[00:00:00] Speaker 05:
Before we proceed with our arguments today, I'm going to turn it over to Judge Shan, who has a motion.

[00:00:07] Speaker 06:
Yes, I do.

[00:00:08] Speaker 06:
Thank you, Chief.

[00:00:09] Speaker 06:
I'd like to make a motion to have someone admitted to our bar.

[00:00:20] Speaker 06:
And specifically, I move the admission of Samuel Kenneth Witt, who is a member of the bar and is in good standing with the highest court of

[00:00:28] Speaker 06:
the great state of California.

[00:00:31] Speaker 06:
I have knowledge of his credentials, and I'm satisfied that he possesses the necessary qualifications.

[00:00:37] Speaker 06:
Mr. Witt, although I did not know his middle name, is Kenneth, has been my clerk for the past year.

[00:00:44] Speaker 06:
And I know him to be an excellent lawyer with not only a deep understanding of technology, but also the law.

[00:00:53] Speaker 06:
And he's very much helped me over and over again

[00:00:56] Speaker 06:
have a better, deeper understanding of not only the technology in a given case, but also some of the more intricate parts of the law.

[00:01:06] Speaker 06:
And I know if he hadn't been there for me, I might have made a few mistakes along the year.

[00:01:12] Speaker 06:
But luckily, I made no mistakes during the year.

[00:01:15] Speaker 06:
So I thank Mr. Witt for that.

[00:01:17] Speaker 06:
And I also know him to be someone of really high character.

[00:01:20] Speaker 06:
And I'm very impressed with him on a lot of different levels, including his

[00:01:26] Speaker 06:
unusual lunch habits that make Kim his own man.

[00:01:32] Speaker 06:
And so I'm impressed with that, too.

[00:01:34] Speaker 06:
So I humbly move to have him admitted to our bar.

[00:01:38] Speaker 05:
Letting the mistake matter go.

[00:01:42] Speaker 05:
It's a pleasure to grant motion on behalf of the panel.

[00:01:47] Speaker 05:
Please stand.

[00:01:49] Speaker 00:
Congratulations.

[00:02:09] Speaker 05:
The first case for argument this morning is 17-1525, Augusta versus Cisco.

[00:02:18] Speaker 05:
Ms.

[00:02:19] Speaker 05:
Stegman, you're first.

[00:02:21] Speaker 05:
Oh, wait.

[00:02:25] Speaker 05:
So you're doing all of the original initial arguments?

[00:02:29] Speaker 01:
Yes, Your Honor.

[00:02:29] Speaker 01:
So I will be handling Agrista's appeal, and Mr. Powers will handle the cross appeal.

[00:02:34] Speaker 01:
Might please the court.

[00:02:36] Speaker 01:
We are a bit in an unusual situation where both parties agree that the board's claim construction was faulty because it excludes the disclosed embodiment, which describes

[00:02:48] Speaker 01:
Broadcasting in the form of using multicasting, where a transmission is made to one or more devices connected to a network, but not, importantly, to all the devices.

[00:02:59] Speaker 05:
So you agree insofar as the board's construction was wrong, but you disagree.

[00:03:04] Speaker 05:
So why don't you explain to us the difference between your position and your friend's position with regard to the correct claim construction.

[00:03:10] Speaker 01:
Yes, Your Honor.

[00:03:11] Speaker 01:
I think what you'll note when you compare the construction side by side is that Cisco's construction adopts our construction.

[00:03:18] Speaker 01:
and then tax on some language at the end that the transmission occurs without specifying what devices will ultimately receive the data.

[00:03:26] Speaker 01:
And I think it would be useful to point out we all agree that the standard we're applying here is the broadest reasonable interpretation.

[00:03:34] Speaker 01:
And so there can be no dispute that Cisco's construction is more narrow than Arista's construction.

[00:03:40] Speaker 01:
Cisco's construction attempts to adopt and read in wholesale the pervert embodiment.

[00:03:47] Speaker 01:
whereas Arista's construction is broader and yet still reasonable because it comes directly from the language of the specification.

[00:03:55] Speaker 05:
And what's the difference, can you tell us in English the difference between Arista's construction and the board's construction?

[00:04:01] Speaker 01:
So the board's construction, yes, so Arista's construction says transmission to one of our devices.

[00:04:06] Speaker 01:
Devices are in fact in these claims on the network.

[00:04:10] Speaker 01:
But the board's construction says that transmission has to be to each and every one of the devices on the network.

[00:04:16] Speaker 01:
And we should point out that these devices are described in the patent to be.

[00:04:20] Speaker 06:
I have a question about your claim of construction.

[00:04:22] Speaker 06:
But before I get there, just so I don't get lost, when are we going to talk about a sign or a stopper?

[00:04:27] Speaker 01:
That's on the cross appeal.

[00:04:29] Speaker 06:
That's the cross appeal.

[00:04:29] Speaker 01:
That's the cross appeal.

[00:04:30] Speaker 01:
I know that's the sexy issue.

[00:04:31] Speaker 01:
I'm sorry.

[00:04:32] Speaker 01:
It's not mine.

[00:04:33] Speaker 06:
Well, those are your words, not mine.

[00:04:37] Speaker 06:
Let's get, OK, back to claim construction.

[00:04:39] Speaker 06:
And so I was making the point that... My question is, we're talking about claim 29 right now, right?

[00:04:45] Speaker 06:
Yes, Your Honor.

[00:04:47] Speaker 06:
And the independent claim talks about communicating.

[00:04:50] Speaker 06:
And now, claim 29, the dependent claim says, communicate by way of broadcasting.

[00:04:56] Speaker 06:
So that suggests that communicating and broadcasting can't be identical.

[00:05:01] Speaker 06:
And communicate, I think, is essentially nothing more than communicating information to one or more devices.

[00:05:08] Speaker 06:
So that's why I'm wondering why isn't broadcasting something more than just the mere act of sending information to one or more devices.

[00:05:19] Speaker 06:
I mean, it seems like under that theory of claim differentiation, it has to mean something more than just the mere delivery of information to a device somewhere on some network.

[00:05:33] Speaker 01:
So claim one, I think you're right to focus on, it talks about communicating information about the change in configuration.

[00:05:39] Speaker 01:
It does not say to a device I'm communicating, as described in the patent at paragraph, at column seven.

[00:05:46] Speaker 06:
Are you suggesting the word communicate could mean I'm like walk into a closet and then communicate something out in the air and there's nobody that's on the receiving end?

[00:05:55] Speaker 01:
The patent tells us that the communication can occur by a blinking light on the device itself.

[00:06:00] Speaker 01:
So the communication can happen

[00:06:02] Speaker 01:
because there's an indicator light on the device itself that's at column seven around line 25.

[00:06:07] Speaker 01:
So the claim one is really quite broad.

[00:06:09] Speaker 01:
The communication is just letting someone know there's a change in configuration, which may not be a transmission over a network at all, because it could just be the blinking light.

[00:06:19] Speaker 01:
And so what we see when we get to claim 29 is that it's a broadcast, which we know is over a network.

[00:06:25] Speaker 01:
But the key distinction to your honor's question is it's not to each and every device on the network.

[00:06:31] Speaker 01:
because that would exclude this multicasting.

