[00:00:36] Speaker 03:
The next case is Husky Injection Molding Systems versus Athena Automation, 2015, 17, 26, and 27.

[00:00:46] Speaker 03:
Mr. Cutler, good morning.

[00:00:53] Speaker 05:
Can you beat that previous argument?

[00:00:55] Speaker 02:
I'll tell you what, that's going to be tough to do.

[00:00:57] Speaker 02:
I'll be honest with you, Your Honor, but thank you.

[00:01:00] Speaker 02:
May it please the Court, my name is Matt Cutler.

[00:01:01] Speaker 02:
I represent Husky Injection Molding Systems in this appeal.

[00:01:05] Speaker 02:
And our appeal is based on a singular issue, whether the doctrine of a sign or a stop will should apply in interpartite review proceedings.

[00:01:12] Speaker 02:
Now, these types of procedural issues has been raised by the Solicitor and also by Athena.

[00:01:17] Speaker 02:
Procedural issues have so far been considered through the lens of 314D.

[00:01:22] Speaker 02:
And of course, 314D is pending before the Supreme Court.

[00:01:26] Speaker 02:
And the Quozo decision arguments were heard a little over two weeks ago.

[00:01:29] Speaker 02:
And I think that part of the decision maybe may, I don't think it advances all here today,

[00:01:35] Speaker 02:
to discuss whether those earlier decisions by the court were correctly or incorrectly decided.

[00:01:41] Speaker 02:
I think the Supreme Court is going to make that decision for us.

[00:01:43] Speaker 02:
When that happens, if the Supreme Court decides that this court can review a decision to institute, we'll be back and the decision would be

[00:01:52] Speaker 02:
to figure out whether a sign or staple does apply to inter-party review proceedings, because that's something you can look at.

[00:01:57] Speaker 05:
Well, there's a more difficult question that's not answered by the way you phrased that.

[00:02:02] Speaker 05:
The more difficult question is not whether we can review Decisions Institute.

[00:02:08] Speaker 05:
The statute's fairly clear on that.

[00:02:10] Speaker 05:
The statute, in effect, says we're not going to have any interlocutory appeals from Decisions Institute.

[00:02:17] Speaker 05:
The more difficult question in this case is whether

[00:02:21] Speaker 05:
on final decision, can we review a question that goes to the, if you will, the essence of the appeal or the issues in the appeal, even if that initial decision was made at the time of the decision to institute review?

[00:02:42] Speaker 05:
That's really the question.

[00:02:44] Speaker 05:
I don't think the Supreme Court's going to say, oh yeah, you can review decisions to institute, unless the

[00:02:51] Speaker 05:
you know, are really ticked off at the Congress, in which case they'll ignore it, but I don't think any of us want to go there.

[00:02:57] Speaker 05:
So the question is, can we look at an issue of this kind when it comes up on final decision?

[00:03:06] Speaker 05:
And what's your answer to that?

[00:03:10] Speaker 02:
I believe that the answer to that is going to be yes.

[00:03:12] Speaker 02:
I listened to the arguments to the Supreme Court.

[00:03:15] Speaker 02:
I believe that Justice Sotomayor was troubled by the way things have

[00:03:19] Speaker 00:
What do you think the answer is under the law as it currently stands, not where you think the Supreme Court is going to go?

[00:03:26] Speaker 02:
I believe that the law as it currently stands, that what was intended by Congress with Section 314D was not that anything at all at the beginning of an inter-party review can't be looked at by this court.

[00:03:41] Speaker 02:
It was a surprise, I believe, throughout the bar that that's where this court ended up on that particular issue.

[00:03:48] Speaker 02:
that ultimately that's going... I agree if the court is reversed on that point I would agree with it based on what all the information that we've set forth in our briefing.

[00:03:57] Speaker 05:
Well, surely your position can't be, or maybe it is, that we can review anything we want to on final decision even if it was simply a question at the Institute

[00:04:16] Speaker 05:
stage like, should we institute on claims 12 and 14 or just on 12?

[00:04:25] Speaker 05:
And the PTAB says, let's just do 12.

[00:04:28] Speaker 05:
And this comes up on us.

[00:04:30] Speaker 05:
And the question is, they should have instituted on 14.

[00:04:33] Speaker 05:
Can we review that?

[00:04:35] Speaker 02:
I believe you can, for example.

[00:04:37] Speaker 02:
You can?

[00:04:37] Speaker 02:
I believe, for example, the PTAB has created a doctrine called redundancy, for example.

[00:04:43] Speaker 02:
And they will, at the decision institute level,

[00:04:45] Speaker 02:
not listen to the challenge to claim 14 because it's redundant.

[00:04:49] Speaker 02:
I believe that this court should have the opportunity to review whether redundancy is something that should be undertaken by the... What about our recent decisions where we've said that we will not review that?

[00:05:01] Speaker 02:
Well, you know, that's... I think all this wraps up in what's going to happen.

[00:05:06] Speaker 00:
Assuming, let's assume for a minute, setting Quozo aside, under the current state of the law, are you still arguing

[00:05:15] Speaker 00:
that your position here are you saying that under the current state of the law, under Katie's and that line of cases, you agree that we don't have jurisdiction?

[00:05:25] Speaker 02:
I was trying to shove that issue aside for now because I agree, under the current state of the law, my argument is, if it's viewed via the 314D lens, it doesn't have a lot of legs right now.

