[00:00:00] Speaker 04: Our next case is Bennett Regulator Guards, the Atlanta Gaslight Company, number 171555. [00:00:34] Speaker 04: Mr. Porter, whenever you're ready. [00:00:47] Speaker 02: Thank you, Your Honor. [00:00:51] Speaker 02: May it please the court? [00:00:54] Speaker 02: I'm Wayne Porter on behalf of Bennett Regulator Guards Inc., the appellate. [00:00:59] Speaker 02: The board committed reversible error when it instituted Interparte's review [00:01:04] Speaker 02: because Atlanta Gas filed the petition for inter-parties review more than one year after it had been served with a complaint patent infringement. [00:01:14] Speaker 02: The board created an exception to Section 315B that finds no support in the legislative history or in the statute itself. [00:01:25] Speaker 02: Because a trial never should have been instituted, the final written decision should be [00:01:31] Speaker 02: vacated and expunged. [00:01:33] Speaker 01: Let me ask you a question about that. [00:01:35] Speaker 01: Assuming you're correct and that the statute means what it says and says what it means and if you're served with the complaint, you've been served. [00:01:46] Speaker 01: What are the entire consequences? [00:01:49] Speaker 01: You say we should vacate the board's decision? [00:01:53] Speaker 02: Yes. [00:01:54] Speaker 01: What about the board's decision with regard to sanctions? [00:01:57] Speaker 02: I think that that would stand. [00:02:00] Speaker 02: Because? [00:02:01] Speaker 02: The main reason is, and there's... Let's just back up. [00:02:06] Speaker 01: So when the board receives a petition for review that's out of time, what should it do? [00:02:15] Speaker 01: It should throw it away, right? [00:02:16] Speaker 01: It should send it back... Not institute, I would say. [00:02:20] Speaker 01: We don't even open our door, right? [00:02:22] Speaker 02: Yes. [00:02:23] Speaker 01: Right. [00:02:24] Speaker 01: So if that were the case, how could they get the sanction? [00:02:28] Speaker 02: Well, because they improperly opened the door, conducted a trial, and during the course of the trial, there was misconduct by Atlantic Health. [00:02:38] Speaker 01: Do you have a case that stands for the proposition that the sanctions proceeding is independent of the other aspects of the proceeding, so as to survive even the fact that the petition was of no force and effect? [00:02:53] Speaker 02: Yes. [00:02:54] Speaker 02: I have two cases. [00:02:55] Speaker 02: Cooter and Gale versus Hart-Marx, number one. [00:02:58] Speaker 02: It's a Rule 11 case, number two. [00:03:05] Speaker 02: Not handy. [00:03:06] Speaker 02: I can get it for you. [00:03:08] Speaker 02: The other is Willie versus Coastal Corporation, which is a more recent Supreme Court case that validates the same principle. [00:03:17] Speaker 02: The idea being the attorneys and the parties before the court are subject to regulation by the court. [00:03:26] Speaker 02: And even though subject matter jurisdiction may not even exist, the court still has the power to enforce sanctions against the parties and the attorneys. [00:03:37] Speaker 01: OK, so we're on that topic. [00:03:38] Speaker 01: I couldn't find a case. [00:03:43] Speaker 01: Let me ask a question this way. [00:03:45] Speaker 01: My understanding is that on the monetary sanctions against Atlanta, the number hasn't been selected yet. [00:03:53] Speaker 01: Is that correct? [00:03:53] Speaker 01: That's correct. [00:03:54] Speaker 01: That still hasn't happened? [00:03:55] Speaker 01: That has not been determined. [00:03:56] Speaker 01: Well, if this case were coming from a U.S. [00:03:59] Speaker 01: district court and there had been a sanctions issue, a determination that sanctions were appropriate, but the sum of money had not been established, then this court would not have authority to deal with the sanctions issue until the award was finalized. [00:04:21] Speaker 01: That's view engineering against robotics. [00:04:25] Speaker 01: So that's from a district court. [00:04:27] Speaker 01: I haven't found a case of sanctions from the patent office where the number hasn't been determined yet. [00:04:34] Speaker 02: I'm not aware of one. [00:04:35] Speaker 02: I guess you're suggesting it raises the possibility of being sent back and then coming back up here for the determination of the propriety of the award, whatever it is. [00:04:45] Speaker 02: I think that's a possibility. [00:04:51] Speaker 02: So. [00:04:53] Speaker 02: The board's decision was grounded on an admitted legal fiction that dismissal of the complaint resulted in nullification of the service of the complaint such that the statute should not apply. [00:05:10] Speaker 02: There are a number of reasons why that is wrong. [00:05:14] Speaker 02: First of all, the statute is clear and unambiguous. [00:05:18] Speaker 02: There are a number of Federal Circuit and Supreme Court cases that say when you have a clear, unambiguous statute that there is no room... That's the rub, isn't it? [00:05:28] Speaker 01: I mean, the argument is, your argument is that the statute is unambiguous and therefore any regulation or any view to the contrary would be of no effect. [00:05:38] Speaker 01: Correct. [00:05:38] Speaker 01: What happens if I look at the statute and I say, does the statute answer the question? [00:05:46] Speaker 01: The question is, what [00:05:48] Speaker 01: force in effect is a summons where the case has been dismissed without prejudice. [00:05:56] Speaker 02: I don't know that that's an issue. [00:05:57] Speaker 01: It's like a gap. [00:05:58] Speaker 01: It's like an issue that isn't really resolved by the language of the statute itself. [00:06:05] Speaker 02: I don't believe it's up for a government agency to make a sort of policy