[00:06:33] Speaker 01:
Multicasting is a type of communication where there is an address, the multicast address and people subscribe to that address and the patent tells us that these network security monitors have to subscribe to the multicast address and the patent doesn't say you must have two

[00:06:52] Speaker 01:
And it does not say that each and every single device on the network has to subscribe to that multicast address.

[00:06:58] Speaker 06:
What if we just felt like the flipping the term broadcast, which has a meaning in the art, to encompass everything, including just merely sending an email from node A to node B is not right.

[00:07:19] Speaker 06:
It's just too inclusive.

[00:07:21] Speaker 06:
Is there a backup claim construction that you have?

[00:07:24] Speaker 01:
So I interpret your case law is not allowing me to come up with brand new constructions here on appeal the first time.

[00:07:33] Speaker 06:
And so... Well, what if the panel is left with

[00:07:38] Speaker 06:
being unsatisfied with all the proper claim constructions, whether it's the boards, whether it's Cisco, whether it's Arista.

[00:07:47] Speaker 06:
And obviously, we have some responsibility to land on some kind of claim construction.

[00:07:53] Speaker 06:
What would your backup be to sending an email from Joe to Tom?

[00:08:00] Speaker 01:
And so in the petition, we suggested that kind of an ordinary meeting of the term

[00:08:06] Speaker 01:
was a transmission to, I think it was, all members of a group.

[00:08:12] Speaker 01:
So that's not everything on the network, all members of the group.

[00:08:16] Speaker 01:
Now?

[00:08:16] Speaker 06:
I guess your answer would really be, you have to look at the specification and the usage of the term broadcast.

[00:08:22] Speaker 06:
And there's a clear notion in the specification, in your view, that whatever broadcast means, it has to include multicasting.

[00:08:32] Speaker 01:
That's absolutely right, Your Honor.

[00:08:34] Speaker 06:
at a minimum, a claim construction has to encompass perhaps the ordinary meaning of broadcast because there was nothing in the specification that specifically displaced that ordinary meaning, but also be something inclusive enough that it encompasses the conception of multicasting.

[00:08:52] Speaker 01:
Yes, and it's important because the multicasting that's described in the patent where there's an address that other devices subscribe to is exactly the kind of broadcasting

[00:09:03] Speaker 01:
described in the Iwayama reference.

[00:09:06] Speaker 01:
And so from our perspective, that if you want more devices, a multicast address that's subscribed to is disclosed in the Iwayama reference.

[00:09:16] Speaker 01:
And there can be no reasonable dispute over whether that's the case.

[00:09:20] Speaker 01:
And so from our perspective, if you were to adopt a new construction under this court's cases, there really would be no need to ask the board to revisit whether Iwayama includes that.

[00:09:32] Speaker 01:
Because Iwayama is squarely on all fours with any kind of definition that would be appropriate for the term broadcasting.

[00:09:40] Speaker 01:
And a case came out after a briefs, Owens Corning, 875, Fed 3rd, 896, that discusses situations where this court does not need to remand even when you change construction.

[00:09:52] Speaker 01:
And so under our construction, Iwayama definitely has it.

[00:09:55] Speaker 01:
I think under any construction that could stand scrutiny under this court's claim construction principles, Iwayama has broadcasting.

[00:10:05] Speaker 01:
So the last thing I'll touch on quickly is if there's no change in the construction, there's not substantial evidence to support the board's finding.

[00:10:13] Speaker 01:
I think the board did not really address and appreciate the second aspect.

[00:10:20] Speaker 01:
There's multiple embodiments within Iwayama.

[00:10:22] Speaker 01:
One is sending out an email to a group of devices, certainly.

[00:10:25] Speaker 01:
But it also talks about how the email can be too slow.

[00:10:28] Speaker 01:
There's a lag time.

[00:10:30] Speaker 01:
And so it talks about pushing out a notification, such as a text message,

[00:10:34] Speaker 01:
to the whole network, to the network.

[00:10:35] Speaker 01:
And that was cited by us in our papers to the board, argued to the board.

[00:10:40] Speaker 01:
You'll see in paragraphs 55.

[00:10:42] Speaker 06:
Real quickly, how do you define network?

[00:10:45] Speaker 06:
Because that seemed to be one of the puzzling questions below.

[00:10:49] Speaker 06:
Network could be including an understanding that every and any single device that you're capable of being linked up and communicating with

[00:11:01] Speaker 06:
is part of a very large, broad network.

[00:11:05] Speaker 06:
But the network could also be subgroups that you create.

[00:11:12] Speaker 06:
And then so there's this private group of terminals that are able to communicate with each other.

[00:11:19] Speaker 06:
And creating that group, maybe it's an email group, email message group,

[00:11:26] Speaker 06:
creation of that group is a network in and of itself.

[00:11:30] Speaker 06:
Obviously not as big as the broad general network, but maybe that's also a network.

[00:11:35] Speaker 01:
So I think that's a good question, that that term was not up for construction before the board, it was given its ordinary meaning, and Judge Chan, I think you're quite right that under the broadest readable interpretation of network could be the internet, could be every possible thing that could possibly be connected, including my refrigerator.

[00:11:50] Speaker 06:
The plane doesn't say network, though.

[00:11:52] Speaker 06:
It doesn't, but when you read it... The claim construction says network.

[00:11:54] Speaker 06:
That's right.

[00:11:54] Speaker 06:
And so now we're doing a construction of a construction.

[00:11:57] Speaker 01:
That's a very fair point.

[00:11:58] Speaker 01:
I think in the context of the 597 patent, we're talking about switches and routers that are connected to both the internet, the wider internet, as well as corporate networks and smaller networks.

[00:12:08] Speaker 01:
So to answer your question, I think under what would be the broadest reasonable interpretation of network, I mean, it would be both.

[00:12:14] Speaker 01:
I mean, I think network can be considered

[00:12:18] Speaker 01:
Everything, and it can be seen as smaller groups, like you see in aspects of the Iliyama reference.

[00:12:24] Speaker 05:
OK.

[00:12:24] Speaker 05:
Why don't we move on to the other section?

[00:12:26] Speaker 05:
Thank you.

[00:12:45] Speaker 04:
Thank you, Chief Judge Prost.

[00:12:46] Speaker 03:
And may it please the Court, John O'Quinn on behalf of Cisco.

[00:12:49] Speaker 03:
While I'm happy to answer questions the panel might have with respect to the broadcast limitations, I'd actually like to start with the issue of a sign or a stopple.

[00:12:57] Speaker 03:
Because if the Court addresses that issue, that goes to all of the claims in the 597 patent and would resolve all of the issues with respect to the 597 patent.

[00:13:06] Speaker 03:
And a sign or a stopple, of course, is a substantive patent law doctrine that, in the words of Justice Frankfurter, quote, has been part of the fabric of our law throughout the life of the nation.

[00:13:15] Speaker 05:
Well, before we get to the merits of a sign or stopper, we have to get to the question of whether or not it's reviewable at all.

[00:13:22] Speaker 04:
Absolutely, Chief Judge Prost.

[00:13:24] Speaker 05:
And your view on that is?

[00:13:26] Speaker 03:
It is certainly an issue that is reviewable by this court for the reasons explained by this court in both Versada and credit acceptance.

[00:13:34] Speaker 03:
And indeed, I don't think that there's any principled distinction between the issues in this case and the issues that were in credit acceptance.