[00:05:37] Speaker 02:
That's why I was trying to suggest early on that Coors was going to decide that for us.

[00:05:41] Speaker 05:
Well, before you give that up so readily, my friend, you might

[00:05:45] Speaker 05:
I might ask you this question.

[00:05:47] Speaker 05:
Should we interpret the IPR statute and the CBM statute the same way?

[00:05:56] Speaker 02:
I think there are, I've not considered that question.

[00:05:58] Speaker 05:
Statutes are exactly, literally identical, right?

[00:06:04] Speaker 05:
Correct.

[00:06:04] Speaker 05:
We've interpreted the CBM statute to say that there are certain basic ideas

[00:06:12] Speaker 05:
that continue to be reviewable, including the question of whether there is a fundamental legal opportunity for the PTAB to have undertaken that review and come up with the final opinion.

[00:06:27] Speaker 05:
Would you think that standard ought to apply to IPRs?

[00:06:31] Speaker 02:
I do believe that Your Honor's Versado decision should apply to IPRs and could.

[00:06:35] Speaker 02:
And that gets to my next point.

[00:06:37] Speaker 05:
And I'll answer the judge's question in that light.

[00:06:41] Speaker 02:
I guess it's part and parcel with what my next point was going to be.

[00:06:44] Speaker 02:
I believe that under the facts of this particular case, the court does have jurisdiction to look at the sign or stopple issue.

[00:06:52] Speaker 02:
Obviously, what the solicitor and what Athena has stated is that we're taking this under the 314D, Akades, and the long line of cases that have followed lens.

[00:07:03] Speaker 02:
I'm suggesting we're outside of that, is what I was trying to ultimately get to.

[00:07:06] Speaker 02:
There are a couple ways of looking at it.

[00:07:08] Speaker 02:
Certainly, the Rosada case is one of them.

[00:07:09] Speaker 02:
Also, even under the Acadies case, Acadies explains, and this is a decision that came out after our initial brief, but before our reply brief, and we discuss this in great detail in our reply brief, that the Acadies case points out that there is an exception to this non-reviewability rule.

[00:07:27] Speaker 02:
And that exception is if the act is an ultra-reviewable action, and it's an issue of justifiability that's an issue.

[00:07:33] Speaker 02:
And I think here, when you look at the Trumbull case that we saw in our reply brief, the CCPA in 1933 stated,

[00:07:40] Speaker 02:
that equitable estoppel applies to patent litigation, whether it comes out of the district courts or it comes out of the patent office.

[00:07:48] Speaker 02:
And the Trump case goes on to say that it is, it must be accepted as a law on the subject that a sign or estoppel is an issue that is part of an equitable estoppel analysis.

[00:08:01] Speaker 05:
And at the CCBA- Even assuming equitable estoppel should apply,

[00:08:07] Speaker 05:
You still, how do you differentiate this case from the statute of limitations problem?

[00:08:13] Speaker 02:
I'm not sure if I understand the statute of limitations problem.

[00:08:15] Speaker 02:
The Chettys case.

[00:08:17] Speaker 02:
Well, in that case it's not, there's no CCPA case or federal circuit case that says that the statute of limitations should be construed a certain way.

[00:08:29] Speaker 02:
The board didn't act counter to a CCPA decision in deciding that the underlying

[00:08:36] Speaker 02:
issue in a case.

[00:08:37] Speaker 02:
In this case, they did.

[00:08:38] Speaker 02:
The CCPA states, stated that equitable stopple and the signer stopple is an issue in patent litigation out of the Patent Office.

[00:08:47] Speaker 02:
This board decided that it was not going to follow that law.

[00:08:53] Speaker 02:
That's an ultramarie's action.

[00:08:55] Speaker 02:
5 USC 706 says that we can't, that the scope of your review includes abuse of discretion, actions otherwise against the law,

[00:09:05] Speaker 02:
against the statutory mandate, things of that nature, our position is that this is one of those actions.

[00:09:09] Speaker 00:
How do you deal with the situation that in Acadies, as I understand it, part of the rationale for distinguishing Versada was that in Acadies, in Versada, they were saying, this court was saying that in that situation, you're looking at the board's ultimate ability to determine the validity of a patent.

[00:09:30] Speaker 00:
And so for that reason, it can be reviewed.

[00:09:32] Speaker 00:
But in the situation of a time bar, like a sign or a stopple, it doesn't determine the board's ultimate ability to review the patent.

[00:09:40] Speaker 00:
It's just in this particular case with this particular party.

[00:09:44] Speaker 00:
So therefore, there's no jurisdiction.

[00:09:46] Speaker 00:
I mean, that's the rationale, as I understand it, in a Cateys.

[00:09:49] Speaker 00:
So how do you distinguish a Cateys on that basis?

[00:09:51] Speaker 02:
Well, I don't view the time bar as equivalent to a sign or stopple, first of all.

[00:09:56] Speaker 02:
A sign or stopple is an ethical doctrine as opposed to some legal statutory interpretation.

[00:10:02] Speaker 02:
And that equitable doctrine is that it's unfair, in this case for Robert Shand, the former owner of my client's company, to sell his patent and then later come back.

[00:10:12] Speaker 02:
The equitable distinction there, I think, is important.

