[00:00:01] Speaker 05:
the two cases for argument this afternoon are fourteen one seven six seven and fourteen one seven eight eight a caddys reference publishing versus apple mcgary the first thing you're going to tell me is whether i've been mispronouncing a caddys all of these weeks we pronounce it a katies okay i'm vince mcgary and i represent a katies

[00:00:31] Speaker 01:
Today I hope to address two topics.

[00:00:35] Speaker 01:
The first is that Section 315B is reviewable after a final written decision, as is in this case, and that it presents a prescription on the Board's ultimate authority to enter a final written decision.

[00:00:48] Speaker 03:
But isn't it procedural relating to the decision of the Institute?

[00:00:55] Speaker 03:
That's the language of B-15.

[00:00:59] Speaker 01:
No, Your Honor, it is not procedural.

[00:01:01] Speaker 01:
It is a directive at the Patent Office that they may not institute the proceeding at all, and therefore it is a prescription on their authority.

[00:01:12] Speaker 01:
The Court had requested some supplemental briefing, and we had the opportunity to present to the Court the Board's own decision in GTNX, which was a post-print review.

[00:01:22] Speaker 01:
and it covered business method proceeding, wherein the board construed very similar language for Section 325A of Chapter 32.

[00:01:32] Speaker 03:
In that particular proceeding... This isn't an ultimate question of validity, anticipation, obviousness.

[00:01:39] Speaker 03:
It relates to the decision to institute.

[00:01:41] Speaker 03:
That's the language itself.

[00:01:43] Speaker 03:
It may not be instituted.

[00:01:44] Speaker 03:
And 314 says decision whether to institute shall be non-appealing.

[00:01:52] Speaker 01:
314D states that a decision whether to institute under this section shall be final and non-appealable.

[00:01:58] Speaker 03:
You mean there are different sections relating to institution under one decision?

[00:02:03] Speaker 01:
No, but there is only one section with respect to what the determination is made under 314, and that's 314A.

[00:02:09] Speaker 01:
And it's very clear that the determination that's made under section 314

[00:02:13] Speaker 01:
is whether there is a reasonable likelihood of the petitioner prevailing on at least one challenge claim.

[00:02:19] Speaker 01:
So 314D only relates to making final and not appealable that question, whether or not there is a reasonable likelihood.

[00:02:29] Speaker 01:
We are not appealing that there was a failure to look at whether or not there was a reasonable likelihood under 315.

[00:02:36] Speaker 01:
We are appealing that the final written decision, the ultimate determination by the board, was incorrect.

[00:02:43] Speaker 01:
And therefore... Wait a minute.

[00:02:46] Speaker 05:
I don't know.

[00:02:46] Speaker 05:
Maybe I can't think of anything right now that's between that.

[00:02:49] Speaker 05:
But even if you're reading Versada, it deals with limits on the PTAB's invalidation authority.

[00:02:58] Speaker 05:
So, I thought your view was that this issue, the time limit 315 issue, comes within the PTO's invalidation authority.

[00:03:09] Speaker 05:
But are there things that are not within the invalidation authority that are beyond just the decision to institute?

[00:03:19] Speaker 05:
I'm just wondering if there can't be other matters that would not necessarily... I mean, your answer to Judge Lurie was that you're limiting 314s exclusively to just the decision to institute.

[00:03:32] Speaker 01:
314-D bias language is limited just to the sufficient institute under section 314, which is a reasonable likelihood threshold.

[00:03:42] Speaker 01:
So as we pointed out in our briefs, we can't come here before you and say, turn around some substantive finding because they got it wrong when they did the reasonable likelihood analysis.

[00:03:52] Speaker 01:
which is precisely the language under 314.

[00:03:56] Speaker 01:
But for 315B, the board's got to make an ultimate determination, irrespective of the reasonable likelihood standard, about whether or not it has the authority to move forward and to issue a final written decision.

[00:04:10] Speaker 01:
So those are two different standards.

[00:04:12] Speaker 01:
No one is arguing that the board can base its decision on 315B based upon whether or not the petition shows a reasonable likelihood

[00:04:21] Speaker 01:
of success on that issue.

[00:04:23] Speaker 01:
It has to be ultimately decided.

[00:04:25] Speaker 01:
And the question is whether the actual statutory language is an ultimate prescription on the board's authority to issue the final written decision.