[00:13:41] Speaker 03:
To take a step back, as Versada explained, institution and invalidation are two distinct actions by the PTAB that do not become the same just because the agency decides certain issues at both stages of the process.

[00:13:55] Speaker 03:
And here, there's nothing about the issue of a sign or estoppel that is uniquely relevant to institution any more than the statutory estoppels that were at issue in credit acceptance, which this court found governed at, quote, any stage of the proceedings.

[00:14:09] Speaker 03:
as well as in the district court and in the IITC.

[00:14:12] Speaker 03:
And indeed, precisely because, yes?

[00:14:15] Speaker 06:
I think we've thought more about the power of the institution, the board, to undertake a review as opposed to a sign or a stopfall, which is more about the eligibility of a given entity to pursue an IPR.

[00:14:33] Speaker 06:
So isn't there a distinction there?

[00:14:35] Speaker 03:
So Judge Chin, there is hypothetically a distinction there.

[00:14:39] Speaker 03:
And it's a distinction that this court had relied on in Husky.

[00:14:42] Speaker 03:
But I think it's a distinction that no longer exists after Wi-Fi 1.

[00:14:45] Speaker 03:
In Wi-Fi 1, the time bar, of course, applied to an individual.

[00:14:50] Speaker 03:
And similarly, the statutory estoppel that was at issue in credit acceptance.

[00:14:56] Speaker 03:
By its own terms, if you look at 315E or 325E, those statutory estoppels are not a limit on the power of the board.

[00:15:04] Speaker 03:
They say that a petitioner may not pursue or maintain an IPR.

[00:15:13] Speaker 03:
And the exact same rationale would apply here to the doctrine of assign or estoppel.

[00:15:18] Speaker 03:
To put it differently, precisely because assign or estoppel is a substantive issue, whether or not it has relevance, whether or not it is something that the board considers or that the director, I should say, considers at the institution phase does not render it irrelevant at the merits phase.

[00:15:33] Speaker 03:
And when you get to the merits phase, this court can consider it just like you could consider the merits decision in Versailles, just like you could consider the merits decision in credit acceptance.

[00:15:47] Speaker 03:
Husky, of course, by its own terms, was only addressing an institution decision.

[00:15:52] Speaker 03:
The only issue that was raised in Husky was whether or not the board was required or the director was required to apply

[00:15:59] Speaker 03:
a sign or a stopple at the institution phase.

[00:16:01] Speaker 03:
It was not raised subsequently.

[00:16:03] Speaker 03:
In that sense, what was at issue there was only the very kind of preliminary decision that Wi-Fi 1 says is not reviewable, as opposed to the final decision at the merits phase.

[00:16:12] Speaker 06:
Did Husky say that these kinds of decisions on whether to apply a sign or estoppel are closely related to the decision to institute an enterprise review?

[00:16:26] Speaker 06:
Because it is closely related, therefore, it's not something that is reviewable.

[00:16:33] Speaker 06:
That decision on whether a sign or estoppel does or does not guard its petitioner is not something that's reviewable.

[00:16:41] Speaker 03:
So Judge Chin, there were two parts to the analysis in Husky.

[00:16:44] Speaker 03:
The first was to ask the question, was the issue closely related to the institution decision?

[00:16:52] Speaker 03:
The second part was then this dichotomy between, was it a limit on the power of the board, or was it a limit on who could file?

[00:16:59] Speaker 03:
I think actually both parts of that analysis have now been overtaken by Wi-Fi 1.

[00:17:04] Speaker 03:
If you look at page 18 of the slip opinion in Wi-Fi 1,

[00:17:08] Speaker 03:
it specifically addresses what does the closely related to idea mean.

[00:17:12] Speaker 03:
And what the Supreme Court says in Cuso about closely related is the question is whether or not the argument being advanced by the patent owner depends on something that is closely related.

[00:17:24] Speaker 03:
We're not relying on 311.

[00:17:26] Speaker 03:
We're not saying the board violated 311.

[00:17:29] Speaker 03:
Just like in Cuso, the argument by the patent owner was that the board had violated 312.

[00:17:34] Speaker 03:
Our argument is post-institution,

[00:17:36] Speaker 03:
The board was required to apply this on the merits, under 316E, for example, in determining whether or not the petitioner could meet its burden as to patentability.

[00:17:46] Speaker 03:
OK, well, now we're getting into the merits of the argument, which is fine.

[00:17:50] Speaker 05:
I'm having a hard time seeing what that has to do with this matter, why that statutory provision

[00:17:58] Speaker 05:
that deals with who has the burden on patentability.

[00:18:01] Speaker 05:
That seems to be a separate and distinct question to me.

[00:18:05] Speaker 03:
Well, my point in referencing 316, Chief Judge Prost, was just simply to note that there are any number of reasons that a party may not be able to bear to meet its burden.

[00:18:16] Speaker 03:
For example, the application of collateral estoppel may be a reason that a party cannot bear its burden.

[00:18:22] Speaker 03:
And the only point that I was trying to make is that

[00:18:24] Speaker 03:
that this is something that the board, just like the statutory estoppel at issue in credit acceptance, that the board has to apply in rendering its final written decision.

[00:18:33] Speaker 03:
And it is not, even if you think that it is relevant to the 311A question, it is not uniquely relevant to the 311A question.

[00:18:41] Speaker 03:
And that actually sort of, I think, brings us to sort of the merits of the assigner estoppel issue.

[00:18:45] Speaker 03:
And the board offers two interrelated reasons for refusing to apply assigner estoppel.

[00:18:51] Speaker 03:
It first says that,

[00:18:52] Speaker 03:
When Congress wants an equitable defense to be applied, Congress will say so expressly.

[00:18:57] Speaker 03:
And then it points to other PTAB decisions relying on Section 311A, which 311A, of course, merely provides that a person who is not the owner of a patent may file an IPR petition.

[00:19:09] Speaker 03:
Now, neither of these justifications can explain casting away a 140-year-old doctrine of substantive patent law.

[00:19:17] Speaker 03:
And the first point I think is the most important.

[00:19:18] Speaker 05:
A doctrine that the board never applied in the inter-parties re-examination.

[00:19:22] Speaker 03:
Well, to my knowledge, Chief Judge Proce, the only time that that was before the board was once in a non-precedential, unpublished decision by the board in the context of an inner party's re-examine.

[00:19:37] Speaker 03:
And that is certainly not a substantive gloss on the law that Congress is presumed to adopt.

[00:19:43] Speaker 03:
I mean, if you look at the Supreme Court's decision in JAMA versus ICE, the Supreme Court's clear that

[00:19:48] Speaker 03:
Even a couple of Court of Appeals decisions is not enough to try that kind of gloss.

[00:19:52] Speaker 06:
What I'm trying to figure out in looking at the structure of the statute, we have 311, which tells us who is eligible to pursue an IPR.

[00:20:03] Speaker 06:
I think that's one way to read it.

[00:20:07] Speaker 06:
315A and 315B and 315E, which tell us, identify categories of people who are not allowed to pursue an IPR.

[00:20:20] Speaker 06:
And then we have the Trademark Act and the ITC statute, which both say, in those particular administrative proceedings, here in the statute, we're telling you that a party can advance equitable defenses.

[00:20:37] Speaker 06:
And here, for the AIA, with respect to these patent office proceedings, there's no such corresponding statutory provision.

[00:20:48] Speaker 06:
And so I'm trying to figure out, isn't there an inference there that we should be considering, given that the statute for the patent board is silent on this.