[00:10:14] Speaker 02:
Also, I'll point out that in the Acadies case, the who was not important.

[00:10:21] Speaker 02:
It was a when.

[00:10:22] Speaker 02:
It was a time bar.

[00:10:23] Speaker 02:
It was a what and how and when.

[00:10:25] Speaker 02:
Here, we are talking about the who.

[00:10:27] Speaker 02:
We're talking about who actually gets to bring it.

[00:10:29] Speaker 00:
It was a time bar on a who, though.

[00:10:31] Speaker 00:
So it is a who.

[00:10:33] Speaker 00:
It is a question of who can bring it.

[00:10:35] Speaker 00:
And that was the rationale, at least.

[00:10:37] Speaker 05:
Well, indeed, part of the rationality was that somebody else who isn't Time Bar could have brought the suit.

[00:10:47] Speaker 05:
Why couldn't somebody else bring this suit?

[00:10:51] Speaker 02:
Arguably, somebody else could bring the suit.

[00:10:52] Speaker 02:
The distinction is, however, that the

[00:10:57] Speaker 02:
Or didn't even have jurisdiction from them.

[00:10:59] Speaker 05:
The distinction is if somebody else brought the suit, if you're right that equitable stopper works, it wouldn't matter who brought the suit.

[00:11:08] Speaker 05:
They'd still be a stopped.

[00:11:12] Speaker 05:
Isn't that the distinction?

[00:11:14] Speaker 05:
Or is it?

[00:11:16] Speaker 05:
No, because only the Asinore is a stopped.

[00:11:21] Speaker 05:
Oh, so that's not going to work.

[00:11:24] Speaker 02:
At the end of the day, Your Honor,

[00:11:25] Speaker 02:
We have a CCBA case that this court must follow, that the board must follow this court.

[00:11:31] Speaker 02:
They did not follow it in stating that Assigner-Stoppel does not apply to IPR proceedings.

[00:11:36] Speaker 05:
Let's assume we give you that.

[00:11:38] Speaker 05:
You keep going back to that.

[00:11:40] Speaker 05:
But that doesn't help us, because we have to decide whether we can even decide that question.

[00:11:47] Speaker 05:
That's the jurisdiction problem.

[00:11:48] Speaker 02:
Under Acadies, it is stated that the exception to the Acadies rule is if there's an ultra V-raise action.

[00:11:54] Speaker 02:
This would be an ultra bearish action if the board did not follow.

[00:11:58] Speaker 02:
If the board didn't follow any other federal circuit decision, I don't think it'd be a problem to state that it's an ultra bearish action.

[00:12:05] Speaker 02:
They are required to follow your jurisprudence.

[00:12:08] Speaker 02:
If they don't, then even the Cates allows you to open it up.

[00:12:13] Speaker 03:
Mr. Cutler, you wanted to save considerable time for your rebuttal.

[00:12:17] Speaker 03:
Yes, Your Honor.

[00:12:18] Speaker 02:
I will pause here.

[00:12:18] Speaker 03:
And to deal with cross-appeal.

[00:12:19] Speaker 03:
Thank you.

[00:12:20] Speaker 03:
And so we'll move on at this point.

[00:12:23] Speaker 03:
Mr. Mattel, you're for the Patent Office and you're going to take two minutes.

[00:12:30] Speaker 03:
All right, let's see how much you can jam into two minutes.

[00:12:34] Speaker 01:
Well, Your Honor, in light of counsel for Husky's concession that under the court's existing jurisprudence, this court lacks jurisdiction to review this.

[00:12:42] Speaker 01:
I hope that two minutes is excessive.

[00:12:45] Speaker 01:
The principal argument asserted seems to be

[00:12:48] Speaker 01:
Dirty pool.

[00:12:50] Speaker 05:
Dirty pool.

[00:12:55] Speaker 01:
He did say it.

[00:13:01] Speaker 01:
Dirty pool.

[00:13:01] Speaker 01:
Dirty pool.

[00:13:03] Speaker 01:
He did say it.

[00:13:04] Speaker 01:
Dirty pool.

[00:13:08] Speaker 01:
Dirty pool.

[00:13:12] Speaker 01:
Even a clear bar on justiciability can be overwritten in cases where there's a violation of a clear statutory mandate or an egregious error.

[00:13:22] Speaker 01:
In this case, the difficulty with an attempt to apply Klein is that there's no statutory provision that codified or applied the doctrine of Asenora-Staple.

[00:13:31] Speaker 01:
This is an argument that's based on the absence of any statutory mandate.

[00:13:35] Speaker 01:
It certainly shouldn't satisfy the test of a clear statutory mandate that's a predicate for the application of Klein.

[00:13:42] Speaker 05:
Should we sit on this until Quozo comes down?

[00:13:47] Speaker 05:
Will Quozo cast any light on this issue, do you think?

[00:13:51] Speaker 01:
It's a matter within this court's discretion, and I'm hesitant to advise.

[00:13:56] Speaker 01:
The solicitor's office is confident in the briefs filed by the SG and the oral argument.

[00:14:02] Speaker 03:
There certainly wasn't much questioning about that issue in Quozo.

[00:14:07] Speaker 01:
There was not.

[00:14:08] Speaker 01:
We were gratified to see that, and we're confident that the Supreme Court will conclude that the statutory language, final and non-appealable, means that the decision is final and cannot be appealed.