[00:04:34] Speaker 01:
And I submit that the board has made that determination.

[00:04:37] Speaker 01:
So tell us about GTNX.

[00:04:41] Speaker 01:
Yes, so GTNX, the board instituted a post grant review and then after the post grant review was instituted it came to light that the petitioner's parent company had filed an action against the patent owner and therefore after the institution

[00:05:00] Speaker 01:
The board took up the issue under Section 325A and determined that very similar language to 315B.

[00:05:06] Speaker 01:
325A1 states that the director may not institute the post grant review proceeding and in GTNX they looked at the may not institute language as a jurisdictional non-wavable limit on its authority and dismissed the petition.

[00:05:22] Speaker 01:
That went up to a panel before this court.

[00:05:24] Speaker 01:
And on the writ of mandamus petition, this court looked at that construction, looking at that language and said that was a reasonable interpretation of Section 325A.

[00:05:36] Speaker 01:
The operative language may not institute the review is the same operative language in 315B.

[00:05:42] Speaker 04:
Now, Mr. McGeary, the question I wanted to ask you was, in Versata, as we mentioned a moment ago,

[00:05:48] Speaker 04:
Rosetta held that we have the authority to review whether the PTAB has violated a limit on its invalidation authority.

[00:05:58] Speaker 04:
So that got me thinking, what is the authority of the PTAB to act in an IPR?

[00:06:06] Speaker 04:
Nobody has cited section 316C.

[00:06:09] Speaker 04:
316 is a section that deals with the conduct of inter-party review.

[00:06:16] Speaker 04:
316C says Patent Trial and Appeal Board.

[00:06:22] Speaker 04:
The Patent Trial and Appeal Board shall, in accordance with Section 6, conduct, quote, each inter-party review instituted under this chapter, close quote.

[00:06:33] Speaker 04:
It seems to me that to the extent that the PTAP's authority is as reflected in

[00:06:42] Speaker 04:
316C to conduct each inter-party review instituted under this chapter that the institution does go to the ultimate authority of the PTAP to act.

[00:06:58] Speaker 04:
as you're arguing.

[00:06:59] Speaker 01:
That's what I am arguing.

[00:07:00] Speaker 04:
But nobody is arguing 316C in any brief.

[00:07:05] Speaker 01:
Your Honor, the 316C, which assigns the conduct of the IPR to the patent trial and appeal boards, is one of the statutory sections with respect to what authority and what entity has the authority to conduct the IPR.

[00:07:21] Speaker 04:
Well, if that's the section that sets forth

[00:07:26] Speaker 04:
the PTAB's statutory authority, that is, its authority is to conduct each inter-party review instituted under this chapter, then it seems to me that if a proceeding

[00:07:40] Speaker 04:
an IPR is instituted improperly that goes to the very authority of the PTAP to act, similar to, and that brings it right under the holding of Versado.

[00:07:52] Speaker 01:
Under the holding of Versado, precisely, Your Honor, and consistent with the board's rulings in GTNX.

[00:07:58] Speaker 01:
We agree that this is an ultimate authority question and if the board didn't have the authority, then it's reviewable under the Administrative Procedure Act before this court after a final written decision is entered.

[00:08:12] Speaker 01:
So now that there is a final written decision respecting packability, this court has jurisdiction.

[00:08:16] Speaker 01:
It's reviewability is not precluded by any portion of the statute and it must be reviewed under the Administrative Procedure Act.

[00:08:26] Speaker 01:
We submit that the one argument that was presented in the supplemental briefs, which I thought warranted us addressing right now, was the argument citing some cases by the petitioner that because 315B addressed a time limitation that for some reason that makes it not an authority issue.

[00:08:50] Speaker 01:
However, given 316C, and furthermore, the cases that were cited there make very clear that when a court is reviewing that type of language, it needs to look at what the mandate Congress is giving if a time limitation is not met.

[00:09:07] Speaker 01:
And here the mandate, as the board itself ruled in GTNX is, you don't have authority to go forward with this inter-party review.

[00:09:15] Speaker 01:
So given the statutory language, given the GTNX decision, given the Versada case and given 360C, it's clear that this court has jurisdiction and should review the final written decision in this particular case.

[00:09:34] Speaker 01:
We came before here on the final written decision on this issue to bring forward that there was no evidence in the record whatsoever presented by the petitioner to support the board's exercise of authority under 315B.