determination as to what to do with this alleged gap because that's Congress's job. [00:06:16] Speaker 02: Do you think there's a gap? [00:06:18] Speaker 02: No. [00:06:20] Speaker 01: Well, you have to say that, because the gap is what let Chevron come into play. [00:06:24] Speaker 02: Well, this statute deals with the jurisdiction of the board in the first instance. [00:06:30] Speaker 02: And what we're talking about here is the board creating a ruling that, in effect, expands its own jurisdiction. [00:06:35] Speaker 02: That's improper under, well, COASO, SAS, [00:06:43] Speaker 02: I think the WIFI versus Broadcom decision in January of this year. [00:06:48] Speaker 04: What if there was like notice and rulemaking allowing comment and such where they said the rule for this gap-filling situation is that if the complaint is dismissed without prejudice, we're not going to treat it as a time bar. [00:07:03] Speaker 04: If there was something like that, would that change your view at all? [00:07:06] Speaker 02: In other words, if a regulation had been put in place? [00:07:10] Speaker 02: No. [00:07:12] Speaker 02: Ultra virus, extrajudicial. [00:07:16] Speaker 02: It's not the job of the Patent Office to determine what it can do beyond the words of the statute. [00:07:21] Speaker 02: It's your view because a complaint was served? [00:07:23] Speaker 02: That's it, a complaint was served. [00:07:24] Speaker 04: It doesn't matter what happened later. [00:07:26] Speaker 02: Yes. [00:07:27] Speaker 02: And there's other reasons why that should apply. [00:07:30] Speaker 02: This court itself, for example, has jurisdiction over... Only if a complaint was served improperly. [00:07:40] Speaker 01: Say, for example, the local rules require you to serve the complaint in a certain fashion, and it wasn't served in that fashion. [00:07:47] Speaker 02: There's a body of law on what constitutes service and what constitutes a complaint. [00:07:52] Speaker 02: So I think it would be appropriate to inquire as to whether or not, in fact, the complaint had been served. [00:07:58] Speaker 01: So there is room for interpretation, if you will, on what constitutes the service of a complaint. [00:08:05] Speaker 02: I would think that you would have to determine, was it, in fact, served? [00:08:10] Speaker 02: Whatever service means. [00:08:13] Speaker 01: Whether it was in fact served, but it was in fact served, but it was served incorrectly. [00:08:18] Speaker 01: Well, Atlanta Gas has said. [00:08:19] Speaker 01: In my hypothetical, I mean to say the service requires you to use ABC service company, and they used EF service company. [00:08:27] Speaker 01: It was served. [00:08:28] Speaker 01: There's no question about that literally, right? [00:08:30] Speaker 01: Yes, that's true. [00:08:31] Speaker 01: You'd leave a gap there for interpretation? [00:08:35] Speaker 02: Atlanta Gas has said that rule four has to be strictly complied with. [00:08:39] Speaker 02: It's been complied with in this case. [00:08:41] Speaker 02: There is no legitimate argument that this complaint was served, and it was a complaint. [00:08:46] Speaker 02: So I know you're dealing with a hypothetical, but I don't know how far we could carry that because we have a properly served complaint. [00:08:56] Speaker 01: Well, our job is to explore the parameters. [00:08:59] Speaker 01: I mean, I understand you're playing meaning real clearly, and we're going to hear from the other side when they get up about the fact that there is some [00:09:06] Speaker 01: window of gapping or of room for interpretation here. [00:09:11] Speaker 01: Well, it has been a longstanding policy, has it not? [00:09:17] Speaker 01: Hasn't the board regularly greeted petitions for review that were filed more than a year after the service of a district? [00:09:25] Speaker 01: You mean since the initiation of the AIA? [00:09:28] Speaker 02: Yeah. [00:09:29] Speaker 02: I would argue that their interpretations build on a foundation of sand, that these cases [00:09:35] Speaker 02: that they rely on, in fact, don't stand for what this fiction is alleging. [00:09:38] Speaker 01: And we have case law in our jurisdiction, not from the IPRs, but in other settings where we have treated the dismissal of a complaint without prejudice as if the complaint never issued, as if the sum has never issued. [00:09:52] Speaker 01: We have a couple of cases. [00:09:53] Speaker 02: Like Beck versus Caterpillar, for example? [00:09:57] Speaker 02: Let me put it this way. [00:10:01] Speaker 02: The case law that the board relied on [00:10:04] Speaker 02: had nothing to do with going back in time and pretending that the complaint never was served so as to create a new statute of limitations. [00:10:11] Speaker 02: Are you referring to Bonneville and Graves? [00:10:13] Speaker 02: Yes. [00:10:14] Speaker 02: Yes. [00:10:15] Speaker 02: And also the cases cited by Atlanta Gas. [00:10:19] Speaker 02: You can look, for example, at Beck versus Caterpillar. [00:10:21] Speaker 02: These cases essentially are tolling cases or saving statute cases that don't adjust or attempt to adjust the initial [00:10:33] Speaker 02: trigger that started the statute of limitations. [00:10:37] Speaker 02: In Beck, for example, Mr. Beck got an adverse ruling from his union, and that, under federal law, triggered a six-month statute of limitations to file a complaint. [00:10:53] Speaker 02: He timely filed a statute of complaint. [00:10:56] Speaker 02: He filed his complaint in federal court. [00:10:58] Speaker 02: And along the way, he dismissed it and then later attempted to file after the six-month period had run. [00:11:04] Speaker 02: He argued that the Illinois saving statute should be imported so as to grant him extra time in which to file the second