[00:14:18] Speaker 05:
Sometimes when there's just one judge or justice concerned, that can bring things out, can't it?

[00:14:28] Speaker 01:
It's been known to happen in cases, but again, I'm no better at reading tea leaves from Supreme Court oral arguments than anyone else.

[00:14:35] Speaker 01:
It's up for this court to decide whether this case should be held pending the decision here.

[00:14:43] Speaker 01:
As a final point, I would simply point out that this case is almost a textbook example for why the 314D bar is created.

[00:14:49] Speaker 01:
The patent on a repellent presents no challenge at all to the board's determinations of unpatentability.

[00:14:55] Speaker 01:
If it were to prevail in this case, there would still be in the public record a final written decision that these particular claims are unpatentable.

[00:15:01] Speaker 01:
They certainly wouldn't be canceled.

[00:15:03] Speaker 03:
And there isn't a 102 or 103 issue.

[00:15:05] Speaker 01:
No, it's hard to imagine what the patent owner would even do with this patent in that circumstance.

[00:15:10] Speaker 01:
The final written decision would basically be a cookbook for another party to bring an IPR to challenge the same claims.

[00:15:18] Speaker 01:
314D evinces a congressional design.

[00:15:22] Speaker 01:
That's a little speculative, isn't it?

[00:15:24] Speaker 01:
That the next board panel will decide what the earlier one did.

[00:15:29] Speaker 01:
It's possible that new evidence could be presented, but at the very least we have a considered judgment of the Patent Trial and Appeal Board that these claims are unpatentable for these reasons, and all of the arguments are in the record.

[00:15:40] Speaker 01:
314D events is a congressional design that at a certain point these preliminary questions should no longer be litigated, and that the system is better served if the parties and the courts focus their attention on the final determination of patentability in these cases.

[00:15:56] Speaker 01:
Because the clear language of 314D would appear to bar this appeal pending a decision from up high to the contrary, the director would respectfully request that this court dismiss Husky's appeal.

[00:16:07] Speaker 03:
Thank you, Mr. Mattel, Mr. Schmidt.

[00:16:12] Speaker 03:
Thirteen minutes.

[00:16:14] Speaker 04:
Yes, Your Honor, and I would like to reserve two minutes for rebuttal.

[00:16:21] Speaker 04:
May it please the Court

[00:16:25] Speaker 04:
The board erred here as a matter of law by requiring Athena to prove something that it did not need to prove, namely, what did the glasner reference mean by the pineapple and tooth ring mechanism?

[00:16:44] Speaker 04:
Athena's burden was to show that the glasner Choi reference disclosed all of the elements of the challenge claims

[00:16:53] Speaker 04:
in the order recited in the claims.

[00:16:58] Speaker 04:
The board found that pineapple and tooth ring mechanism was somehow magic words.

[00:17:03] Speaker 04:
And Athena needed to explain what those magic words were.

[00:17:07] Speaker 00:
Didn't you explain what they were in your petition?

[00:17:10] Speaker 04:
Yes, Your Honor, we did.

[00:17:12] Speaker 04:
We were very clear.

[00:17:13] Speaker 04:
We referred to the pineapple and tooth ring mechanism being the Choi lock that was disclosed in figure 3A.

[00:17:21] Speaker 04:
And during the argument, I said that a picture is worth a thousand words.

[00:17:26] Speaker 04:
We showed 3A.

[00:17:27] Speaker 04:
And it was very clear from Mr. Link's declaration how that lock worked with the glasner platen to yield the claims.

[00:17:41] Speaker 00:
There's another Glaesner reference that's cited in the patent suit, right?

[00:17:45] Speaker 00:
That is correct.

[00:17:46] Speaker 00:
And that refers to Troy and uses the very same figure that is the pineapple and tooth ring.

[00:17:51] Speaker 00:
Is that right?

[00:17:51] Speaker 04:
Correct.

[00:17:52] Speaker 04:
It uses exactly the same lock that's used in Troy.

[00:17:55] Speaker 04:
And all three patents are owned by the same party.

[00:17:58] Speaker 04:
Basically, what happened here is that Glaesner said you can use the Troy lock.

[00:18:05] Speaker 04:
And when you do that, you end up with the challenged claims.

[00:18:10] Speaker 04:
It is a quintessential case of anticipation by a reference that is created by the incorporation of one reference into another.

[00:18:20] Speaker 03:
Should we decide this issue or send it back to the PTO?

[00:18:25] Speaker 04:
The record is clear.

[00:18:28] Speaker 04:
As a factual matter, Mr. Link's testimony about how Choi and Glasner operate together have been decided.

[00:18:36] Speaker 04:
There are no issues left.

[00:18:38] Speaker 04:
regarding how they work together, and that when they work together, they yield the challenged claims.

[00:18:45] Speaker 04:
So there's no need to remand for any factual findings.

[00:18:49] Speaker 04:
The only challenges that Husky raises are based upon claim constructions that were rejected by the board and not appealed by Husky.

[00:19:02] Speaker 04:
When you apply the claim constructions that the board issued

[00:19:07] Speaker 04:
using Mr. Link's declaration, it is clear that claims 2, 3, 17, and 19 are all anticipated, just like all the other ones.