[00:09:49] Speaker 01:
All that was presented in the petition was a bare legal conclusion stating that the petitioner had no privity relationship with any party that had been sued more than one year before the petitioner filed the petition.

[00:10:04] Speaker 01:
That is the language of 315b.

[00:10:07] Speaker 01:
We alerted the board that in fact there had been a lawsuit with other co-defendants and brought to the board's attention that there may indeed be a substantive legal relationship between the petitioner and those other defendants in that lawsuit.

[00:10:23] Speaker 01:
Nevertheless, no evidence was forthcoming.

[00:10:26] Speaker 01:
So on the issue of 315B and on the issue of privity or whether the petitioner shared a real party and interest relationship or a privity relationship with any of the code defendants,

[00:10:38] Speaker 01:
The record provided by the petitioner is devoid of any evidence whatsoever.

[00:10:44] Speaker 01:
No one is arguing for the court that the bare legal statement or bare legal conclusion that the petitioner's lawyer put in the petition amounts to an evidentiary showing.

[00:10:57] Speaker 01:
No one is arguing that.

[00:10:58] Speaker 01:
Nevertheless, the argument is that under Rule 104 of the regulations, that's all that's required to meet the requirements of 315b.

[00:11:10] Speaker 01:
As we pointed out in our briefing, that would be basically an effort to completely rewrite the Administrative Procedure Act.

[00:11:17] Speaker 01:
It is the Administrative Procedure Act which sets forth the standard that this Court will use to review final agency action.

[00:11:25] Speaker 01:
The final agency action here is the final written decision pertaining to Acadia's patent.

[00:11:32] Speaker 01:
And so 315B being an ultimate authority issue and being part of the final agency action must be supported by substantial evidence in the record.

[00:11:41] Speaker 01:
There is no substantial evidence in the record.

[00:11:44] Speaker 01:
In fact, the only evidence in the record that was presented was presented by Acadia's to demonstrate to the board that in fact there was likely a legal relationship between Acadia's and the petitioner.

[00:11:55] Speaker 01:
Notwithstanding our arguments, the board proceeded to place a burden of proof on the KDs to actually prove the existence of this relationship.

[00:12:06] Speaker 01:
And we also demonstrated that after placing that burden of proof on us, the board acted arbitrarily and capriciously by denying us any discovery of the agreements that existed between the petitioner and its co-defendants.

[00:12:20] Speaker 01:
That was a record that such a legal relationship existed.

[00:12:24] Speaker 01:
The board recognized in its final written decision that the questions under 315b were highly fact intensive.

[00:12:32] Speaker 01:
The only way to wade through those facts is with evidence.

[00:12:38] Speaker 01:
On this record, for this court, there is no evidence whatsoever supporting the exercise of authority under 315b.

[00:12:47] Speaker 05:
You're into your rebuttal.

[00:12:50] Speaker 05:
Let's hear from the other side.

[00:12:52] Speaker 05:
We'll take the rest of your rebuttal.

[00:13:00] Speaker 05:
Mrs. Caprahan?

[00:13:01] Speaker 00:
Yes.

[00:13:03] Speaker 00:
Your Honor, may I please the court?

[00:13:05] Speaker 00:
Coughley Caprahan on behalf of the Director.

[00:13:07] Speaker 00:
Here, Acadies ignores the merits of the board's final written decision, finding every challenge claimed invalid, and instead attempts to vacate that decision on a technicality.

[00:13:17] Speaker 05:
by arguing its appeal as to whether or not the board properly instituted the... Well, the question of whether or not it's reviewable is a technicality, I guess, in some sort, but not really, not from where we sit here.

[00:13:29] Speaker 05:
So why don't we turn, I mean, starting with your friend's assertion that the position you're espousing here is not consistent with the position you took in GTNX.

[00:13:39] Speaker 05:
What do you have to say to that?

[00:13:40] Speaker 00:
Your Honor, actually, we do believe that GT&S is persuasive in favor of our position.

[00:13:46] Speaker 00:
In GT&S, which involved a CBM proceeding much like the case did in Versada, in that case, there was a time bar issue as well.

[00:13:55] Speaker 00:
And there, the court found that there was actually no jurisdiction to review the decision that the board found that the petitioner did not have standing to bring that CBM proceeding.