[00:20:59] Speaker 06:
There was no historical evidence that the patent office ever

[00:21:05] Speaker 06:
apply to sign or estoppel.

[00:21:07] Speaker 06:
And then these other places, Congress specifically said, yes, you ITC consider equitable defenses.

[00:21:14] Speaker 06:
Yes, you trademark board, you consider equitable defenses.

[00:21:18] Speaker 06:
You patent board, I'm not saying anything about.

[00:21:20] Speaker 06:
So what am I supposed to take away from all that?

[00:21:23] Speaker 03:
Sure.

[00:21:23] Speaker 03:
No, thank you, Judge Chin.

[00:21:24] Speaker 03:
And I think your question packs in probably most of the points that I want to try to address in the time that I've got left.

[00:21:31] Speaker 03:
So let me break it down.

[00:21:32] Speaker 03:
First, I think underlying your question is

[00:21:35] Speaker 03:
What's the starting point?

[00:21:36] Speaker 03:
What is the background principle?

[00:21:38] Speaker 03:
When Congress doesn't specifically speak one way or the other, what is it that you are to assume?

[00:21:43] Speaker 03:
The Supreme Court has answered that question time and time again.

[00:21:46] Speaker 03:
It answered it in Lexmark recently, where it says, where it, quote, a common law principle is well established, courts may take it as a given that Congress has legislated with an expectation that that principle will apply.

[00:21:57] Speaker 03:
And it reiterated that in B&B hardware, which is directly relevant here, where the court said,

[00:22:02] Speaker 03:
that you could take it as a given that Congress had legislated with the expectation the principle of collateral estoppel would apply.

[00:22:09] Speaker 03:
And that's true not just with respect to courts.

[00:22:10] Speaker 06:
So just so I understand your argument,

[00:22:13] Speaker 06:
the Trademark Act did not need to have that provision about equitable defenses being available in contested proceedings in front of the Trademark Board.

[00:22:22] Speaker 06:
Nor did the ITC statute need to say that part about equitable defenses being available for those to be applied, because there's just some backdrop principle where in these administrative proceedings, of course, you can always apply these equitable principles.

[00:22:36] Speaker 03:
That's absolutely right, Judge Chin.

[00:22:38] Speaker 06:
So it's a little superfluous then that those statutes say what they say.

[00:22:42] Speaker 03:
I would say that it is belt and suspenders that those statutes say what they say.

[00:22:46] Speaker 03:
And indeed, if you look at the ITC statute and you look at the underlying decision in the Intel versus ITC matter, namely the decision by the commission itself, the commission wasn't saying, well, we can apply a sign or stop it because the statute says this.

[00:23:02] Speaker 03:
It recognized that actually by its terms, the defense, a sign or stop it wasn't a defense in the sense that the statute was referring to.

[00:23:09] Speaker 03:
It was just saying, well, this is yet another data point that reaffirms

[00:23:12] Speaker 03:
that Congress intended background principles to apply.

[00:23:15] Speaker 03:
And I think if you look at this court's decision in Rios versus Nicholson, which involved application to an Article I court, which is effectively an administrative agency for these purposes, there you had the issue about the postmark rule and whether or not that was compatible with the mailbox rule.

[00:23:34] Speaker 03:
And the court came to the conclusion that you continue to apply the background common law presumption

[00:23:40] Speaker 03:
unless it is incompatible with the statute itself.

[00:23:43] Speaker 03:
And there is nothing here that's incompatible.

[00:23:44] Speaker 03:
When you look at what 311A is about, it is about whether or not you can proceed ex parte or whether you have to have standing.

[00:23:54] Speaker 03:
That's what it's about.

[00:23:55] Speaker 03:
In other words, the patent owner cannot proceed ex parte.

[00:23:58] Speaker 03:
And a petitioner doesn't have to be a party who has standing.

[00:24:01] Speaker 03:
That's actually in contrast to the trademark statute, a different part than what you were referring to, Judge Chin.

[00:24:07] Speaker 03:
But if you look at 15 USC 1064,

[00:24:09] Speaker 03:
which governs who can file trademark cancellation proceedings, it says that those can be filed by a person who can demonstrate that they would be injured by the continued registration of the trademark.

[00:24:20] Speaker 03:
Congress didn't draw that line here.

[00:24:21] Speaker 03:
Congress said you don't have to have standing in the sense that you don't have to show that you would be able to be injured.

[00:24:26] Speaker 03:
And at the end of the day, that's what 311 is all about.

[00:24:29] Speaker 03:
It is about who can file a petition.

[00:24:31] Speaker 03:
It's not about whether or not you can ultimately prevail on your petition.

[00:24:35] Speaker 03:
And there may be any number of reasons

[00:24:37] Speaker 03:
whether it's because of the law of obviousness or anticipation, or whether it's because of collateral estoppel, which the Board or the Patent Office applies in other contexts.

[00:24:45] Speaker 03:
And that's another point here, that the Patent Office has taken an inconsistent approach.

[00:24:49] Speaker 03:
Time and time again, this Court has recognized that as a general matter, the Patent Office has the power to apply equitable and non-statutory doctrines.

[00:25:03] Speaker 03:
That's what this Court's decision in Henry Bogues was all about, saying,

[00:25:06] Speaker 03:
that we're not going to deny to the Patent Office the power that a district court has.

[00:25:12] Speaker 03:
And I don't think that you can look at the specific prescriptions in 315 and say, well, that is Congress answering the question.

[00:25:19] Speaker 03:
The things that you're talking about in 315 uniquely arise in the context of IPRs.

[00:25:27] Speaker 03:
Congress had to create them in order for them to exist.

[00:25:31] Speaker 03:
Otherwise, there wouldn't have been

[00:25:32] Speaker 03:
a time bar, there wouldn't have been an estoppel if you had already filed an IPR.

[00:25:38] Speaker 03:
Congress didn't have to create a sign or estoppel.

[00:25:41] Speaker 03:
It had been there for 140 years, just like Congress didn't have to expressly say.

[00:25:45] Speaker 06:
315B is a classic form of litigation estoppel.

[00:25:49] Speaker 06:
I mean, it seems like if it didn't exist, we would still use it.

[00:25:57] Speaker 03:
But 315B is different from normal collateral estoppel.

[00:26:03] Speaker 03:
315B prohibits you and your privies from proceeding if you've been served with a complaint.

[00:26:10] Speaker 03:
Regardless of the resolution of that case, if you've been served with a complaint and one year goes by, you can't file an IPR.

[00:26:18] Speaker 03:
That's not the common law.

[00:26:20] Speaker 03:
That's not the way that the common law would work with respect to either raised judicata or collateral estoppel.

[00:26:25] Speaker 03:
Now, there may be some common law abstention principles that potentially get applied, but those are.

[00:26:31] Speaker 06:
I know you're running out of time, but let me ask you a quick question about, let's say we were to conclude that the statute has a gap, and now the patent board has stepped in and issued a presidential opinion where there's 275 board judges that have

[00:26:50] Speaker 06:
stepped into that gap, and it's been endorsed by the director of the agency.

[00:26:57] Speaker 04:
Do they get Chevron deference?

[00:26:59] Speaker 04:
Right.

[00:26:59] Speaker 06:
It suggests that could have the kinds of hallmarks of granting Chevron deference.

