[00:00:00] Speaker 04:
Mr. O'Quinn, ready to proceed?

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

[00:00:11] Speaker 01:
Thank you, Judge Wallach, and may it please the Court, John O'Quinn on behalf of Western GCO.

[00:00:16] Speaker 01:
PTAP's decision validating these three patents should be reversed on the merits, but as a threshold matter, the petition should have been dismissed as time barred under Section 315B.

[00:00:26] Speaker 01:
The party still here challenging the validity of these patents is ION.

[00:00:29] Speaker 04:
Let me ask you, in your supplemental brief, you say that you agree there's a split of authority about law or fact.

[00:00:42] Speaker 04:
Kripity.

[00:00:44] Speaker 01:
On the ultimate question of Kripity, yes.

[00:00:45] Speaker 04:
Yeah.

[00:00:46] Speaker 04:
But you say it's best viewed as a legal determination based on underlying facts.

[00:00:51] Speaker 04:
Tell me why, as opposed to a mixed question,

[00:00:55] Speaker 04:
Well, Judge Wallach, I think at the end of the day, you know, and I'm saying that informed by looking at Wright and Miller, looking at every statement, and so on.

[00:01:06] Speaker 01:
Sure.

[00:01:07] Speaker 01:
Well, and just to take a step back, if at a minimum, if the wrong test has been applied here, and we submit that it has because the board focused on the issue of control and not on the broader circumstances that we say presents privity, at a bare minimum, that requires a remand.

[00:01:23] Speaker 01:
But if you're actually then addressing for yourselves

[00:01:25] Speaker 01:
the question of privity.

[00:01:28] Speaker 01:
I think that privity as... We have to have a standard.

[00:01:31] Speaker 01:
Sure, and privity is ultimately a legal conclusion.

[00:01:35] Speaker 01:
It's the conclusion that parties are sufficiently closely related so that one should be held bound for whatever purposes it is.

[00:01:44] Speaker 01:
That's a legal conclusion, and it's based on... Yeah, but we're reviewing

[00:01:49] Speaker 04:
the facts that lead to that legal conclusion.

[00:01:52] Speaker 01:
Absolutely, Judge.

[00:01:52] Speaker 04:
Why doesn't it mix up like that?

[00:01:54] Speaker 01:
So I don't know, I mean, at the boundaries, I don't know that there's a fundamental distinction between considering it a mixed question versus being ultimately a legal question that's based on underlying facts, because certainly the fact finder will get deference with respect to the underlying facts.

[00:02:10] Speaker 01:
Here, of course, the board didn't consider whether or not these facts rise... I'm going to ask Taylor questions, too.

[00:02:17] Speaker 03:
Sure.

[00:02:17] Speaker 03:
I've got a related question, which goes to

[00:02:20] Speaker 03:
that our law on whether a patent qualifies for covered business method review.

[00:02:26] Speaker 01:
Okay.

[00:02:28] Speaker 03:
We review those determinations for under the arbitrary and capricious standard.

[00:02:33] Speaker 03:
Okay.

[00:02:33] Speaker 03:
Of course, you have to have the right legal standard for what is a covered business method, but then after you set that standard,

[00:02:42] Speaker 03:
then the determination of whether a given patent qualifies for instituting a covered business method patent, we review under the arbitrary and capricious standards.

[00:02:51] Speaker 03:
So now I'm wondering, should we likewise be applying that standard when assessing whether a given petitioner should be barred because that party's not the real party in interest or that party and the facts of that

[00:03:10] Speaker 03:
matter is in privity with a party that had been sued more than one year before the petition had been filed.

[00:03:16] Speaker 03:
What do you think?

[00:03:17] Speaker 01:
So Judge Chin, I think that if you are answering the question of what were the facts that the board found, I think under the APA, that ends up being substantial evidence review.

[00:03:29] Speaker 01:
I think that if you are ultimately answering the question, the legal question, what I submit is ultimately a legal question of

[00:03:38] Speaker 01:
is there in fact, do those facts add up to being privity, then I think that you would review that de novo.

[00:03:43] Speaker 01:
I don't see where the arbitrary and capricious standard would actually come in because either you're reviewing fact finding or you're reviewing a legal question.

[00:03:53] Speaker 01:
And we're not talking about agency action in the abstract.

[00:04:00] Speaker 01:
Was it arbitrary and capricious for them to build the dam here versus building the dam there?

[00:04:06] Speaker 01:
So I'm not sure that it makes sense to apply that standard there.

