but i think that opposition is you know rule thirty six decision formants can be based on anything based on the right that's that's why i'm asking you a question you're i mean i understand the theory of collaterals law i'm trying to understand the facts of that based on the fact that there was prior art that would do either one of those then how could that prior art and then the fact that it was not be sensible so that more decisions you want again i think opposition those that the  publication was was indeed the pressure of the shift so so i think under that analysis the court the court would have addressed that question but we don't know which specific arguments that the court accept that will respect it so therefore we did are versus will states that you want to preserve for purposes of this case the right to also be released from this proceeding it doesn't say anything about retroactive application at all point me to  thank you judge newman and may it please the court john o'quinn on behalf of apple just coming back to the first set of questions the court was asking there's no question that the issue of whether r c twenty four zero one was a pretty publication was  development from this court and identifying the fact that this court had decided that issue obviously under this court's internal operating procedures a rule thirty six decision can have collateral estoppel effect if the court thinks it's necessary for us to brief that we're happy to but i think that it's been been conceded and i think it's beyond dispute that this was a necessary issue to the prior decision in fact three of the i p r proceedings involving three of the prior patents the double  nine the three for one and the one three one patent the only issue that was appealed in the prior in that prior appeal was whether or not r f c twenty four a one was a prior to publication so can you can you tell us that there w any arguments about retroactively have been waived if there's not any suggestion of them in any of the briefing indeed the brief refer specifically to the arguments that were at issue in oil states namely whether or not the seventh amendment applies and whether or not there's an article three issue and indeed in their reply brief at page twenty six they had said that this court's binding precedent for closed the argument of course this court didn't have binding precedent on the issue of retroactivity the court has further questions on any of can be waived and to the extent that they are now attempting to assert a retroactivity argument that's certainly not something that has previously been presented this court has been consistently clear in cases like smith kline versus  issues relating to due process as well if i recall correctly and so judge newman there was certainly nothing about the oil states decision that has given them some intervening right or intervening argument that they didn't have at the time that they filed their opening brief this court's decision in m c n versus h p certainly didn't address any type of retroactivity argument and so there wasn't foreclosed by precedent and oil states is very clear that it was not addressing it it certainly wasn't creating or acknowledging the existence of some argument the didn't previously exist the court was just simply being precise in saying what they weren't addressing because there were some things that had been talked about during oral argument in that case that the time i think that's right that the supreme court was simply acknowledging that in deciding these specific issues that it had before it wasn't for closing other challenges that had not been before it but was very clear that this was a it wasn't something that oil states ha raised and again it wasn't something that this court had decided previously so this is an argument that was available to vernet it should it have wished to pursue it that ultimately i think at the end of the day it we have any useful discussi first sentence of the picture if before it is on page fifty four the supreme court is currently considering the question of whether the board's i p r process violates the constitution bikes and property rights through a non article three forum without