[00:27:07] Speaker 06:
Why not give Chevron deference to the presidential board?

[00:27:10] Speaker 03:
Sure.

[00:27:10] Speaker 03:
Well, first, Judge Tin.

[00:27:12] Speaker 03:
The only presidential board decision that is in this space is the Athena decision.

[00:27:16] Speaker 03:
And by its terms, it is limited only to the issue of institution, not whether or not the board applies a sign or a stopple when you get to the merits phase.

[00:27:26] Speaker 03:
So even if you thought that Chevron deference would apply to a presidential board decision, you do not have a presidential board decision addressing the issue that is before the court, which is

[00:27:37] Speaker 03:
whether or not the board is required, not when it's acting as the designee of the director and instituting.

[00:27:43] Speaker 03:
And there are any number of policy reasons that the director might decide, I don't want to consider this at the institution phase, because maybe the evidence isn't going to be able to be marshaled.

[00:27:51] Speaker 03:
It's not the kind of thing that the petitioner is going to usually be in a position to pre-but.

[00:27:56] Speaker 03:
They don't get a response before the institution decision to marshal the evidence to decide whether or not a sign or a stop-up would apply.

[00:28:02] Speaker 03:
That's an institution issue.

[00:28:04] Speaker 03:
And the Athena decision, Athena v Husky, only addresses institution.

[00:28:09] Speaker 03:
The non-precedential decisions that are at issue in this case and in the following case, of course, I think this court majority in Aqua Products agreed that a non-precedential board decision does not get Chevron deference.

[00:28:22] Speaker 03:
If you were to think that the board's decision in Athena was relevant here, I would submit there are two reasons it should not get deference.

[00:28:28] Speaker 03:
And the court's review should be de novo.

[00:28:30] Speaker 03:
Number one is it is not a reasonable interpretation of law.

[00:28:33] Speaker 03:
Again, the Supreme Court has made clear when they legislate, it's with certain background principles in mind.

[00:28:40] Speaker 03:
And the board flips that on its head.

[00:28:42] Speaker 03:
It's just wrong.

[00:28:43] Speaker 03:
And second, what the board purports to do in interpreting Section 311A, it's not trying to fill a gap in a policy perspective.

[00:28:51] Speaker 03:
It's applying principles of statutory interpretation.

[00:28:55] Speaker 03:
And as the Anbang DC Circuit held in Atkins versus FEC, if what you're doing is just

[00:29:01] Speaker 03:
interpreting judicial precedent, that's not entitled to Chevron deference.

[00:29:05] Speaker 05:
Okay, your time is way off, but if you want to take two minutes, no more, and talk about broadcast to claim construction issue, we'll allow that.

[00:29:14] Speaker 03:
Thank you, Chief Judge Prost.

[00:29:16] Speaker 03:
Just two very quick points with the court's indulgence.

[00:29:20] Speaker 03:
The first is, Arista's proposed claim construction would be an unreasonable reading of the term broadcast.

[00:29:27] Speaker 03:
It would encompass

[00:29:29] Speaker 03:
the hypothetical that Judge Chin was asking about, where person A sends an email to person B. That cannot possibly be the meaning of the term broadcast.

[00:29:37] Speaker 03:
Now, the definition that we had advocated before the board was one that would encompass the concept of multicast.

[00:29:46] Speaker 03:
That is, that you were sending it out to one or more, but you do not know who the recipients are going to be.

[00:29:53] Speaker 03:
And I think that's sort of the key issue, is that you don't know who the recipients are going to be.

[00:29:59] Speaker 03:
Now, I don't think that you get to this issue not only because of the assign or estoppel hurdle, but also because I think that there is an institution issue in terms of how it was that Arista pitched its petition and the alternative arguments it made to the board.

[00:30:13] Speaker 03:
Arista didn't advocate that the board invalidate based on Iwi Yama, based on the construction that they were advocating.

[00:30:24] Speaker 03:
That was an alternative argument.

[00:30:26] Speaker 03:
And the last point that I'd make on this, Your Honor,

[00:30:28] Speaker 03:
is that to the extent that you think that you do reach the board's construction and that the board's construction is wrong, even if you were to adopt Arista's construction, which you should not, that would still have to result in a remand.

[00:30:44] Speaker 03:
Because at the end of the day, I think that Iwayama is using the term network in a very different way than it's being used in the patent.

[00:30:50] Speaker 06:
Thank you.

[00:30:50] Speaker 06:
Do you think Iwayama discloses a form of multicasting?

[00:30:55] Speaker 03:
I don't.

[00:30:56] Speaker 03:
think that it does, Judge Chin, because of the... I think it's ultimately about group chats, and I don't think that that's about multicasting to network devices in the way that's contemplated by this patent.

[00:31:09] Speaker 05:
Thank you.

[00:31:10] Speaker 05:
Will we stress any better?

[00:31:11] Speaker 04:
Thank you, Chief Judge Prost.

[00:31:30] Speaker 02:
Thank you, Your Honor.

[00:31:31] Speaker 02:
I'd like to begin by addressing, there's three specific issues with regard to Assign a Restapel, and I'd like to take them in order with the Court's permission.

[00:31:40] Speaker 02:
The first is reviewability.

[00:31:42] Speaker 02:
The second is whether the statute is clear that the Board's construction of its ability to eliminate Assign a Restapel is correct.

[00:31:51] Speaker 02:
And the third is the Chevron deference issue.

[00:31:53] Speaker 02:
With regard to reviewability, the key question

[00:31:57] Speaker 02:
I think is the one that Judge Chen posed, which isn't Versada and Wi-Fi 1 and QOZO all dependent on the question of whether you're enforcing a limit on the statutory authority of the board to act.

[00:32:10] Speaker 02:
That was true in Versada as to whether it was a covered CBM patent.

[00:32:15] Speaker 02:
And it was true specifically in Wi-Fi 1 because the board did not have statutory authority to act.

[00:32:21] Speaker 02:
And the response from Council for Cisco

[00:32:25] Speaker 02:
on that particular question was that Wi-Fi 1 eliminated the issue of whether it's relying on authority to act.

[00:32:33] Speaker 02:
And that is squarely inconsistent with the very last paragraph of Wi-Fi 1 explaining its reasoning.

[00:32:40] Speaker 02:
And it's important enough that I'd like to read it.

[00:32:42] Speaker 02:
Quote, enforcing statutory limits on an agency's authority to act is precisely the type of issue that courts have historically reviewed, citing cases.

[00:32:52] Speaker 02:
As a statutory limit on the director's ability to institute IPR, the 315B time bar is such an issue.

[00:33:01] Speaker 02:
We hold that time bar determinations under 315B are revealed by this court.

[00:33:06] Speaker 02:
That is the very last concluding sentence of the opinion before the conclusion section.

[00:33:14] Speaker 02:
That explains the reasoning of the Wi-Fi 1 court.

[00:33:17] Speaker 02:
And to say that Wi-Fi 1 eliminated the distinction between

[00:33:20] Speaker 02:
enforcing and reviewing limits on – statutory limits on the agency's ability to act and other things is simply, I think, not an accurate reading of Wi-Fi 1.

[00:33:31] Speaker 02:
And when you look at what the agency's decision on the Sino-Rostofl is, clearly not a statutory limit on the ability – the agency's ability to act.