[00:04:09] Speaker 01:
I do think, though, that the antecedent point that you noted, of course, is, for us, the most important point here, which is, of course, what is the standard for privity?

[00:04:18] Speaker 01:
And the standard for privity is, as we explain in our brief, consistent with this court's precedence, consistent with the legislative history, and even the trial practice guide.

[00:04:27] Speaker 01:
is whether the party's relationship as it relates to the patented technology is sufficiently close to warrant application of what is in this case a statutory estoppel.

[00:04:38] Speaker 03:
And then the next question, of course, is what does it mean to be sufficiently close?

[00:04:43] Speaker 03:
And I think the argument from the other side is we have the Supreme Court Taylor case, which is the Supreme Court's last word on non-party conclusion and when to bar a non-party based on a prior litigation with

[00:04:57] Speaker 03:
with someone else, and Taylor explains why a diffuse standard such as how close, you know, the non-party was to the party that litigated before is not a good enough standard.

[00:05:15] Speaker 03:
And so we need to channel our thinking in particular ways to understand and establish whether the non-party and the party's relationship is in fact sufficiently close.

[00:05:27] Speaker 03:
So why, I guess probably this is what Judge Wallach was hinting at, why shouldn't we be applying the Taylor thinking to figuring out the privity question in this case?

[00:05:41] Speaker 01:
Sure.

[00:05:41] Speaker 01:
Well, first, and I think it's important to recognize, Taylor is not deciding the meaning of privity for all purposes.

[00:05:47] Speaker 01:
It doesn't purport to do that.

[00:05:50] Speaker 01:
In fact, footnote eight of Taylor is very clear.

[00:05:52] Speaker 01:
They're not even using the term privity precisely because it has come to have so many different meanings.

[00:05:58] Speaker 01:
And when you look at the statutory language here, Congress, despite Taylor saying, we're not going to use the term privy, and privy has a lot of different meanings, Congress used the term privy.

[00:06:09] Speaker 03:
Doesn't footnote aid of Taylor also say that the term privities, although once upon a time was known,

[00:06:17] Speaker 03:
was considered to be a specific legal relationship, it's now been expanded so that by today's standards, it's just non-party preclusion in general.

[00:06:28] Speaker 01:
Oh, I think that what footnote eight of Taylor is ultimately saying is that there are a lot of different meanings to the term privity.

[00:06:34] Speaker 01:
They're not getting into that.

[00:06:35] Speaker 01:
And indeed, if you look at the legislative history here, Senator Kyle specifically talks about how privity has no universal definition.

[00:06:43] Speaker 01:
And the tests that were articulated both in the legislative history and in the trial practice guide are very much akin to the tests that we are advocating here, the things that they deride as being inconsistent with Taylor.

[00:06:58] Speaker 01:
If you look at 77 Federal Register at 48759, what the trial practice guide says is that we're going to evaluate whether parties are privies in a manner consistent with

[00:07:10] Speaker 01:
Flexible and equitable considerations.

[00:07:12] Speaker 01:
That's a quote.

[00:07:13] Speaker 01:
We're going to look at the, quote, relationship between the purported privy and the other relevant party and whether it's sufficiently close.

[00:07:19] Speaker 01:
And we're going to consider the, quote, practical situation, which is also channeling the points that Cinder Kyle made.

[00:07:26] Speaker 01:
So as FAA versus Cooper makes clear, when Congress picks a word out of the common law that has a lot of different meanings, and privity certainly does.

[00:07:35] Speaker 01:
There's no doubt, for example, ion and PGS were in contractual privy.

[00:07:40] Speaker 01:
They're in privity for certain purposes.

[00:07:42] Speaker 01:
The question is, are they in privity for the purposes that are relevant here?

[00:07:46] Speaker 03:
And when Congress picks a term like privity, and it has a common law understanding, and the Supreme Court has provided that common law understanding in an opinion, shouldn't we be guided by that Supreme Court opinion?

[00:08:01] Speaker 01:
Well, Judge Shin, what I'm pushing back against is the idea that the Supreme Court was saying anything about the term privity.

[00:08:06] Speaker 01:
What the Supreme Court was addressing was whether or not this concept of virtual representation that had grown up in different regional circuits was sufficient for purposes of res judicata, whether or not parties could actually be bound by a judgment.

[00:08:21] Speaker 01:
We're not talking about parties being bound by a judgment here.

[00:08:23] Speaker 01:
In fact, 315B doesn't even require that there have been a judgment.

[00:08:27] Speaker 01:
It doesn't matter who won or who lost.