complaint. [00:11:15] Speaker 02: The court said, no, you have a federal statute with a federal statute of limitations, and it's our policy not to import saving statutes from the state. [00:11:28] Speaker 02: So you filed out of time. [00:11:29] Speaker 02: And that's more or less what happened here. [00:11:33] Speaker 02: In the first IPR filed by Atlanta Gas, they filed timely. [00:11:37] Speaker 02: Proceedings on that case concluded about a year later. [00:11:44] Speaker 02: And then approximately a month after the proceedings were concluded, Atlanta Gas files a second IPR. [00:11:52] Speaker 02: But that second IPR occurred more than a year after service of the complaint, just like in Beck. [00:11:58] Speaker 02: the statute ran. [00:12:00] Speaker 02: But the board says, no, we're going to rely on cases that deal with tolling, let's say, to go back in time and pretend that the initial triggering event never happened. [00:12:12] Speaker 04: I want to ask you about the Majunkin case. [00:12:16] Speaker 04: I looked in the appendix at JA 998, and it appears as if that case was also dismissed without prejudice. [00:12:24] Speaker 02: Is that correct? [00:12:26] Speaker 02: That was dismissed [00:12:27] Speaker 02: Fairly recently, what happened there was, well, it was dismissed pursuant to a tolling agreement. [00:12:38] Speaker 02: So that case has not necessarily gone away. [00:12:42] Speaker 02: But see, there's a good example of what could happen to a patent owner who could be unfairly prejudiced, because the McJunkin case was dismissed more than a year after the complaint had been served. [00:12:58] Speaker 02: So under Atlanta gases theory, M'Junkin at this, after what, four years, could now come in and say, well, statute never started to run. [00:13:07] Speaker 02: I'm good to go again. [00:13:09] Speaker 02: That doesn't seem fair to the patentee. [00:13:12] Speaker 02: So I think it cuts both ways. [00:13:14] Speaker 02: And Congress thought about this sort of thing. [00:13:16] Speaker 02: I mean, right in the text of 315B is an exception. [00:13:20] Speaker 02: The exception being in the case of Joinder, the statute of limitations doesn't apply. [00:13:26] Speaker 02: Now, the fact that Congress provided for a single exception within the statute itself implies that there were no other exceptions that are possible. [00:13:39] Speaker 02: You're entering your rebuttal time. [00:13:40] Speaker 04: Would you like to save your time? [00:13:42] Speaker 02: Yes, I'll save the rebuttal time. [00:13:45] Speaker 02: There's some other points I have. [00:13:47] Speaker 02: I guess I could address them in a rebuttal. [00:13:49] Speaker 01: Well, let me just say this. [00:13:50] Speaker 01: The merits of the case are very interesting, so that opens the door in case you want to use your time to respond to them on the merits. [00:13:56] Speaker 02: All right. [00:13:57] Speaker 02: Thank you. [00:13:59] Speaker 01: Courtesy. [00:14:05] Speaker 00: Good morning, and may it please the court. [00:14:09] Speaker 01: What's your take, Mr. Joseph Brown, if we agree with your adversary and say that your client [00:14:15] Speaker 01: stubbed his toe on the timing on 315B, he says we should vacate except for sanctions. [00:14:23] Speaker 01: Do you agree with that? [00:14:25] Speaker 00: I think you still have to vacate. [00:14:26] Speaker 00: I agree with him at this point. [00:14:29] Speaker 00: I agree with him at this point, which is that if you have a... I'm going to ask you a question. [00:14:31] Speaker 01: Vacate except for the sanctions. [00:14:33] Speaker 01: That's his position, assuming he's right on the 315 issue. [00:14:37] Speaker 00: I think you still have to vacate and remand on sanctions. [00:14:39] Speaker 00: And I say vacate and remand, this is why. [00:14:42] Speaker 01: We agree that if... Sanctions are still alive, even though the merits are dead. [00:14:48] Speaker 00: But they're changed. [00:14:49] Speaker 00: Pardon me? [00:14:50] Speaker 00: But changed, which is why I said vacate and remand. [00:14:52] Speaker 00: The reason it's changed is that part of the premise for sanctions is whether there's any harm, right? [00:14:59] Speaker 00: And proportionality and harm. [00:15:01] Speaker 00: And if we're going to decide as if the IPR never happened, [00:15:05] Speaker 00: then I think that does change the, I think that changes the board's analysis. [00:15:08] Speaker 00: One, then it gets really hard to show harm and proportionality. [00:15:12] Speaker 00: And so I do think that at a minimum, and the other thing is the boards seem to be trying to maybe strike someone with a compromise. [00:15:18] Speaker 00: We're not going to dismiss the suit. [00:15:19] Speaker 01: You agree that we can't reach the sanctions, the merits of sanctions itself, because there's been no monetary reward? [00:15:26] Speaker 00: No, you can, and here's why. [00:15:28] Speaker 00: This is the very, you can. [00:15:30] Speaker 01: We can reach it, notwithstanding the robotics? [00:15:33] Speaker 00: And the reason is, [00:15:35] Speaker 00: This is the very unusual case in which pendant appellate jurisdiction is appropriate. [00:15:39] Speaker 00: The reason being that Bennett's appeal properly raises the sanctions order. [00:15:43] Speaker 00: Properly raises whether they argue that they were entitled to dismissal as a sanction. [00:15:48] Speaker 00: That's one of their arguments. [00:15:49] Speaker 00: Not one of their better arguments, but one of their arguments. [00:15:52] Speaker 00: And so as part of our defense to that, one of our arguments in response to their appeal is no sanctions are appropriate. [00:15:57] Speaker 00: There's no basis for any sanction. [00:15:59] Speaker 00: With that being before you as part of Bennett's