[00:19:16] Speaker 00:
I'm a little bit confused by your answer because when I look at the PTAP's decision on the request for rehearing, I see that they say even

[00:19:27] Speaker 00:
If we were to consider that there was incorporation, we're not persuaded that the petitioner has met its burden to show that the combination of Gleisner and Choi teach all their set-of-claim limitations.

[00:19:38] Speaker 00:
And I think they do that because they're not sure what the pineapple two-three mechanism is.

[00:19:41] Speaker 00:
But nonetheless, given that, isn't there still some question below about, you know, so the board could consider it if we were to determine that there were incorporation?

[00:19:52] Speaker 04:
Don't we need to remand?

[00:19:56] Speaker 04:
Looking at what the issues were that were raised that would require board review, those issues were all decided.

[00:20:07] Speaker 04:
The standard is that, is there any reasonable fact finder that could reach a different conclusion based on the record?

[00:20:15] Speaker 04:
It's akin to a summary judgment kind of analysis.

[00:20:19] Speaker 04:
And if you look at what claim constructions were adopted by the board and not appealed,

[00:20:26] Speaker 04:
The arguments that Husky raises in this case about movement and those arguments were specifically rejected by the board, so there's nothing left for the board to decide.

[00:20:39] Speaker 04:
All of the elements as set forth in the petition explained in Mr. Link's declaration about gaps and biasing, that really has all been decided based on this record, so there is no need to send it back.

[00:20:54] Speaker 04:
for that purpose.

[00:20:57] Speaker 04:
The error that the board made was it found solely on the basis that Athena had not identified where the pineapple and tooth ring mechanism started and ended.

[00:21:13] Speaker 04:
But as I said, Athena did do that, but more importantly, that wasn't relevant because once

[00:21:23] Speaker 04:
Troy was incorporated in its entirety, and this is the second place where the board erred as a matter of law, because in its decision on reconsideration, it again went back to what they said were the magic words, pineapple and tooth ring mechanism, and said because Athena had not explained what that was, nothing had been incorporated.

[00:21:45] Speaker 04:
But that read out of Glastner, paragraph 49,

[00:21:50] Speaker 04:
which unequivocally stated that the Choi reference or that the references that were cited in Glasner were incorporated by reference.

[00:22:02] Speaker 03:
Should we hold this case for quoso?

[00:22:05] Speaker 04:
Absolutely not, Your Honor.

[00:22:07] Speaker 04:
And the reason is, not only does this board not have jurisdiction, but even if it did, we listed no more than three reasons why the appeal must fail.

[00:22:19] Speaker 04:
The first is that Husky has collaterally stopped from raising this argument.

[00:22:26] Speaker 04:
It raised this argument in two other IPRs.

[00:22:30] Speaker 04:
It was rejected in the two other IPRs.

[00:22:33] Speaker 04:
They didn't appeal that decision.

[00:22:34] Speaker 04:
Their collateral has stopped.

[00:22:37] Speaker 04:
Second, they waived the argument.

[00:22:40] Speaker 04:
They didn't renew it.

[00:22:43] Speaker 04:
in their response, which means we never had an opportunity to respond to the argument.

[00:22:51] Speaker 04:
It wasn't before the board at the time of the final written decision.

[00:22:56] Speaker 03:
But your major point is that the PTAB didn't take it, and that issue's not reviewable.

[00:23:05] Speaker 04:
That certainly, Your Honor, is a primary reason why this court should not do it.

[00:23:10] Speaker 04:
We also point out that the

[00:23:12] Speaker 04:
PTAB's decision is absolutely right on the merits.

[00:23:16] Speaker 04:
Mr. Cutler referred to Ultravires Act and going beyond the statute.

[00:23:22] Speaker 04:
The statute is crystal clear here.

[00:23:26] Speaker 04:
Any person other than the patent owner couldn't be any clearer.

[00:23:32] Speaker 05:
May.

[00:23:33] Speaker 05:
What's that?

[00:23:34] Speaker 05:
May.

[00:23:34] Speaker 05:
May, exactly.

[00:23:35] Speaker 04:
May.

[00:23:36] Speaker 05:
May.

[00:23:36] Speaker 05:
That doesn't mean that they have a case.

[00:23:39] Speaker 05:
That only means they may file.

[00:23:42] Speaker 04:
Correct.

[00:23:43] Speaker 04:
They made petition.

[00:23:46] Speaker 05:
What does that tell us?

[00:23:48] Speaker 04:
It tells you that they have the right to file the petition, and that grants authority to the PTAB to decide whether to review it.

[00:24:04] Speaker 04:
It provides that authority.

[00:24:07] Speaker 04:
And as we made clear, the same language was used.

[00:24:10] Speaker 05:
And the PTAB may say it's not reviewable.

[00:24:13] Speaker 04:
But at that point, once the petition gets filed, then 314D kicks in, right?

[00:24:20] Speaker 04:
Because at that point, then the board has all of the power that's granted under the rest of the statute.

[00:24:29] Speaker 05:
Yeah, but if they say it is reviewable and they're wrong, then what?

[00:24:35] Speaker 04:
And they're wrong?

[00:24:36] Speaker 05:
And then they make a final decision based on a wrong jurisdictional understanding.

[00:24:41] Speaker 05:
What?

[00:24:42] Speaker 04:
That question assumes that... That's the Versada case.