[00:14:05] Speaker 00:
And so, in fact, the board found that there were steps

[00:14:08] Speaker 00:
that it did not have jurisdiction to review that decision under 324E1, which is a parallel statutory provision as to 314B in an enterprise review proceeding.

[00:14:18] Speaker 00:
So I do think that GTN Act is actually on point as to the director's submission.

[00:14:24] Speaker 05:
And what about on review here?

[00:14:26] Speaker 00:
On review here it's also on point and the reason being is because the time bar limitation of 315B as well as the time bar limitation that was in 325A1 is not an ultimate invalidation, it does not affect the board's ultimate invalidation authority.

[00:14:43] Speaker 04:
And what about 316C?

[00:14:47] Speaker 00:
316C also deals with the board's, once the board has instituted the inter-party review, yes, that decision is within the board's statutory authority.

[00:14:58] Speaker 04:
But isn't 316C a statement of what the P-TEBs

[00:15:04] Speaker 04:
statutory authority is.

[00:15:07] Speaker 00:
But that is a statement of the PTAP statutory authority once it has actually instituted in a parties review.

[00:15:12] Speaker 00:
If we take that as the board.

[00:15:14] Speaker 04:
Well, if you take the statute literally, it says, let me see if I can find it here.

[00:15:29] Speaker 04:
It says the Patent Trial and Appeal Board shall conduct

[00:15:34] Speaker 04:
each inter-party review instituted under this chapter.

[00:15:38] Speaker 04:
So if an IPR is not properly instituted, then the PTAB doesn't have the statutory authority to reveal it.

[00:15:48] Speaker 00:
If we take that position, Your Honor, then it would completely eviscerate the impact of Section 314B.

[00:15:54] Speaker 03:
Your point is that we lack jurisdiction to review that.

[00:15:58] Speaker 00:
That was correct, Your Honor.

[00:16:00] Speaker 03:
Because it relates to the decision to institute.

[00:16:03] Speaker 00:
That is correct, Your Honor.

[00:16:04] Speaker 00:
Under Section 314B, Congress mandated that the decision of the Board of whether or not to institute inter-parties review shall be final and non-appealable.

[00:16:12] Speaker 00:
And this court has confirmed as much in a series of decisions, including St.

[00:16:16] Speaker 00:
Jude, and more recently in Enrique Closot, and in GP&X.

[00:16:21] Speaker 05:
And what about Versado, where we seem to have created an exception to that, and I don't want to use the word exception, for matters dealing with the board's inherent authority.

[00:16:31] Speaker 05:
So why does this not fall within that category?

[00:16:35] Speaker 00:
And the reason being is because in Versata, the court first did acknowledge that 324E1 did create the spar for reviewability for institution decisions.

[00:16:45] Speaker 00:
But what they carved out was for decisions that related to the board's ultimate authority, ultimate invalidation authority.

[00:16:52] Speaker 00:
And the reason being that in that case there was an issue which the court found was reviewable was because the particular type of patent issue was a CBN patent or a covered business patent.

[00:17:04] Speaker 00:
And the type of proceeding that was at issue, the post-grant proceeding, was only available for certain types of patents.

[00:17:11] Speaker 00:
And therefore, because in reviewing that case, what the court flashed onto was this notion that there couldn't be no proper pleading that could be filed that could bring that patent, if it wasn't a CBN patent, within the board's authority to invalidate.

[00:17:27] Speaker 00:
And so here in this proceeding, there is no such issue.

[00:17:31] Speaker 05:
Well, clearly, this is not a CBN.

[00:17:33] Speaker 05:
There are a lot of distinctions between this.

[00:17:37] Speaker 05:
Certainly, they carved out an excuse.

[00:17:39] Speaker 05:
Do you disagree that the holding in Versada is that when the decision has to do with a matter involving the board's inherent authority, that decision is reviewable on appeal?

[00:17:51] Speaker 05:
Do you disagree with that?

[00:17:52] Speaker 00:
That is the court's finding that's correct.

[00:17:54] Speaker 05:
OK.

[00:17:55] Speaker 05:
And why, given what the board said and what you've told us today about what the board concluded in GTNX about the jurisdictional question about involving a time limit,

[00:18:07] Speaker 05:
Why does that not give us a clear path to say, given the board's own view about time limits being within their jurisdictional authority, that puts it within the Versada exception created under CBF.