appeal, we're then raising essentially the same point [00:16:04] Speaker 00: as part of our cross appeal. [00:16:06] Speaker 00: And under the... So it's the Supreme Court's decision that sets forth the standard of Swinney v. Chambers, 514 U.S. [00:16:16] Speaker 00: 35 on pendant appellate jurisdiction. [00:16:19] Speaker 01: Or you think you can tag the merits of the sanctions issue onto your defense to their challenge that the sanctions should have been thorough? [00:16:31] Speaker 00: Because our cross appeal then is just inextricably intertwined with the subject matter of their appeal, which is the sanctions order. [00:16:37] Speaker 00: And we agree that we have to file a cross appeal on that, because it would give us, we could then get greater relief. [00:16:43] Speaker 00: Not just defend their appeal, but then there would be no sanction at all. [00:16:45] Speaker 00: That's why we had to file a cross appeal. [00:16:47] Speaker 00: But because the subject matter of the cross appeal is so inextricably intertwined with the subject matter of their appeal, it's the rare case for pending appellate jurisdiction. [00:16:55] Speaker 00: And I would also point out, and it's not a separate legal argument, but just as a practical argument as to why pendant appellate jurisdiction is important here, that the board is pretty obviously waiting on this court to decide the sanctions issue. [00:17:07] Speaker 00: The board could have decided the amount of sanctions a year ago. [00:17:10] Speaker 00: And it's pretty clearly waiting on this court. [00:17:13] Speaker 00: So with the board waiting on this court, the parties serving it up for this court, I think it is important to exercise the proper pendant appellate jurisdiction because of the inextricably intertwined nature of the two appeals. [00:17:25] Speaker 00: Now, the only other housekeeping matter would be SAS. [00:17:31] Speaker 00: Here, of course, the board held that every claim in the patent is unpatentable. [00:17:37] Speaker 00: So it did not institute on some grounds, but those grounds are then just would be alternative, would be superfluous in light of the board's decision. [00:17:44] Speaker 00: So there's no SAS issue in this posture of the case. [00:17:47] Speaker 04: You're not seeking a remand? [00:17:48] Speaker 04: Is that what your position is? [00:17:50] Speaker 00: Well, certainly not now, right, where all the claims are unpatentable anyhow. [00:17:54] Speaker 00: My point was going to be that if the court were to, if this court, the reason I think it's just practically easy in this case is that if the court were to have issue with the board's merits determination, I think this court would logically remand anyway. [00:18:08] Speaker 00: I think the posture would be remand for further proceedings. [00:18:11] Speaker 00: And then the remand on further proceedings, there's no doubt that the board would then need to take up [00:18:16] Speaker 00: And if it found that some of the existing grounds were not appropriate, it would then need to take out the alternative ones. [00:18:22] Speaker 04: So you're kind of pleading SAS in the alternative, if you will. [00:18:25] Speaker 04: Like, if we don't affirm and agree that all the claims are invalid, then you would say it should be remanded to the PTAB for consideration of the non-instituted grounds? [00:18:36] Speaker 00: Right. [00:18:36] Speaker 01: Except that I think you would remand it. [00:18:38] Speaker 01: That's a contingent prayer for SAS relief. [00:18:43] Speaker 01: Is that right? [00:18:45] Speaker 01: Am I understanding what you're saying? [00:18:48] Speaker 01: You're making that today for the first time? [00:18:50] Speaker 01: Even though essay answers decided a month and a half or so ago, haven't you waived the right to make that argument? [00:18:55] Speaker 01: Isn't it a little late to do it here today to us, Mr. Joseph? [00:19:00] Speaker 00: I understand what you're saying. [00:19:03] Speaker 01: I do. [00:19:04] Speaker 01: The proper answer to that question isn't I understand what you said. [00:19:07] Speaker 00: The answer is normally yes. [00:19:10] Speaker 01: But my point, though, is that if the score... Normally yes means the answer is yes, you've waived the right to assert an SAS right. [00:19:18] Speaker 00: No, because not for remand. [00:19:20] Speaker 00: So in other words, my point is just this. [00:19:23] Speaker 00: I think that if the court were to disagree with the board on the merits, I don't know exactly what the ground would be, but if the court were, I think the proper remand, forget about SAS, I think the proper remedy in this court anyhow is vacate remand to the board for further consideration of certain grounds under a different claim construction or whatever. [00:19:38] Speaker 00: Once it's back in the board, I think the board would then, we don't need the court to say anything about SAS. [00:19:43] Speaker 01: Oh, if we reverse the words, why would we vacate remand? [00:19:46] Speaker 00: If you would render judgment that these claims are all patentable as a matter of law. [00:19:52] Speaker 00: Sorry, I, you're right, you could. [00:19:53] Speaker 00: It's just normally in an APA case, it's a vacated remand or a consideration. [00:19:58] Speaker 01: If they were wrong, how many bites of the apple do you get? [00:20:01] Speaker 00: Well, it depends on the ground on which they were wrong, I suppose. [00:20:03] Speaker 00: Here, these claim constructions, there would then, if you could disagree with us on a claim construction, I think you would logically... But haven't we sort of agreed that even if we were to [00:20:13] Speaker 01: to find some error with the district court, with the board's opinion, you have waived any SAS right to remand. [00:20:23] Speaker 00: Yeah, we've waived a right for this court to remand based on SAS. [00:20:28] Speaker 00: So you've not waived. [00:20:29] Speaker 01: Oh, so if, potentially, if we decided we thought we ought to remand, it would go back. [00:20:33] Speaker 01: And then, presumably, you would stand up in front of the board and say, well, you want some more education. [00:20:38] Speaker 00: That's exactly my point. [00:20:39] Speaker 01: And you might be told by them that you've waived. [00:20:42] Speaker 00: They could take it up at that point, but my point is we thought that practically we didn't think it was worth making a, I was wrong, very wrong, worth making an issue of it because at this point we've wanted all claims and logically would go back if there was an issue with that and we would take it up there as our point. [00:21:00] Speaker 00: I think, yep, that's all I have on those matters. [00:21:04] Speaker 04: Can I ask you a question about the claim constructions? [00:21:06] Speaker 04: And I'm going to ask your adversary as well. [00:21:09] Speaker 04: Which of the claim constructions in your view [00:21:12] Speaker 04: matter in determining the outcome of the case. [00:21:15] Speaker 04: Because I wasn't sure all of them did. [00:21:18] Speaker 00: Many of them don't. [00:21:19] Speaker 00: I agree. [00:21:20] Speaker 00: In terms of the appeals, obviously defined by the patentability issues that have been raised on appeal by the appellant, naturally. [00:21:28] Speaker 00: The ones that seem to matter are the claim construction of the gas pressure regulator terms, the claim construction of valve means, because those are efforts to import the internally relieved limitation from the third party product manual. [00:21:42] Speaker 00: Baffle means dozens, I don't think. [00:21:48] Speaker 00: Because they don't, again, this is the issue with the high pressure gas, but there's no separate patentability issue about high pressure. [00:21:56] Speaker 00: All of these systems take high pressure and low pressure out. [00:22:00] Speaker 00: That's the nature of it. [00:22:03] Speaker 00: The outlet vent tube prevent means limitations. [00:22:08] Speaker 00: The two arguments there, they have this downwardly facing end portion. [00:22:12] Speaker 00: Again, no patentability argument about that. [00:22:15] Speaker 00: And they also want the vent tube wide enough to accommodate the discharge of high-pressure gas. [00:22:20] Speaker 00: But again, not some separate patentability arguments about high pressure. [00:22:25] Speaker 00: And then the high-pressure gas source versus low-pressure gas line, again, no patentability arguments on that. [00:22:30] Speaker 00: I think it's all about internal relief. [00:22:32] Speaker 00: And they admit that the patent doesn't say a thing about whether a gas pressure regulator is internally relieved. [00:22:41] Speaker 00: And there's nothing about that in the claims, the specification, the prosecution history. [00:22:47] Speaker 00: So it's just a very naked argument that the claim should be construed to incorporate features from third-party product literature, which in our understanding would be completely unprecedented as a claim construction matter. [00:22:59] Speaker 01: Do you have any further argument on the 315B issue? [00:23:02] Speaker 00: Of course. [00:23:06] Speaker 00: With respect to 315B, it's a very basic fundamental principle of law that Congress legislates [00:23:11] Speaker 00: that dismissal without prejudice leaves both parties as if the action had never happened. [00:23:16] Speaker 00: And it's been applied by a wide variety of courts in a wide variety of different contexts. [00:23:21] Speaker 00: The reason it's a very important principle is that dismissal without prejudice is supposed to be without prejudice to both parties. [00:23:27] Speaker 00: So it's without prejudice to the plaintiff because the plaintiff can refile. [00:23:30] Speaker 00: It's without prejudice to the defendant because the defendant's rights are legally unaffected by anything that happened during the suit that was dismissed without prejudice. [00:23:39] Speaker 00: and is applied here, which makes that principle especially important here. [00:23:43] Speaker 00: Because if you have a scenario where a plaintiff files a suit, it's dismissed without prejudice, a year goes by, the plaintiff refiles. [00:23:52] Speaker 00: But for this very important legal principle, the defendant's rights are prejudiced by the plaintiff's litigation decisions, pursuing a suit that was dismissed without prejudice. [00:24:05] Speaker 00: Which is why we think the principle applies in particular for us here. [00:24:07] Speaker 00: Now, their argument about, it's been applied, I said, in a wide variety of different contexts. [00:24:12] Speaker 00: One of them has been statutes of limitations. [00:24:15] Speaker 00: And their argument there is, well, those are factually distinguishable because those dealt with when, the point there was that when a suit that's dismissal without prejudice is pending, that doesn't toll the plaintiff's limitation period. [00:24:26] Speaker 01: So the plaintiff's limitation period for filing another suit is unaffected by the fact that that person is... In both cases, you don't deal with a statute that on its face says you've got to file within one year of the service of the complaint. [00:24:36] Speaker 04: And it's service of the complaint, not filing of a lawsuit. [00:24:40] Speaker 00: Right, service of the complaint. [00:24:41] Speaker 00: But again, service of the complaint. [00:24:42] Speaker 01: Well, you just take the words of the statute and explain to me how your argument can fly, given the words of the statute. [00:24:50] Speaker 00: Well, the reason is that when Congress is pursuing, this