[00:24:49] Speaker 04:
It is a Versada case.

[00:24:50] Speaker 04:
And in the Versada case, it was clear there that the question was, was that patent at issue a CBM patent?

[00:25:00] Speaker 04:
And the statute explicitly limited the board's jurisdiction to CBM statutes.

[00:25:07] Speaker 04:
Here, there's no such limitation.

[00:25:09] Speaker 04:
The Trumbull case,

[00:25:11] Speaker 04:
has no applicability here.

[00:25:13] Speaker 04:
Number one, it was cited only in the reply brief.

[00:25:16] Speaker 04:
It wasn't cited before the floor.

[00:25:18] Speaker 05:
But assuming collateral estoppel, excuse me, applies to these IPR cases.

[00:25:28] Speaker 05:
And there's a clear case here of asinore estoppel.

[00:25:31] Speaker 05:
There's a clear case here of asinore estoppel.

[00:25:34] Speaker 05:
How does that differ from the problem

[00:25:38] Speaker 05:
that it's clear that they have no jurisdiction when the petitioner is barred by our law.

[00:25:48] Speaker 04:
Because Congress was very clear in granting jurisdiction very broadly about who may file the petition.

[00:25:57] Speaker 04:
it very carefully laid out what estoppels apply to these provisions that are enumerated.

[00:26:05] Speaker 05:
Well, I said assuming estoppel, asinore estoppel applies.

[00:26:11] Speaker 05:
Isn't this the same problem that we had in Versata?

[00:26:14] Speaker 05:
That is, the PTAB taking on a case that by our law, assuming asinore estoppel applies.

[00:26:23] Speaker 05:
Wouldn't it be the same problem of their taking on a case that they're not entitled to take on?

[00:26:30] Speaker 04:
I don't think so, Your Honor.

[00:26:31] Speaker 04:
It's a question of what are the limits of the board's jurisdiction over IPR cases.

[00:26:42] Speaker 04:
And there is nothing in the statute that provides that that jurisdiction is limited by a whole host

[00:26:53] Speaker 04:
of doctrines that might or might not apply to this.

[00:26:59] Speaker 05:
Congress was very careful to establish- You're not suggesting that PTAB is not subject to our law, are you?

[00:27:08] Speaker 04:
When you say our law, what do you mean?

[00:27:09] Speaker 04:
The law of this court.

[00:27:13] Speaker 04:
It is subject to the law of this court.

[00:27:16] Speaker 04:
The question obviously is, what is that?

[00:27:17] Speaker 05:
And let's say the law of our court happens for argument purposes to include

[00:27:23] Speaker 05:
Aston or estoppel, then what?

[00:27:27] Speaker 04:
The question becomes, does Aston or estoppel apply in IPR cases?

[00:27:32] Speaker 05:
Let's assume it does.

[00:27:34] Speaker 05:
For argument's sake, just for argument's sake, so we can get back to the jurisdiction issue.

[00:27:42] Speaker 05:
Do we have jurisdiction?

[00:27:44] Speaker 04:
I think at that point, you're assuming that

[00:27:50] Speaker 04:
The hypothetical is set up such that if it is part of the law of this court that a signer estoppel applies in IPR cases, you still have the question of who gets to decide that in the first instance.

[00:28:07] Speaker 05:
Well, that's the question I'm asking you.

[00:28:09] Speaker 04:
Who gets to decide that?

[00:28:10] Speaker 04:
Right.

[00:28:10] Speaker 04:
And the statute, I think, is very clear that the PTAC gets to decide that.

[00:28:13] Speaker 03:
How about after final decision?

[00:28:15] Speaker 03:
After final decision, is that reviewable by us?

[00:28:20] Speaker 03:
Under Versada?

[00:28:23] Speaker 04:
Under Versada, no, because as Versada was clear, just because it ends up in the final decision, it's decided in the final decision, does not mean that it's reviewable.

[00:28:34] Speaker 04:
There are other criteria that apply it.

[00:28:36] Speaker 04:
In the Ashadi's case, it was crystal clear.

[00:28:40] Speaker 04:
The thing to remember here is that the impact of this decision goes beyond Athena, right?

[00:28:46] Speaker 04:
There's a public policy reason to have these patents.

[00:28:50] Speaker 04:
adjudicated and decided and that goes beyond any particular assignee.

[00:28:55] Speaker 05:
But adjudicated and decided correctly, which is why we're here.

[00:29:01] Speaker 05:
You're not suggesting we're irrelevant to the PTAT process, are you?

[00:29:05] Speaker 04:
No, I'm not, but Congress has the power to limit your jurisdiction and respectfully, Your Honor, we believe that it has done so in this case and I would like to say, although I'm now apparently out of time.

[00:29:16] Speaker 03:
We will give you your rebuttal time back.

[00:29:19] Speaker 04:
Thank you very much, Your Honor.

[00:29:20] Speaker 03:
Mr. Kuppler.

[00:29:26] Speaker 03:
Why isn't it clear that the PTO erred with respect to the incorporation by reference?

[00:29:34] Speaker 03:
These are all your Huskies.

[00:29:37] Speaker 03:
I don't mean personally or in terms of your voice, but all these patterns are Huskies.

[00:29:46] Speaker 03:
All these patterns are Huskies.

[00:29:48] Speaker 03:
They were all integrated.