[00:33:41] Speaker 02:
It is a discretionary decision as to what defenses that agency will entertain in its review conducting its job.

[00:33:50] Speaker 02:
And it's consistent with what Quozo and Wi-Fi One highlighted as being the purpose of IPRs, which are to address and eliminate patents that should not be in the system.

[00:34:03] Speaker 06:
What if there was no such thing as section 315 in the act?

[00:34:08] Speaker 06:
No 315 A, B, or E. And then the petitioner was someone who had litigated the case

[00:34:20] Speaker 06:
as a defendant who challenged the patent and lost in its final decision, patent's invalid.

[00:34:27] Speaker 06:
I mean, patent's valid.

[00:34:29] Speaker 06:
And then, after that final decision, they tried to challenge the patent again through an IPR.

[00:34:38] Speaker 06:
And there's nothing in the statute that actually says there's a bar to that under some notion of collateral stopover as you've got it.

[00:34:48] Speaker 06:
And the patent owner says, wait a second.

[00:34:51] Speaker 06:
You can't let this person in, because they've already had their day in court.

[00:34:56] Speaker 06:
And then the board said, we don't have to consider that.

[00:35:00] Speaker 06:
We don't have to consider that common law adopted.

[00:35:03] Speaker 06:
Do you think the board would be right or wrong in saying that?

[00:35:07] Speaker 02:
On the question of reviewability, I don't think it would be a statutory limit on the board's ability to act.

[00:35:14] Speaker 02:
And therefore, it would fall on the other side of the line.

[00:35:18] Speaker 02:
that proceeding would be allowed to go forward in light of the history that you've described, I think then you're sort of getting into a Fresenius question.

[00:35:29] Speaker 02:
Because the court has addressed that issue separately as to which proceeding trumps when you have two proceedings.

[00:35:35] Speaker 02:
But on the question of whether the board

[00:35:37] Speaker 06:
The question is, does the party who lost in that prior litigation on trying to knock down the patent, should they be allowed to invoke this proceeding in front of the agency, basically having to do over a literal second bite?

[00:35:56] Speaker 02:
Absent something in the statute saying no, and absent the application of a doctrine that makes sense to say no, then they would have an opportunity at the bite.

[00:36:06] Speaker 02:
The question more relevant here would be, if that agency invoked some other doctrine, not statutory limit on its ability to act, to deny that person access to that proceeding, would that be reviewable?

[00:36:23] Speaker 02:
I think the answer is no.

[00:36:25] Speaker 02:
Because that then would be that agency's determination of how it conducts its business, not whether it's permitted to conduct its business.

[00:36:32] Speaker 02:
And those decisions are not reviewable.

[00:36:35] Speaker 05:
Why don't you move on to part two before you run out of time, because you've got three parts.

[00:36:38] Speaker 02:
Thank you, Your Honor.

[00:36:40] Speaker 02:
So part two is a question of whether the agency's interpretation of its authority is proper.

[00:36:48] Speaker 02:
311 is clear.

[00:36:50] Speaker 02:
It says a person who is not an owner may file.

[00:36:53] Speaker 05:
But what about your friend's foremost argument, which is this was written in the backdrop?

[00:37:00] Speaker 05:
of, you know, hundreds of years of principles, and that that's, that governs.

[00:37:07] Speaker 02:
I agree completely that it's written with a backdrop, but I disagree with the conclusion.

[00:37:10] Speaker 02:
The backdrop is this.

[00:37:12] Speaker 02:
That same language, effectively, was in pre-AIA inter-parties re-exams.

[00:37:19] Speaker 02:
That was the test about who could approach the Patent Office for that particular proceeding.

[00:37:24] Speaker 06:
Wait a second.

[00:37:25] Speaker 06:
Senator Stockwell was never in the inter-parties re-exam statute.

[00:37:28] Speaker 02:
No, I'm saying the language about who may precede a person who's not the owner.

[00:37:32] Speaker 02:
So that same language existed pre-AIA.

[00:37:36] Speaker 02:
And pre-AIA, the Patent Office interpreted that language to preclude the use of the sign or estoppel in pre-AIA inter-parties re-exam proceedings.

[00:37:50] Speaker 02:
And importantly, the important piece of that is that as the Supreme Court's case in Lorillard makes clear, Congress is presumed

[00:37:58] Speaker 02:
to know about that pre-AIA interpretation by the PTO of that same language.

[00:38:04] Speaker 05:
So when... But your friend's answer to that, I think, at least in part, is that they only did that once.

[00:38:09] Speaker 02:
Not true.

[00:38:11] Speaker 02:
There's once in 2007 for sure, but you don't need more than once.

[00:38:15] Speaker 02:
There's also, as we've cited, Mr. Chisholm's treatise makes clear, so it's not like it's hidden.

[00:38:23] Speaker 02:
And Mr. Chisholm's treatise cites a 1997 decision

[00:38:27] Speaker 02:
as well.

[00:38:28] Speaker 06:
Well, what if we were to say this one decision, non-presidential, not enshrined in the manual or regulations or anywhere else, is just simply too obscure and too slender of a read for us to assume that Congress was well aware of it and wrote the AIA against that lone, random-ish decision.

[00:38:55] Speaker 06:
So then where

[00:38:58] Speaker 06:
What else do you have?

[00:38:59] Speaker 02:
I don't believe that would be consistent with Laura Lard, because I don't think Laura Lard is dependent on there being more than one decision or something else.

[00:39:07] Speaker 06:
The agency issues thousands and thousands and thousands of decisions every year.

[00:39:12] Speaker 06:
It's the tiniest of needles in that haystack.

[00:39:17] Speaker 02:
True.

[00:39:18] Speaker 02:
I don't think Laura Lard depends on an actual fact of knowledge by the Congress.

[00:39:22] Speaker 02:
I think it's a presumption.

[00:39:25] Speaker 02:
But I take your point.

[00:39:26] Speaker 02:
Then I think the important fact is that, and this is drawn, this is relied upon by the Court of Husky, is that the PTAB, unlike the ITC, does not have a statutory provision saying all equitable defenses shall be applicable.

[00:39:45] Speaker 02:
That's conscious.

[00:39:45] Speaker 02:
That's not random.

[00:39:47] Speaker 02:
The ITC specifically has something saying all equitable defenses are applicable.

[00:39:52] Speaker 02:
That's why a sign or a stopper applies to the ITC.

[00:39:55] Speaker 02:
That same provision does not exist in the PTAB.

[00:39:58] Speaker 02:
And you cannot assume that that omission was negligent.

[00:40:04] Speaker 02:
That omission has meaning.

[00:40:06] Speaker 02:
And therefore, it is certainly reasonable for the PTAB to say, as it did in Husky, that a sign or a stopper as an equitable defense is one we are not going to apply, consistent with our objective, our statutory objective, which is to clean up bad patents.

[00:40:26] Speaker 02:
And that statutory objective was relied on heavily by the Supreme Court at Quozo as being a basis for its decision.

[00:40:33] Speaker 02:
The PTAP has that mission.

[00:40:35] Speaker 06:
And if it decides that... So there's nothing in the Patent Act that says anything about the Patent Office having the power to use prosecution latches or obviousness-type double patenting or inequitable conduct or other doctrines that are rooted in

[00:40:55] Speaker 06:
you know, case law outside of the statute.

[00:40:59] Speaker 06:
Is it your view that the agency shouldn't be using any of those doctrines?