is not one. [00:24:53] Speaker 00: The specific question here is just something that's not specifically dealt with in the statute. [00:24:59] Speaker 01: And therefore, when you have a term that... The adversary says, well, the statute had one exception, and that shows that they knew how to curb that exception. [00:25:07] Speaker 00: It had an exception for something that was not dealt with by a background rule. [00:25:12] Speaker 00: In other words, if you have an exception there for a very quirky circumstance that I don't know where else it would apply, that doesn't indicate that Congress was even thinking about this question. [00:25:23] Speaker 00: Or to the extent that Congress was thinking about it, which I'm sure it wasn't, maybe it was thinking, well, we have a background rule for this situation, so we don't need to address it. [00:25:30] Speaker 00: We'll address something else that doesn't. [00:25:32] Speaker 00: But the whole point of background rules [00:25:34] Speaker 00: is that if a statute does not specifically address something, the statute's read in light of that. [00:25:38] Speaker 00: Take a couple other examples. [00:25:40] Speaker 00: This court's decision, for example, in the Procter & Gamble case that's discussed in the briefs, there you had a statute that said that a stay could be granted at the request of the patentee. [00:25:55] Speaker 00: Well, this court held that a stay could be granted at the request of either the patentee or the accused infringer. [00:26:01] Speaker 00: that the settled background rule is anybody can request to stay. [00:26:04] Speaker 00: So in Congress, an act is a statute saying one person can request to stay. [00:26:08] Speaker 00: Normally, you would just look at that statute in isolation and say, well, that's who can request to stay. [00:26:12] Speaker 00: But no, in light of the settled background rule, everyone can. [00:26:15] Speaker 00: Or Akamai is somewhat of an example as well, where for direct infringement, the statute says whoever infringes a method is liable. [00:26:23] Speaker 00: It's well settled that infringing a method means performing all the steps. [00:26:27] Speaker 00: But this court looked to settled background rules of attribution [00:26:31] Speaker 00: in order to determine that, well, you don't perform all the steps, but you're responsible because of your relationship with someone else who performed others. [00:26:38] Speaker 00: So yes, there's statutory language. [00:26:41] Speaker 00: If you just look at it, don't think about what situations might arise. [00:26:45] Speaker 00: You get one scenario. [00:26:46] Speaker 00: That's the whole point of it being a subtle background rule. [00:26:48] Speaker 00: Also, as came up earlier, there is clearly need for some interpretation here in light of background rules. [00:26:54] Speaker 00: If you serve a complaint that hasn't been filed yet, you serve it without a sentence. [00:27:00] Speaker 01: concept of how background rules create gaps and ambiguities. [00:27:05] Speaker 01: Do you have a case for that proposition? [00:27:09] Speaker 00: The Congress legislates this. [00:27:11] Speaker 01: You said, well, there's a background rule here that, ordinarily, when you dismiss a case without prejudice, it means it never happened, right? [00:27:19] Speaker 01: That's your background principle. [00:27:22] Speaker 01: But it just seems to me, I haven't quite heard it in such a sweeping fashion, that you sort of take [00:27:28] Speaker 01: all background principles that lie out there in the air and then every statute presumes that all those background rules are extant so that if you can possibly find a background rule that maybe you wonder about the language of the statute, it creates a gap that therefore allows for an agency interpretation. [00:27:50] Speaker 01: Is that where you're going? [00:27:52] Speaker 00: Well, there are two ways of looking at it in terms of the agency interpretation. [00:27:55] Speaker 00: One is just that even if there's no Chevron, [00:27:58] Speaker 00: It's still up to the court to construe the statute in light of the settled background rule, which, as I said, is especially important here. [00:28:06] Speaker 00: Because the whole point of the background rule is then that dismissal without prejudice will be without prejudice to anyone. [00:28:11] Speaker 01: Is that the direction you want us to go? [00:28:13] Speaker 01: I mean, help me if I'm writing an opinion in your favor. [00:28:16] Speaker 01: You want me to do background rules for general statutory interpretation and ask you any reliance on Chevron, or what would it be, Howard here? [00:28:26] Speaker 01: There's no regulation, right? [00:28:28] Speaker 00: No, it's not our... Our first point is the court could do that if there wasn't Chevron. [00:28:32] Speaker 00: Our second point then, as you know, is that if you think that there is an ambiguity in how to reconcile the statutory language that doesn't address this point specifically with the subtle background rule in light of the context and policies that discuss it without prejudice really ought to be without prejudice... The agency's interpretation here... The agency's interpretation has come through litigation, right? [00:28:52] Speaker 01: Not through rulemaking. [00:28:53] Speaker 00: Right. [00:28:54] Speaker 00: Thanks for bringing me back to that. [00:28:55] Speaker 00: I was going to just tell you to ask a question about that. [00:28:58] Speaker 00: I mean, the case on page 51 of our opening brief, it's one of the Microsoft cases, points out the Chevron deference applies to rules created by adjudication as well as by rule. [00:29:07] Speaker 00: Agencies have discretion how to come up with their rules. [00:29:10] Speaker 00: And if they establish a rule in