[00:18:22] Speaker 00:
Well, I think we do have to look at how the court reasoned when it found that that particular provision provided the board's ultimate invalidation authority.

[00:18:30] Speaker 05:
I'm sorry, I may have confused you.

[00:18:33] Speaker 05:
What case are you talking about now?

[00:18:34] Speaker 00:
I'm talking about Versado.

[00:18:36] Speaker 00:
And in the Versado decision, the court focused on whether or not there was a proper pleading that could have been filed to bring that particular patent within the board's authority to invalidate.

[00:18:46] Speaker 00:
And in that case, if that patent was not a CVM patent, there was nothing that could be filed by the petitioner.

[00:18:53] Speaker 05:
Okay, so what in this case could have been done differently, could have been cured?

[00:18:58] Speaker 05:
Could there have been anything that had been cured during the process with regard to the one-year and the privity issue?

[00:19:04] Speaker 00:
Yes, in this case there could be.

[00:19:05] Speaker 00:
In this case, a third party, for instance, could have filed a petition.

[00:19:08] Speaker 00:
to seeking to review a Katie's patent.

[00:19:11] Speaker 00:
And Apple actually could have even filed under 315C a request for Joinder.

[00:19:16] Speaker 00:
And the board, in its discretion, could have granted that motion.

[00:19:19] Speaker 00:
And so in that case, the patent that issued, the Katie's patent, could still be brought within the board's authority to invalidate.

[00:19:25] Speaker 00:
So there is a proper pleading that could have been filed.

[00:19:27] Speaker 00:
And therefore, it is not the type of invalidation authority.

[00:19:31] Speaker 05:
No, no, no.

[00:19:31] Speaker 05:
But that's not my question.

[00:19:32] Speaker 05:
Yeah, there could have been a proper one that could have been filed.

[00:19:37] Speaker 05:
Could there have been something that happened in the proceeding that could have cured or washed away the initial deficiency in the institution?

[00:19:48] Speaker 00:
I mean, technically, I guess Apple could have also filed an earlier petition if it was indeed time barred, which in this case it wasn't.

[00:19:55] Speaker 00:
But if it was indeed time barred, and I mean, another part, my point is that the patent itself could have been still subject to inter-party review.

[00:20:03] Speaker 00:
Whether or not this particular petitioner brought that petition is not really an issue.

[00:20:08] Speaker 05:
Well, no, that was my question, though, whether something could have happened or been done in this proceeding.

[00:20:13] Speaker 00:
In this proceeding to the extent that Apple was itself time barred?

[00:20:17] Speaker 00:
No.

[00:20:18] Speaker 00:
In this proceeding, no.

[00:20:19] Speaker 00:
But if there was another proceeding by a third party and Apple then stopped to join that proceeding, Apple could still seek review of this particular patent.

[00:20:28] Speaker 00:
And the point is that the board still could have thought, could have still exercised invalidation authority in reviewing the patent set issue.

[00:20:37] Speaker 05:
Why don't we hear from the others?

[00:20:40] Speaker 00:
I'm sorry.

[00:20:51] Speaker 02:
Thank you, Your Honor.

[00:20:52] Speaker 02:
Thank you, Your Honor.

[00:20:52] Speaker 02:
May I please the court?

[00:20:53] Speaker 02:
Joe Wehrer for Apple.

[00:20:56] Speaker 02:
The critical distinction, Your Honors, is that the Versano court did not talk about authority to institute and conduct proceedings.

[00:21:03] Speaker 02:
It used the unique phrase, limits on ultimate invalidation authority.

[00:21:08] Speaker 02:
And it did so, we submit, because it was talking about the ability of the board to actually invalidate the patent that was forwarded, whether in the CVM review process you could actually invalidate a patent if it isn't a CVM patent.

[00:21:21] Speaker 02:
If you construe a limit on ultimate validation authority to be the limits on any authority to institute a proceeding, then you have just set Versada and Quazzo and St.

[00:21:33] Speaker 02:
Jude-Lotting cases on an inescapable collision course.

[00:21:36] Speaker 02:
Because Quazzo says... Well, not if the distinction is based on...

[00:21:40] Speaker 04:
a statutory issue because we're not talking about a procedural or pleading defect as in COSA.

[00:21:49] Speaker 04:
We're talking about a statutory time bar that applies in this case.

[00:21:56] Speaker 02:
Isn't that a distinction?