[00:41:03] Speaker 02:
It's my view that the agency is free to decide which of those doctrines is consistent with its statutory purpose.

[00:41:09] Speaker 02:
And the statutory purpose is to clean up bad patents.

[00:41:12] Speaker 02:
And if it says, I have a petition in front of me that makes clear this is a bad patent, I am not going to stay my hand merely because of an equitable doctrine that we've said

[00:41:22] Speaker 02:
shouldn't be applied.

[00:41:23] Speaker 02:
I'm going to follow my statutory mission to clean up bad patents.

[00:41:27] Speaker 02:
And those other doctors may or may not be as related to that.

[00:41:29] Speaker 06:
That sounds more of a deference question, discretionary question.

[00:41:33] Speaker 06:
We're trying to figure out, you know, what does the statute permit or not permit the agency to do?

[00:41:41] Speaker 02:
The statute clearly does not prohibit the agency on its face from deciding how it's going to conduct its business.

[00:41:54] Speaker 02:
And the statute's omission of a directive that all equitable defenses shall be applied is huge.

[00:42:04] Speaker 05:
Wait.

[00:42:04] Speaker 05:
So is it your view that it's up to the PTO, given the statutory, given 311, the PTO can go either way and it's decided, as Judge Chen said, it sounds like a deference thing.

[00:42:15] Speaker 05:
Or is it your view that the statutory language is so clear that this is it?

[00:42:21] Speaker 02:
On a sign or a stoppile, I believe the statutory language is so clear.

[00:42:25] Speaker 02:
Any person not an owner may file.

[00:42:27] Speaker 05:
So your view is that if the Patent Office decided for whatever reason that they should follow what the courts have done, that would be contrary to the statute?

[00:42:38] Speaker 02:
It would be.

[00:42:38] Speaker 02:
It would be contrary to the statute because it's not obligated to apply all equitable defenses, as the ITC is.

[00:42:44] Speaker 02:
It is obligated by statute to allow anyone not an owner to file.

[00:42:48] Speaker 02:
And if you apply the doctrine of a sign or a stoppile,

[00:42:51] Speaker 02:
and do not permit assignors to file, then you are violating your statutory authority.

[00:42:57] Speaker 02:
Okay.

[00:42:58] Speaker 05:
Part three, deference.

[00:42:59] Speaker 02:
Part three is deference.

[00:43:01] Speaker 02:
So I heard three arguments made with regard to deference, but I think it's quite clear that this is within the agency's authority to act.

[00:43:10] Speaker 02:
So there's really no question that this is something where Chevron deference would normally be accorded.

[00:43:17] Speaker 02:
The first argument that was made was that... What are we deferring to here?

[00:43:21] Speaker 02:
the presidential decision in the Husky.

[00:43:23] Speaker 05:
Okay, and you disagree with your friend that that really went to this issue?

[00:43:26] Speaker 02:
I do.

[00:43:27] Speaker 02:
You read that decision.

[00:43:28] Speaker 02:
It happened to be in the context of a petition to institute, but the reasoning was not limited to that in any way.

[00:43:35] Speaker 02:
The reasoning says, our statute says, anyone not an owner may file, and therefore a sign or a stopper should not be applied.

[00:43:45] Speaker 02:
It wasn't saying it could be applied at the merits phase.

[00:43:47] Speaker 02:
That would be silly.

[00:43:47] Speaker 02:
You don't apply it

[00:43:49] Speaker 02:
at the institution phase but do apply it in the merits phase, that would certainly not be a fair reading of that decision.

[00:43:54] Speaker 02:
So I think that issue is easily resolved.

[00:43:58] Speaker 02:
The second was it's not a reasonable interpretation.

[00:44:01] Speaker 02:
Well, I disagree completely with that.

[00:44:04] Speaker 02:
It's reasonable because of the fact that the PTAB doesn't have the same language as the ITC about all equitable defenses.

[00:44:12] Speaker 02:
It's reasonable in the sense that there was a PTAB decision

[00:44:16] Speaker 02:
in the pre-AIA language saying, we interpret that to preclude an application of a sign or a staple.

[00:44:23] Speaker 02:
Whether it was a needle in a haystack or not, that is a fact.

[00:44:27] Speaker 02:
It was reflected in CHISM.

[00:44:28] Speaker 02:
It was reflected in a district court decision as well.

[00:44:31] Speaker 02:
And to say that those facts should just be ignored because it's only a single decision, I think, is not fair to the PTAT.

[00:44:37] Speaker 02:
They've made that decision.

[00:44:38] Speaker 06:
Have you read our package of aqua products opinions?

[00:44:41] Speaker 06:
I have.

[00:44:41] Speaker 06:
OK.

[00:44:42] Speaker 06:
And what do you think?

[00:44:44] Speaker 06:
Do you think those opinions collectively foreclose the view that the board, by issuing a presidential opinion, can get Chevron deference for that presidential opinion, assuming there is some gap or ambiguity in the statute, and then they attempt to explain why they make one choice over the other in the face of the statute?

[00:45:12] Speaker 02:
Two thoughts on that, Judge Shen.

[00:45:13] Speaker 02:
I've read them carefully because they're obviously directly relevant to this question.

[00:45:17] Speaker 02:
They're addressing a slightly different question.

[00:45:20] Speaker 02:
They're, they touch irrelevant, of course, but they do not address directly the question of whether a presidential decision by the PTAD would or would not be the type of action that would be entitled to deference.

[00:45:31] Speaker 02:
And if they were interpreted to do that, that would be squarely inconsistent with the Supreme Court's decision in Mead.

[00:45:39] Speaker 02:
Mead says unambiguously,

[00:45:42] Speaker 02:
that you do not need formal rule and comment decision making.

[00:45:47] Speaker 02:
And in fact, specifically says in footnote 12, I believe, that formal adjudications can be the basis for Chevron deference.

[00:45:58] Speaker 02:
There are three examples that they give in footnote 12 and in the text.

[00:46:02] Speaker 02:
One is the nation's bank case.

[00:46:04] Speaker 02:
That was merely a letter from the controller.

[00:46:08] Speaker 02:
It wasn't rule making, decision making.

[00:46:10] Speaker 02:
It was simply a letter.

[00:46:12] Speaker 02:
from the comptroller, that was given deference.

[00:46:15] Speaker 05:
Chevron type deference?

[00:46:16] Speaker 02:
Yes.

[00:46:17] Speaker 02:
The INS case versus Aguirre, which is 526 US 415, also cited in footnote 12 of Meade, was simply a prior Bureau of Immigration Agency's decision, a court decision.

[00:46:32] Speaker 02:
The National Railroad case, also in footnote 12 in Meade, also just a prior decision.

[00:46:38] Speaker 02:
And so I don't think we can read

[00:46:41] Speaker 02:
the aquaproducts cases to go so far as to say that you do not give Chevron deference to a prior precedential decision.

[00:46:49] Speaker 02:
And let's be clear, PTAB decisions aren't routinely granted presidential status.

[00:46:56] Speaker 02:
There's a whole process for that, as Judge Chen knows very well.

[00:46:59] Speaker 02:
Not very many are accorded that status.

[00:47:03] Speaker 02:
This one was accorded that status in 2017, four years after the decision was rendered.

[00:47:08] Speaker 02:
So it was very significant that it was done so.