adjudication. [00:29:14] Speaker 01: On this one, you say it's not litigation driven in this case because it's happened before, right? [00:29:20] Speaker 00: Well, this is a general, this is a principle step. [00:29:23] Speaker 04: Do you know how many cases in which this has occurred where the PTAB has said there's no time bar because the case was dismissed without prejudice? [00:29:31] Speaker 00: There are at least, there are a couple others for sure. [00:29:35] Speaker 00: I mean, Click to Call is one that we cite in our brief. [00:29:38] Speaker 00: There's also, it's not momentum, there are a couple cited in our brief, I think there are a couple others, so it does come up. [00:29:49] Speaker 00: I mean, it absolutely comes up and it's a general principle of statutory interpretation, which is why if the agency wants to decide a general legal question in the context of an adjudication, as opposed to a rulemaking, it's still entitled to Chevron deference. [00:30:04] Speaker 04: Mr. Joseph, were you going to save two minutes of rebuttal time for your cross appeal? [00:30:11] Speaker 00: Yes. [00:30:12] Speaker 00: And on sanctions, yes. [00:30:19] Speaker 00: All right. [00:30:22] Speaker 04: Could we give Mr. Porter, restore his time, and give him an extra two minutes to give him the same amount of time as Mr. Joseph. [00:30:30] Speaker 04: Okay, Mr. Porter. [00:30:32] Speaker 02: Thank you, Your Honor. [00:30:33] Speaker 02: I have two situations where background laws or cases apply to this opposite to the... Wait, wait a minute. [00:30:41] Speaker 04: No, it should be five. [00:30:43] Speaker 04: We had ten up here. [00:30:44] Speaker 04: That's not right. [00:30:46] Speaker 04: Just that. [00:30:50] Speaker 02: I have at least two situations where there is a background presumption that goes contrary to Atlanta Gas's position. [00:30:58] Speaker 02: This court is a court of appeal from the Court of Federal Claims. [00:31:04] Speaker 02: The jurisdictional statute is 28 U.S.C. [00:31:06] Speaker 02: 1500, which presents an election that is similar to the election in Section 315A. [00:31:14] Speaker 02: It's a binding election that occurs up front, and if you go in the district court, [00:31:18] Speaker 02: You lose the right to go in the court of claims. [00:31:23] Speaker 02: We know 1500. [00:31:24] Speaker 02: Okay. [00:31:25] Speaker 02: I thought you might. [00:31:26] Speaker 02: And you then know Keene versus United States, 508 U.S. [00:31:31] Speaker 02: 200, 1993, which says we are not going to permit exceptions to go beyond the statute to permit that binding election to be withdrawn, even in cases of where subject matter jurisdiction didn't exist in the district court. [00:31:46] Speaker 02: So that's background law relative to this issue. [00:31:50] Speaker 02: Another one is the removal statute. [00:31:52] Speaker 02: It's 28 USC 1446 C1. [00:31:57] Speaker 02: That statute is structured very similarly to 315B. [00:32:05] Speaker 02: It says that commencement of an action starts a one-year period of limitation for removal unless the plaintiff engaged in bad faith. [00:32:15] Speaker 02: So their Congress had a similar statute that was triggered in the same way, but it provided an exception. [00:32:25] Speaker 02: So the fact that with this background exception for removal, that they then do not provide an exception in 315B is telling. [00:32:41] Speaker 04: Did you have an answer to my question about which claim constructions matter in actually determining the outcome of the case? [00:32:52] Speaker 02: Well, our position was that, properly construed, since the patent has expired, since there are ambiguities, the patent office pursuant to case law is supposed to resolve those ambiguities in the favor of the [00:33:11] Speaker 02: Patentee if the specification provides support for the resolution and so we one for example would be the meaning of the regulator gas regulator the board said regulator could be any gas regulator, but There are a number of different types of gas regulators and the one disclosed in the patent is only one type It's an internally relieved regulator [00:33:39] Speaker 02: And that is consistent with the description in the patent of passing gas through the gap between the baffle and the skirt. [00:33:46] Speaker 02: Because internally relieved regulators are the kind that relieve overpressure by passing gas through the outlet vent. [00:33:54] Speaker 02: The prior cited against the 029 patent is an externally relieved regulator which has a small vent 15 that only passes breathing air. [00:34:09] Speaker 02: That's why the best reference, Peterson 087, has a 1 16th inch gap that is expressly stated to exclude insects. [00:34:18] Speaker 04: But do you agree that you've raised a good number of claim construction issues, some of which don't seem to, the interpretation of which doesn't seem to implicate whether the claims have the board's validity decision. [00:34:33] Speaker 04: And so what do we do with respect to those claim terms? [00:34:35] Speaker 04: Because we're not supposed to be looking at claim constructions that are [00:34:40] Speaker 04: determinative of the PTAB's decision below. [00:34:43] Speaker 02: Okay. [00:34:45] Speaker 02: With respect, I think the case should, the board never had jurisdiction. [00:34:51] Speaker 02: Pronounsons of the court, or excuse me, the board, on the merits of the patent are beyond the scope of the board's jurisdiction. [00:35:02] Speaker 02: So we're talking in a sense of hypothetical as to if the board had proper jurisdiction, [00:35:08] Speaker 02: Now, have they also properly handled that? [00:35:10] Speaker 01: I think that's what the presiding judge was asking, assuming that the board had proper authority to proceed. [00:35:17] Speaker 