[00:21:57] Speaker 02:
It is a distinction on the facts of the case of your office, Quazzo, but Quazzo says that 314D must be read to borrow review all institution decisions, even after a final written decision.

[00:22:09] Speaker 02:
That language will have now a gigantic gaping hole in it if every procedural impediment to a particular party bringing an action under the ITRA process is now considered to be a limit on ultimate invalidation authority.

[00:22:23] Speaker 02:
Well, it's not a procedural.

[00:22:25] Speaker 02:
It's a statutory bar.

[00:22:28] Speaker 02:
Your Honor, with respect, I don't think it is a statutory bar to the ability of the Board to invalidate a particular patent.

[00:22:35] Speaker 05:
Well, can I just ask you, I don't understand why, what the Board talks about a jurisdictional limit in GTNX, which is the Board didn't have jurisdiction because the issue itself was not timely.

[00:22:48] Speaker 05:
why that doesn't fall into the same box you're saying that the CBM in Versado falls into because the board at the end of the day, it ultimately goes to their ultimate authority to issue a decision in this case.

[00:23:02] Speaker 02:
But ultimate authority is the phrase is ultimate authority to invalidate and it's not couched in case specific language.

[00:23:09] Speaker 02:
It's the ability to invalidate a patent.

[00:23:11] Speaker 02:
In this case, Katie's patent could be invalidated at the behest of another party where there was no consumable time bar limitation.

[00:23:17] Speaker 02:
That's the critical distinction.

[00:23:19] Speaker 05:
But if you read GTNX, which I'm sure you have, isn't the only way to reconcile that case with this case.

[00:23:27] Speaker 05:
Say the board was telling us that they don't have

[00:23:30] Speaker 05:
If the issue was untimely, that's a jurisdictional question, and they would not have the authority to ultimately invalidate the patent because it was time-hard.

[00:23:39] Speaker 02:
Your Honor, it's a limitation on their ability to act at the behest of a party, a particular party, not the ability to act on the patent.

[00:23:46] Speaker 05:
And if I may also point out... I'm sorry, so you're saying, just so I understand, so you're saying that as long as somebody else could bring the same suit... It's not a limitation on their ultimate authority to invalidate a patent.

[00:23:58] Speaker 02:
because somebody else could bring it.

[00:23:59] Speaker 02:
It's just a restriction on the ability of a party to institute a proceeding.

[00:24:03] Speaker 02:
And that does not go to the board's own ultimate invalidation power.

[00:24:07] Speaker 02:
But if I could address your jurisdictional GTNX question, Your Honor, GTNX involves 325A1.

[00:24:13] Speaker 02:
That is not a time bar.

[00:24:15] Speaker 02:
That is a provision that says if you elect to sue in district court, you can't come here.

[00:24:19] Speaker 02:
A time bar is what we have in 315B, and there is no analog in the post grant review process to 315B.

[00:24:26] Speaker 02:
It is a statute of limitations.

[00:24:28] Speaker 02:
If you've been sued, you have the option to go to the PTO, provided you do it within a year.

[00:24:34] Speaker 02:
And the decision in Auburn Regional is quite explicit in saying all statutory time bars, even those that govern agency action, which is what was at issue in that case,

[00:24:44] Speaker 02:
are not jurisdictional and are waivable absent a clear statement in the text of the statute itself and the clear statement the court said even emphatic time limitation doesn't count.

[00:24:56] Speaker 02:
What we have here is a may not instituted false far short of a clear statement rule required by Auburn Regional.

[00:25:02] Speaker 02:
So even if you are willing to take you take the view that these are in fact

[00:25:08] Speaker 02:
authoritative limits on the invalidation authority, this one isn't because it's waivable and non-jurisdictional.

[00:25:15] Speaker 02:
If I may turn to the merits, Your Honor, if you do conclude that you have jurisdiction, we urge you to affirm on a number of grounds.

[00:25:23] Speaker 02:
In our view, the statute is plain and unambiguous in assigning the burden of proof on the time bar issue to the patent owner.

[00:25:31] Speaker 02:
That follows for three basic reasons.

[00:25:33] Speaker 02:
Congress used the common law term in the statute, privity or privy.

[00:25:37] Speaker 02:
That comes with it, the associated rule that the burden falls on anyone who is seeking to preclude another from instituting the lawsuit.

