now the p t o is analysis in this case would suggest that the patent simply covers two devices in communication between those two devices when in fact the patent in this case the a three three patent require specific functionality of the two devices respectively in specific functionality in the way in which the devices communicate with one another and a user shares in access content between those two devices now there are two overarching issues in this peel the first procedurally is effectively create one proceeding and that had two effects one that happened before the final decision came down so when it emerged proceedings affectively expanded the scope of the one singular proceeding in procedurally what's important there is when it merges the reexamination expanded affectively because in addition to the grounds that worse than it originally requested regeneration volkswagen was then able to comment on grounds additional grounds the full scope of the grounds well and i think that's i think that's the core dispute here that the two parties have in terms of statutory interpretation and i think that the i think the statute is pretty clear there's two different sections of the statute there's a section that the ols with pending reexamination and then there's a session the statute that deals with as of yet more follow on reexamination and the language that you just referred to the any such patent claims language is not in the last part of the statute so last part of the statute that discus yeah i'd like to answer then a couple parts i think i'd start by saying not just the language we've talked about this morning your honour's but also the way the statute you set up the fact that there is two different scenarios and we cited some of the congressional histor history in our briefing and there it's pretty clear that the underlying ten with the statute was to curb or prevent pattern or harassment and this court said as well in function media that the purpose of the statute is to prevent  harassing actions so all the way we read the statute i think is consistent with that and that that the congressional kind of intent behind it was a recognition that there's a greater chance when you have  so i think ultimately those are the two we had on the two core issues one is the threshold pardons issue in the second is the any such pattern language as you and i i would submit that under just a plain reading of the statute you cannot read in and should not read in any such patent claim language into that last part of the statute and ultimately here i think it's also important to note one last thing on this point that there are there was key page of the answer all of the references all the key references that were eventually asserted across the scope of the reexamination were asserted first in the district for sure and were certain in the district court so there is overlap complete overlap with the core issues between the two and i believe the p t o argues that you need it to file some part of the quest for reconsideration on the petition determination yeah that we needed to petition a third time because the the result of the first two petitions was a quote unquote dismissal now legally the case here that's relevant is bennett the spear and that's case added by both the parties both parties agree that applies in the question on this issue is want whether legal rights were determined into whether it was the culmination of the agency's decision making process and here our argument is effectively it was it's a statutory interpretation issue we petition twice and the p t o set out its view of three seventeen b he said that their position is that you need to petition a third term wasn't that they just thought that you think we consideration to get a final decision well i  wouldn't argue that that's a form over substance i think they were asking us to once again present our three seventeen the argument when it was clear after two petitions what their position on that statute w overarching theme is as i discussed in my intro there the the claims require specific functionality and as you review the various grounds what you're going to see is that in each of the grounds some of that functionality is missing and ultimately we think that that that analysis that level of what we would deem a superficial analysis is insufficient to meet the p t s burden in a certainly insufficient to find the patent invalid here so with that i mustn't questions on your comprising a name and that's an issue with the wire reference so the ability to share that specific graphical user interface item from one device to another in the year two thousand which is the primary date here was not and also in those petition decision there wasn't any indication that in order for the patent owner to be able to have a true final decision on its petition that it would need to petition again on after not getting the relief from the first petition yes that's true it's true that the notice i guess what i'm wondering is i when i see a rather full complete thorough analysis that does seem to represent comp and the combination of the agency's thinking on an issue just you know merely following what another chapter of m v p says it without any agency decisions all the time and whenever there is an action by the agency which the agency doesn't believe that where it believes the petitioner has a right to exactly who to go to it would go to a higher level agency director of some sort i can't remember exactly but who was in the patents would be writing a decision on that's it would it would go to a higher level i don't know i can't remember exactly who who would review it but it would go to a different person to be affiliated in the whole point of this is just so the arguments they're making here could have been vetted it could've been a record made the p t o could have responded to their those arguments and there would have been a full record i'm happy to lot of sense because first of all it only applies against the party and it only applies when there's a final decision that can't be appealed it only applies it's consistent with the statute which applies on a claim by claim basis and that's how district way and interparty is reexamined requested by that party or privies on the basis of such issues may not there after be maintained by the office that's exact that's the key point and i think there's nothing claim specific about that that if you take that language just inner parties reexamined in which that issue was raised goes away right i think it is without limitation as to what else is in that into parties rita right now i think if you just just read just use those words on such issues that's that's one interpretation but i think when you read the statute as a whole and look at the purpose of the sachigo whole which is to prevent harassment by a requester who receives a final decision of invalidity with respect to certain claims and that's what the statute talks about works even though there may have been an assertion that all the claims were invalid or at one point in their complaint a circuit that one or more of the claims were infringed through litigation you focus the issues and here they were focused just two claims twenty eight and thirty five and other statutes and they also would require that the apple recant be terminated even though apple was no party and there is no evidence of a final decision adverse to apple i'd be happy to answer more passage the two twenty two twenty two in discussing this particular element to the claim they rely on the past i just i just told you about you told me about to pass just one wish in figure eight and one was something an eight ten six forty they show figure eight they should copy a figure eight yeah i think i think if anything made a point when they were making their arguments out why are they actually referred to the passages relied upon the examiner and the of otherwise hard to understand sweeping position would would be protecting rights and i think that this is kind of consistent with our our focus on the word issues and i think emerges proceedings and expands the scope of a proceeding and so effectively if any labs in this case had to deal with and invalidity issues in district court and it also had to deal with those exact same invalidity issues in the think what what congress in the intent of curbing pad or harassment of congress realizes that the risk in that scenario of the source situation raf year where you have harassment is lower now as a practical matter most of the time when you have a litigation like that the parties are going to settle out like they did here after there was an infringement finding so the scenarios under which there's going to be a follow on resume anation are practically few and far between so there's no need to have a broad and essentially flexible stoppel provision here at the way we interpret it that answers your question from so i want to address one other issue on  waiver thing mr mcbride suggested that the issue was was you know it could be fully that it if it was if we have to sin again but i would i would point the panel to the the board's decision and if i may or honors as just one last point i'd like to quickly address the dwyer issue because i think we may have got our wires crossed the element that i was talking about when asked about the novelty of the patent was the ability to display a gra might be a perspective identifying information in the system for a file is what's replicated on the portable device touch screen your time is up but i think you are about