[00:29:50] Speaker 03:
Husky knew what it was doing.

[00:29:52] Speaker 03:
The 950 pattern says the nuts can be secured by any appropriate mechanism described in pattern 153.

[00:30:04] Speaker 03:
That's CHOI.

[00:30:06] Speaker 03:
And further says all cross-reference patterns are hereby incorporated.

[00:30:11] Speaker 03:
And CHOI is the same S&E.

[00:30:17] Speaker 03:
So why

[00:30:19] Speaker 03:
Why doesn't one incorporate the other by reference?

[00:30:22] Speaker 02:
Well, the first issue, Your Honor, suggests, I'm not sure if your question is directed to a per se rule, that once those words incorporation by reference are made, that there's a per se rule that the entirety of the reference document comes into the host document.

[00:30:36] Speaker 02:
I don't think that's the case.

[00:30:37] Speaker 02:
The entire line of Federal Circuit decisions, Harari advanced display back in 2000, all articulate tests for determining when something

[00:30:47] Speaker 02:
and how much of something is incorporated.

[00:30:50] Speaker 02:
If the case was that there's a per se rule that the entirety comes in no matter what, as Athena suggests, those tests are superfluous.

[00:30:57] Speaker 02:
Furthermore, in the advanced display case, the court remanded to the district court to find out because the district court in that case abrogated its duty and let the jury decide what got incorporated.

[00:31:10] Speaker 02:
And the court said, no, it's a question of law.

[00:31:12] Speaker 02:
It's something that the

[00:31:13] Speaker 02:
that the district court should do.

[00:31:15] Speaker 02:
In that instance, it would not have sent it back down, but for the fact that you have to decide what gets incorporated, not that the entirety comes in.

[00:31:25] Speaker 02:
So that's first of all.

[00:31:26] Speaker 02:
The second step might be, well, it does talk about this pineapple and tooth ring mechanism in Glaeser.

[00:31:32] Speaker 02:
And so maybe, arguably, that part does get incorporated in.

[00:31:36] Speaker 02:
This was an issue, as Your Honors can see from the record,

[00:31:40] Speaker 02:
at issue from the very beginning of the IPR went through a decision for reconsideration.

[00:31:44] Speaker 02:
The board very carefully looked at the evidence that was provided by Athena and decided that one of ordinary skill in the art couldn't find out what the pineapple and two-three mechanism is.

[00:31:55] Speaker 02:
Now, my colleague discussed and said, oh, we pointed to figure 3A and we said that

[00:32:00] Speaker 02:
And he said that a picture is worth a thousand words.

[00:32:03] Speaker 02:
The problem with that, however, is that there's a confusion.

[00:32:06] Speaker 02:
What is the lock?

[00:32:08] Speaker 02:
He refers to figure 3A as, quote unquote, the lock.

[00:32:11] Speaker 02:
In these devices, if you look at it, you can look at just figure 5 of the patented issue.

[00:32:16] Speaker 02:
The lock is just the teeth, OK?

[00:32:18] Speaker 02:
So the teeth, your honor, is what all they're saying in that section you're talking about is that the teeth,

[00:32:24] Speaker 02:
are the same all the way throughout.

[00:32:26] Speaker 02:
The locks themselves are completely different.

[00:32:28] Speaker 02:
The mechanisms for how these things interact and are secured are completely different amongst the various patterns.

[00:32:36] Speaker 02:
So that's my, you know, I guess there's four different ways that the board's decision should be upheld.

[00:32:41] Speaker 02:
One is that there's no per se rules I mentioned.

[00:32:43] Speaker 02:
Number two, the board very carefully considered what the pineapple and two-three mechanism was and decided they didn't have enough information.

[00:32:48] Speaker 02:
That's all laid out very clearly.

[00:32:50] Speaker 02:
Number three,

[00:32:51] Speaker 02:
Claims 2, 3, 17, and 19 each require a bias and or a gap.

[00:32:56] Speaker 02:
And that is not disclosed as well.

[00:32:58] Speaker 02:
So even if there was incorporation, there is a missing element.

[00:33:02] Speaker 00:
So is it your view that if we conclude that there was incorporation, you think there should be a remand for the board to determine then, with that understanding, whether the claims are anticipated?

[00:33:15] Speaker 02:
No, Your Honor.

[00:33:16] Speaker 02:
The last reason why the board's decision should be upheld is because they already looked at that.

[00:33:21] Speaker 02:
In the final written decision, the board looked at whether, even if there wasn't corporation, they said that there's no anticipation showing.

[00:33:29] Speaker 02:
And the court cited the net money in case.

[00:33:31] Speaker 02:
And what happened here is they looked at it and they said, hey, we've got this Glaesner patent over here.

[00:33:37] Speaker 02:
It's just talking about a platinum, which is the metal plate.

[00:33:41] Speaker 02:
And it says, well, you can attach the tie bar nuts to the rear wall using

[00:33:47] Speaker 02:
a super mechanism such as the pineapple and two-three mechanism.

[00:33:50] Speaker 02:
So that's in this one reference over here.

[00:33:51] Speaker 02:
In the other reference, you have Troy, which has some other things.

[00:33:53] Speaker 02:
Not all the things that are in the patent, by the way.

[00:33:55] Speaker 02:
And that's clear.