[00:25:44] Speaker 02:
316 assigns a burden of proof on the petitioner to prove invalidity, and 312 assigns burdens of production on the petitioner to identify real parties' interests and evidence.

[00:25:58] Speaker 02:
The clear inference is Congress assigned the burdens it intended to assign to petitioners.

[00:26:02] Speaker 02:
You can't assume there's some sub silencio additional burden that contradicts the common law rules.

[00:26:08] Speaker 02:
And third, the legislative history confirms

[00:26:11] Speaker 02:
But the proponents of this law understood that the patent owner would have the burden of going forward.

[00:26:17] Speaker 02:
So for all of those reasons, the statute itself clearly and unambiguously says, patent owners, you think this guy's time bar is your duty to come forward with the evidence.

[00:26:27] Speaker 02:
And the absence of evidence in this record falls on Acadies.

[00:26:32] Speaker 02:
Even if you disagree with my statutory analysis,

[00:26:36] Speaker 02:
At most, then, the statute is ambiguous and doesn't clearly assign the burden, and the PTO has resolved that ambiguity through regulations that adopt a scheme whereby the petitioner has to make a certification, the patent owner has to rebut it with evidence.

[00:26:53] Speaker 02:
There is nothing in the APA that says that that's an invalid interpretation of the IPR scheme.

[00:26:59] Speaker 02:
The test under Chevron is

[00:27:02] Speaker 02:
If the statute's ambiguous, then there's been authority granted to the agency to resolve the ambiguity.

[00:27:08] Speaker 02:
Is its position reasonable?

[00:27:09] Speaker 02:
There is nothing unreasonable about a certification burden shifting scheme.

[00:27:13] Speaker 02:
There's not anything in the statute that they can point to that says that's impermissible.

[00:27:18] Speaker 02:
And under that scheme, we did what we needed to do.

[00:27:20] Speaker 02:
We put in the certification.

[00:27:22] Speaker 02:
And Akades came back and they refer to this condemnification clause in a publicly available agreement.

[00:27:28] Speaker 02:
We demonstrate in our brief that as a matter of law, that clause is irrelevant because in it, appellates the indemnity.

[00:27:36] Speaker 02:
And we established, and Akades doesn't respond to our showing, that indemnities are not bound by judgments against the indemnitor.

[00:27:43] Speaker 02:
So they came forward with legally irrelevant evidence to try to show an estoppel where they had the burden of proof both we submit under the statute and second under the regulatory regime that the PTO reasonably adopted if you conclude that the statute itself didn't mandate the allocation of the burden to the patent order.

[00:28:04] Speaker 02:
So for those reasons they're playing that

[00:28:07] Speaker 02:
There's no substantial evidence to support the absence of a time bar.

[00:28:11] Speaker 02:
It's just a question begging exercise about who had the burden of proof.

[00:28:15] Speaker 02:
And both under the statute and under the regulation, they had the burden as to that issue.

[00:28:21] Speaker 02:
Katie's, excuse me, Apple's burden was to prove invalidity by a preponderance of evidence.

[00:28:25] Speaker 02:
And there is substantial evidence for that judgment.

[00:28:28] Speaker 02:
On the discovery issue, again, because all Acadies came forward with a document that even if it had been executed would be irrelevant to the question of whether Apple could be stopped by a judgment against Quick Office, means that they came forward with woefully inadequate showing the board requires consistently across a number of cases, including the ones they cite, it requires that you come forward with evidence already in your possession

[00:28:55] Speaker 02:
that tends to support your time bar.

[00:28:57] Speaker 02:
And in the two cases they cite, that evidence was the petitioner is an indemnitor in another case, indemnification claims have been made, the indemnitor has the ability or likely has the ability to control the litigation, the indemnification claims have been resolved in that other litigation.

[00:29:13] Speaker 02:
There is no evidence to support a single one of those facts.

[00:29:16] Speaker 02:
And the board properly relied on the fact, which it has done in a number of other discovered disputes, that the whole motion was untimely.

[00:29:26] Speaker 02:
So for all these reasons, if you get to the merits, there is, no pun intended, no merit to Acadie's claim that, in fact, this decision should be reversed.

[00:29:37] Speaker 02:
But if I could go back to where I started, the other, and the director's counsel referred to this, we are talking about

[00:29:46] Speaker 02:
One of the rationales in St.

