're on a new one can certainly think about that when thinking about whether congress meant to foreclose review and i understand that but the great weight of the argument you by anybody i don't think the courts have they may have decided the preclusion issue your honor in circumstances where that is true but whether they've actually faced up to that and gone through salt i don't know but here i don't think that that's necessarily true anyways when because when this rule was was put into place and certainly after the one nine hundred eighty four statute came into place that on the provided the words unavoidable someone with standing and again you know you'd have to look to see what party would have had could have challenged the rule wanted to face at that time in again a classic challenged prospectively like any other rule here what is being challenged is not the rule in a prospective sense what is being challenged as my friend says what you are saying they would have had an a p a action if they brought it mediately after the  from judicial review no your honor i don't believe so i think that in the one case we're talking about challenging and issued happens you know going around essentially there's a two eighty two process for how you do it there's all sorts of other ways to do it in court you can do a d j action you can argue it in defense it's as chewin issued stet patent itself you can't simply lied to fact that you've got no ability to state a defense in court and instead presume that that the congress that prohibited that defense that precluded that defense nonetheless intended that you'd be able to file an entirely new an independent action before the agency you wouldn't be able to make the same defense in the actual litigation that's going on oh we're going to multiply multiply litigation and drag p t o into it by having a separate suit against p t o they think that itself rely  proposition that an agency action assuming that it is ultra vires can go unchecked is without any remedy through view that actually and in fact if you look at the supreme court case law that deals with this default is that when that agency action is without authority from congress it's as if it never happened and that's why under the a p a there is a strong presumption of your ability congress here in the statute has not precluded review of this particular issue there is really no ability for any individual any party whether they have standing or not to challenge the agency's action here but for the a encounter those supreme court cases which talk about internet users and those who make a living out of deciding how to challenge what the government has done wrong and you know you get to the point where where the think that's a fair concern with respect to the inner marilyn and i don't want to encourage that type of activity that p t o has enough to do but here there's no question that excel has been harmed there's no question that according to the complaint the p t s action was on authorized and so this is not a case that will encourage additional collateral attacks on the minutia or the procedural irregularities this is attacking the authority of the p c o two revive an application to take subject matter that was abandoned and then put into the public domain and then extract that from the public domain in a manner that congress did not permit so so your comment that standard is irrelevant or would you say that sending  the court is adjourned until tomorrow morning at ten o'clock a