[00:33:56] Speaker 02:
We laid that all out in our briefing.

[00:33:59] Speaker 02:
But what the court, what the board said in that, in this final written decision was, you have not, Athena, met your burden of showing that the prior art... What page are you looking at?

[00:34:10] Speaker 00:
For the final written decision?

[00:34:14] Speaker 00:
Like for the specific part of the final written decision that you're relying on.

[00:34:18] Speaker 02:
Page 30 to 31, I believe.

[00:34:20] Speaker 02:
Let me just make sure.

[00:34:21] Speaker 02:
Yes.

[00:34:23] Speaker 02:
Page 30 over to the top of page 32 is where this is at.

[00:34:27] Speaker 02:
And the board said, even if we have incorporation, you have not shown us that all the elements are laid out as claimed in the claims because

[00:34:35] Speaker 02:
You have this stuff over here.

[00:34:36] Speaker 02:
It's very similar to the net money in case or other cases that this court has decided where, in a single patent, there might be two embodiments of a particular invention.

[00:34:47] Speaker 00:
I don't see that.

[00:34:48] Speaker 00:
You don't see the net money in case?

[00:34:50] Speaker 00:
I'm looking at pages 30 through 32.

[00:34:52] Speaker 00:
Is it on page 30 that you think that they say that?

[00:34:56] Speaker 00:
I just want to know specifically, because I want to make sure I understand your argument.

[00:35:00] Speaker 00:
So I want to know specifically where you're relying on.

[00:35:03] Speaker 00:
Because there are some cases discussed.

[00:35:05] Speaker 00:
3232 has a lot on it.

[00:35:06] Speaker 00:
So before you leave, if you can tell me specifically what you're relying on, that would be helpful.

[00:35:10] Speaker 02:
OK, what I'm relying on on page 30 to 32 is the court said two things.

[00:35:16] Speaker 02:
The final decision.

[00:35:17] Speaker 02:
I want to make sure you look at the final decision.

[00:35:19] Speaker 00:
OK, on page A30, is it the last paragraph?

[00:35:23] Speaker 00:
Is it the first paragraph?

[00:35:24] Speaker 02:
Well, the discussion about arranging is the last paragraph on page 31.

[00:35:28] Speaker 02:
OK.

[00:35:29] Speaker 02:
Without such explanation, as board evidence, we're not persuaded that they've

[00:35:33] Speaker 02:
The petitioners met its burden to show that the various portions of Choi and Glazer, I want you to realize, are combined in the same way as were cited in the claims, cited in the Lindeman case, and going on to cite the Net Money Incase as well.

[00:35:44] Speaker 02:
The point is you have two different documents here that show some things.

[00:35:48] Speaker 02:
And there was no discussion of how these things come together to show the claims as they're presented.

[00:35:55] Speaker 02:
Thank you.

[00:35:55] Speaker 02:
Do you want to see what I'm referring to?

[00:35:58] Speaker 03:
Sure.

[00:35:58] Speaker 03:
Thank you, Mr. Cutler.

[00:35:59] Speaker 03:
Mr. Schmidt has a couple of minutes of rebuttal on the cross appeal.

[00:36:04] Speaker 04:
Thank you, Your Honor.

[00:36:05] Speaker 04:
Let me pick up where Mr. Cotler left off.

[00:36:13] Speaker 04:
What he didn't point out is what the board said is without such explanation and supporting evidence.

[00:36:23] Speaker 04:
That refers to an explanation of the pineapple and tooth ring and supporting evidence.

[00:36:31] Speaker 04:
The board's decision rested entirely upon their conclusion that Athena had failed to describe and explain the pineapple and tooth ring mechanism.

[00:36:42] Speaker 04:
And even if you accept that as true, it is not sufficient because Athena explained through the declaration of Mr. Link in detail how the glasner platen, when used with the choy

[00:37:00] Speaker 04:
And lock is a shorthand.

[00:37:03] Speaker 04:
I think what Mr. Cutler meant is the teeth are the lock member.

[00:37:07] Speaker 04:
The lock is the larger assembly, and Choi refers to it as a clamping and securing system or means.

[00:37:18] Speaker 04:
But what's important, what the magic words here are, the words of the claim.

[00:37:24] Speaker 04:
And what Athena did is what the law requires.

[00:37:27] Speaker 04:
which is describe how the combined reference of Glacier-Choy discloses each of the elements, the lock, the complementary lock member, the systems that move together, did a finite element analysis to explain how the engagement limitations were found in the combined reference inherently.

[00:37:49] Speaker 04:
Athena carried its burden, and the board erred by making it prove something

[00:37:56] Speaker 04:
that it didn't need to prove.

[00:37:57] Speaker 04:
The law of incorporation is crystal clear.

[00:38:03] Speaker 04:
In the Liebel Flarsheim case, the court went beyond what was specifically referred to in the text and looked at the entire reference as it is obligated to do.

[00:38:17] Speaker 04:
We submit that the decision of the board should be reversed and the case should be remanded only to

[00:38:25] Speaker 04:
with instructions that the challenge claims 2, 3, 17, and 19 are unpatentable and should be canceled.

[00:38:36] Speaker 04:
Thank you very much.

[00:38:36] Speaker 03:
Thank you.

[00:38:37] Speaker 03:
Mr. Schmidt will take the case on revisement.