[00:29:48] Speaker 02:
Jude in Quazo is once the board decides it's going to institute or not, if there's a mistake there, it's got to be egregious.

[00:29:59] Speaker 02:
It can be remedied by man Davis.

[00:30:02] Speaker 02:
Once it goes forward, the appellate review scheme, including the provisions that authorize this court's review of final written decisions, focus exclusively on the merits of the patentability determination.

[00:30:13] Speaker 02:
And that makes good sense because the board's gone to the bother of resolving the validity of claims.

[00:30:18] Speaker 02:
The public has an interest in knowing if these claims are valid or invalid.

[00:30:22] Speaker 02:
The board has undertaken the effort, resolved that question, and a party has announced it before you saying, wipe that from the books.

[00:30:29] Speaker 02:
Is there anything wrong with it?

[00:30:30] Speaker 02:
They don't cite one reason to suggest that the patentability merits decision is wrong.

[00:30:35] Speaker 02:
They've completely abandoned their claims on that, and they're asking essentially to blow up that decision because of this asserted time bar, which as we've explained, is not jurisdictional, even if GTNX is right about the A1 provisions.

[00:30:51] Speaker 02:
And in all events, I submit, does not go to the board's ultimate authority to invalidate patents.

[00:30:57] Speaker 02:
Thank you, Your Honor.

[00:31:07] Speaker 01:
Let me address first the issue raised that the burden of proof is on Acadies.

[00:31:14] Speaker 01:
I'm reading from page 18 of the director's brief.

[00:31:17] Speaker 01:
Acadies mischaracterizes that the board's decision to institute stating that the board misinterpreted section 315b and erroneously placed the burden on Acadies to prove Apple's privity with a codifying.

[00:31:28] Speaker 01:
It's the director's view that the burden is not on Acadies.

[00:31:35] Speaker 01:
This is only Apple's position that the burden of proof is shifted to Acadies.

[00:31:41] Speaker 01:
Addressing it somewhat further, if we think about it for one second, the burden can't be on Acadies because the final agency action is the action that the petitioner is asking for.

[00:31:54] Speaker 01:
And the APA says that that agency action requires substantial evidence.

[00:31:59] Speaker 01:
The evidence that's needed is the evidence that shows that the board had authority, not that the ACADE is coming in and showing that the board doesn't have authority, because then the record as it is here is vacuous with respect to whether the board had authority to proceed.

[00:32:16] Speaker 01:
Regarding the regulations,

[00:32:18] Speaker 01:
If the Patent Office were to adopt regulations that shifted the burden, it would be acting outside of the Administrative Procedure Act.

[00:32:26] Speaker 01:
An agency can't come in and do away with judicial review.

[00:32:31] Speaker 01:
The judicial review of the APA is directed at the court.

[00:32:34] Speaker 01:
The court applies that no matter what regulations an agency may adopt.

[00:32:41] Speaker 01:
The agency can't come in and change the power of the court to review an agency action.

[00:32:48] Speaker 01:
So that position has very little merit, has no merit.

[00:32:51] Speaker 01:
Regarding the GTNX decision, the director pointed out that in GTNX, the court found it didn't have jurisdiction to hear that appeal.

[00:33:03] Speaker 01:
The reason was because there was no final written decision.

[00:33:06] Speaker 01:
It pointed out, like here, where you have 319 and 318, 319 says there must be a final written decision as to patentability before the court has jurisdiction.

[00:33:15] Speaker 01:
328A and 329 had the same provisions in the covered business method.

[00:33:21] Speaker 01:
And because the board did not ever issue a final written decision in GTNX, the court declined to hear the jurisdiction.

[00:33:29] Speaker 01:
That's not the case here.

[00:33:31] Speaker 01:
Here, like Posada pointed out, we have a final written decision.

[00:33:35] Speaker 01:
319 gives this court jurisdiction and gives it reviewability.

[00:33:40] Speaker 01:
CUSA only decided that the determination that was made that there was no reasonable likelihood because the grounds were not supported by the petition, that goes right to the reasonable likelihood to proceed.

[00:33:55] Speaker 01:
And that's exactly what 314D addresses.

[00:33:58] Speaker 01:
Completely different than the situation where we have a final written decision.

[00:34:03] Speaker 05:
Thank you.

[00:34:03] Speaker 05:
We thank all counsel and the cases submitted and that concludes our proceedings for the day.