01: On appeal, you seem to raise, let's just make hypothetical, you raise 10 claim construction issues, five of which matter and five of which don't. [00:35:27] Speaker 01: So I think what the presiding judge's question was, what are we supposed to do with the five [00:35:32] Speaker 01: They don't matter. [00:35:33] Speaker 01: I mean, are we obligated to agree to adjudicate the claim construction issue if there are no consequences? [00:35:41] Speaker 02: First of all, I'm not so sure that all of them don't have some consequence concerning validity of the patent. [00:35:47] Speaker 01: Just take one and assume it doesn't have any consequence, and then answer the question of what we're supposed to do with it. [00:35:53] Speaker 02: Our position is it should be remanded. [00:35:55] Speaker 02: What? [00:35:55] Speaker 02: It should be remanded for a proper analysis by the board. [00:35:58] Speaker 02: The board did not properly explain its ruling, like under the Nubasive case. [00:36:03] Speaker 02: There were just broad conclusions. [00:36:07] Speaker 02: It was harmless error. [00:36:10] Speaker 02: I don't think it's harmless if you validated the patent claims. [00:36:13] Speaker 01: It didn't affect the judgment. [00:36:19] Speaker 01: I think what we were talking about is there are certain claims that are challenged on appeal as to the construction. [00:36:26] Speaker 01: Yes. [00:36:27] Speaker 01: Those claims don't seem to matter for either anticipation or obviousness for the decision. [00:36:33] Speaker 01: So the question is, well, why'd you raise them? [00:36:35] Speaker 01: I mean, can't we just ignore that? [00:36:37] Speaker 02: Well, you mean like, for example, the claim that involved the material from which the vent protector was made? [00:36:45] Speaker 04: Sure. [00:36:46] Speaker 04: Sure, that would be a good example. [00:36:48] Speaker 02: Yes, Omepen. [00:36:51] Speaker 02: The board used hindsight analysis to pick a reference, just pulled it out of the air, [00:37:00] Speaker 02: And it turns out that the expert for Atlantic Gas made no analysis as to whether that material would actually be useful, let alone the board never made a finding as to why, well, I'd say an improper finding as to why one skilled in the art would have been motivated to solve this problem in the first instance, let alone turn to this particular material. [00:37:25] Speaker 04: Okay. [00:37:25] Speaker 04: Thank you, Mr. Porter. [00:37:26] Speaker ?: Okay. [00:37:27] Speaker ?: Thank you. [00:37:28] Speaker 04: If it goes for you, you have two minutes. [00:37:35] Speaker 00: Thank you. [00:37:37] Speaker 00: So limited to sanctions here. [00:37:38] Speaker 00: On the jurisdiction question we talked about before, two sites that might be helpful to you with respect to the meaning of the inextricably intertwined standard. [00:37:45] Speaker 00: This court doesn't have a case on it. [00:37:48] Speaker 00: But there's a Fifth Circuit case that explains that issues are inextricably intertwined if the challenges involve overlapping issues of law and fact. [00:37:56] Speaker 00: And that's Comstock Oil. [00:37:59] Speaker 00: 261F3, 567, page 571, 5th Circuit 2001. [00:38:03] Speaker 01: This goes to your pending jurisdiction issue? [00:38:07] Speaker 00: For the appellate jurisdiction issue, because the two appeals are inextricably intertwined, that that provides... This is your desire to reach the merits of the sanctions? [00:38:19] Speaker 01: Correct. [00:38:19] Speaker 00: Correct. [00:38:20] Speaker 00: It's a little hard for me to understand you. [00:38:23] Speaker 01: I'm just trying to figure out which, because we're talking about jurisdiction of the board generally because of the 3.5 problem. [00:38:30] Speaker 00: It's true. [00:38:30] Speaker 00: There are several jurisdictional issues here. [00:38:32] Speaker 01: I'm just trying to figure out which one you're talking about. [00:38:35] Speaker 00: Understood. [00:38:35] Speaker 00: Yes, you're right. [00:38:36] Speaker 00: Thank you. [00:38:37] Speaker 01: That I guess right. [00:38:39] Speaker 01: You didn't tell me when you started out. [00:38:42] Speaker 00: And then the other case dealing with this is... I guess I get an A for that one, right? [00:38:48] Speaker 00: You're definitely doing better than me today. [00:38:50] Speaker 00: It says the one appeal, there's sure section if the issue is quote subsumed in the other, which is what we have here. [00:38:57] Speaker 03: Right. [00:38:57] Speaker 00: And that's Hadex against Johnson, 228F3rd, 662, page 669, Sixth Circuit, 2000. [00:39:04] Speaker 04: Page 228F3rd, what was the next number? [00:39:07] Speaker 04: I just didn't hear. [00:39:08] Speaker 00: Sorry. [00:39:08] Speaker 00: Page 662. [00:39:09] Speaker 00: Thank you. [00:39:11] Speaker 00: And then the pin side is page 669. [00:39:12] Speaker 00: It's from the Sixth Circuit. [00:39:14] Speaker 00: Now, obviously as to the merits of the appeal, it's a simple point. [00:39:19] Speaker 00: There's never been any finding of any actual violation here with respect to the Southern Company being an RPI. [00:39:24] Speaker 00: The report relied on admission that simply doesn't exist. [00:39:27] Speaker 00: Because the purported admission said that it's not an RPI, but that to avoid unnecessary vexatious litigation, certainly the opposite of sanctionable behavior, we would just list it as such going forward. [00:39:40] Speaker 00: It has the status of an RPI, but that doesn't mean that we did anything wrong by not listing it sooner. [00:39:44] Speaker 00: And without that as a basis for the sanctions order, there simply isn't one. [00:39:49] Speaker 04: Thank you, Mr. Joseph. [00:39:50] Speaker 04: We thank counsel. [00:39:51] Speaker 04: The case has been submitted.