[00:47:11] Speaker 02:
And the idea that that decision with that in premature of the entire agency would not be given Chevron deference I think is squarely inappropriate and certainly foreclosed by me.

[00:47:23] Speaker 02:
And so I think there's not really an argument that you would not give Chevron deference to the agency's interpretation of its ability to act and how it's conducting its business.

[00:47:36] Speaker 05:
Thank you.

[00:47:48] Speaker 01:
Thank you.

[00:47:49] Speaker 01:
I will try to be under a minute.

[00:47:51] Speaker 01:
The only thing I wanted to address that was brought up was this notion that somehow we can't argue that Iveyama discloses broadcasting if you were to adopt our construction

[00:48:00] Speaker 01:
And I would submit respectfully that throughout the proceedings and the petition and the reply and the oral argument, there could be no question that we were arguing that Iwi Yaman met the broadcasting limitation in the combination.

[00:48:13] Speaker 01:
And did we use the specific words?

[00:48:17] Speaker 01:
It has one or more devices?

[00:48:19] Speaker 01:
We did not.

[00:48:19] Speaker 01:
I will tell you, those three words do not appear.

[00:48:22] Speaker 01:
But we argued it met the limitation under much more narrow constructions.

[00:48:26] Speaker 01:
And by saying it met,

[00:48:27] Speaker 01:
the one or more groups of terminals or even under Cisco's construction, which was exactly ours with that material tacked onto it.

[00:48:36] Speaker 01:
We said it met that construction as well.

[00:48:39] Speaker 01:
Everyone was on notice.

[00:48:40] Speaker 01:
There can be no gotcha here in terms of our arguments consistently that Iwayama discloses broadcasting under our construction, their construction, the board's construction, the construction you may think on your own.

[00:48:52] Speaker 01:
Iwayama has it, so it's not me.

[00:48:56] Speaker 04:
Thank you, Chief Judge Prost.

[00:49:03] Speaker 03:
Responding to the points that Mr. Powers made, more or less in order.

[00:49:06] Speaker 03:
First, if a sign or a stopper were viewed as being purely an institution issue, they would create the anomaly of, number one, stripping Cisco of what would otherwise be a complete substantive defense to patent invalidity against Arista in any other forum, in district court, in the ITC, in any other forum,

[00:49:25] Speaker 03:
and doing so without any judicial review, all without Congress expressly saying so.

[00:49:31] Speaker 03:
That is fundamentally inconsistent with the, quote, long tradition of judicial review of government actions that alter the rights of an affected person, as this court said in Versada.

[00:49:41] Speaker 03:
Now, when my friend was arguing and saying that Wi-Fi 1 and Versada both just go to the board's power, he left credit acceptance off that list.

[00:49:52] Speaker 03:
Credit acceptance is indistinguishable from what you have before you.

[00:49:57] Speaker 03:
It's the same type of estoppel.

[00:49:59] Speaker 03:
Yes, it's in the statute.

[00:50:00] Speaker 03:
But by its terms, the way it's written, it's not written as a limitation on the board's power.

[00:50:04] Speaker 03:
It's written as a limitation on the person.

[00:50:06] Speaker 03:
And indeed, Wi-Fi 1 did reject the notion of the who versus what.

[00:50:11] Speaker 03:
The panel decision in Wi-Fi 1, Akades, those had been viewed as a limitation on who.

[00:50:18] Speaker 03:
And that's what Husky relied on.

[00:50:20] Speaker 03:
That's gone after Wi-Fi 1.

[00:50:22] Speaker 03:
And in fact, I think at page 18 of the slip opinion of Wi-Fi 1, the court makes clear what it has in mind as far as what is likely unrevealable.

[00:50:32] Speaker 03:
It's the unrevealability being, quote, limited to the director's determinations closely related to the preliminary patentability determination or the exercise of discretion not to institute.

[00:50:44] Speaker 03:
And it recognizes that the preliminary patentability determination is not reviewable because the final patentability determination is.

[00:50:50] Speaker 03:
And that's where we're at.

[00:50:51] Speaker 03:
We're at the failure to apply a sign or a stopple in the final patentability determination.

[00:50:56] Speaker 03:
Now, with respect to the issue of deference, I think it is very clear, Judge Chin, that at least a plurality of this court in aqua products

[00:51:07] Speaker 03:
critiques the idea of giving Chevron deference even to presidential board decisions.

[00:51:16] Speaker 03:
That plurality relies on Mead.

[00:51:18] Speaker 03:
There's the Insinio motor cars case.

[00:51:21] Speaker 03:
And it would be strange to say that the board would effectively get deference in deciding what is a substantive issue of patent law.

[00:51:28] Speaker 03:
That would be inconsistent with

[00:51:30] Speaker 03:
This court's observations in Cuso at 793 F3rd at 1279, that while through notice and comment rulemaking it can do procedural things, it can't shape substantive patent law.

[00:51:42] Speaker 03:
And that's a point that this court made looking at an earlier statute in Cooper v. Dudas at 536 F3rd at 1336.

[00:51:51] Speaker 03:
Mead recognizes, look at what it is that Congress

[00:51:54] Speaker 03:
contemplated that the agency would do, and what Congress contemplated is that if the agency wanted deference, it could do so through notice and comment rulemaking.

[00:52:02] Speaker 03:
So I think it'd be inappropriate to defer to the board's decision here, but in any event, even if you do, it's ultimately unreasonable.

[00:52:08] Speaker 03:
And the reason it's unreasonable is twofold.

[00:52:12] Speaker 03:
Mr. Powers relies, again, on this unpublished, obscure decision in Henry Harvey.

[00:52:19] Speaker 03:
I don't think that given the Supreme Court's decision in JAMA versus ICE, which says Court of Appeals decisions,

[00:52:24] Speaker 03:
It can be too obscure to recognize that there's a consensus on what the language means, that you can rely on that.

[00:52:31] Speaker 03:
And even if you could, Congress was executing a fundamental shift in going from inter partes re-exam to inter partes review.

[00:52:39] Speaker 03:
It was moving from an examinational system to an adjudicatory adversarial system.

[00:52:44] Speaker 03:
And a signer estoppel, like collateral estoppel, is the kind of thing that applies in these adversarial proceedings.

[00:52:52] Speaker 03:
And that brings me to my last point.

[00:52:53] Speaker 03:
Mr. Powers suggests that collateral estoppel itself shouldn't apply.

[00:52:59] Speaker 03:
That's a shocking proposition, given how fundamental that is in the case law.

[00:53:04] Speaker 03:
It is inconsistent with what the Supreme Court said in B&B hardware.

[00:53:08] Speaker 03:
And it is inconsistent with what the Patent Office does in every other context, where it applies things like collateral estoppel, judicial estoppel,

[00:53:15] Speaker 03:
and notions of even prosecution history, which are effectively a form of estoppel that the board applies in doing claim construction in these cases.

[00:53:23] Speaker 03:
So a sign or estoppel should apply.

[00:53:25] Speaker 03:
It should bar Arista's arguments.

[00:53:28] Speaker 03:
And the decisions with respect to the 597 should be reversed.

[00:53:31] Speaker 03:
I'm happy to answer any questions you may have.

[00:53:35] Speaker 03:
Thank you.

[00:53:35] Speaker 04:
Thank you, Chief Judge Crost.

[00:53:39] Speaker 03:
All right.