[00:08:30] Speaker 04:
Let me ask you about the argument

[00:08:36] Speaker 04:
that ION makes that you abandon your privity arguments before the PTAT and therefore they're waived.

[00:08:42] Speaker 01:
Yeah, they're certainly not waived, Judge Wallach, for multiple reasons.

[00:08:46] Speaker 01:
First, they're clearly raised in the institution decision and in challenging institution.

[00:08:52] Speaker 01:
And as Wi-Fi 1 makes clear at pages 6, 14, and 17 of the slip opinion, the fact that something is time barred can be reviewed even if it's only addressing at institution.

[00:09:03] Speaker 01:
And there's no doubt if you look at 1188 to 1190,

[00:09:06] Speaker 01:
that is specifically raised.

[00:09:08] Speaker 01:
Second, when we raise the issue of privity and use the term privity specifically in seeking rehearing in front of the board in the first round IPRs, if you look at appendix 364, the board doesn't say that we had waived the issue.

[00:09:20] Speaker 01:
The board doesn't say that we had missed the issue.

[00:09:22] Speaker 01:
It says, quote, we fully considered evidence of RPI and privity.

[00:09:27] Speaker 01:
And in fact, if you look at the discovery motions, or excuse me.

[00:09:31] Speaker 03:
I'm sorry, what site?

[00:09:32] Speaker 01:
That was appendix 364.

[00:09:33] Speaker 01:
364.

[00:09:35] Speaker 01:
And if you also look at appendix 1303 to 1308, this is where we were seeking rehearing of the denial of discovery post-institution in first-round IPRs.

[00:09:45] Speaker 01:
We're specifically seeking leave to file a motion to get discovery related to real party interests and to privity, calling out privity by name.

[00:09:56] Speaker 01:
So the idea that this has somehow been waived, I think, doesn't make sense at all.

[00:10:01] Speaker 04:
Let me ask you this.

[00:10:02] Speaker 04:
This is a 319, 35 U.S.C.

[00:10:04] Speaker 04:
319 question.

[00:10:08] Speaker 04:
Since you've appealed all six of the PDEP's final written decisions, may I take it that you're dissatisfied with those?

[00:10:19] Speaker 01:
Yes.

[00:10:20] Speaker 04:
Thank you.

[00:10:21] Speaker 01:
Yes.

[00:10:22] Speaker 01:
Yes.

[00:10:22] Speaker 01:
I assume that, but.

[00:10:23] Speaker 01:
Yes, we are.

[00:10:24] Speaker 01:
We are seeking to have all of them reversed or vacated.

[00:10:28] Speaker 01:
And the issues here that we're talking about, both in terms of the legal test

[00:10:32] Speaker 01:
and in terms of the discovery that we were denied the opportunity to even file a motion to seek on these facts.

[00:10:41] Speaker 01:
And they try to treat these facts as though, well, this is just ordinary run of the course.

[00:10:45] Speaker 01:
And they pick at them one by one.

[00:10:47] Speaker 01:
But when you look at the totality of the facts here that were laid out before the board, if these facts are not enough to at least have the opportunity to file a motion for discovery, it's really hard to imagine

[00:10:59] Speaker 01:
there will ever be an opportunity to even file a motion to get discovery on these types of issues.

[00:11:05] Speaker 03:
There was discovery here in this particular instance.

[00:11:08] Speaker 03:
There were interrogatories that were responded to.

[00:11:11] Speaker 03:
There were two rounds of interrogatories, including discovery of the master purchase agreement.

[00:11:17] Speaker 03:
So I think it's going a little too far to say that you were not even allowed to file a motion for discovery.

[00:11:23] Speaker 03:
I mean, there was discovery here.

[00:11:25] Speaker 01:
Let's be clear, Judge Chen, the board did not split the baby here.

[00:11:29] Speaker 01:
The board did not order any discovery.

[00:11:32] Speaker 01:
The interrogatories that were submitted were voluntarily responded to.

[00:11:36] Speaker 01:
This was all still voluntary discovery.

[00:11:39] Speaker 01:
And the negotiations that they point to in which they want to say, oh, well, you gave up this or that or the other, that was all before invoking the board and asking the board for leave to file a motion or before the board teed that question up.

[00:11:53] Speaker 01:
The board never granted a motion

[00:11:56] Speaker 01:
to, excuse me, never granted us leave to ever file a motion.

[00:11:59] Speaker 03:
Okay, so then you're saying that there was a first round of interrogatories and it was just agreed upon by the parties that they would respond to that.

[00:12:06] Speaker 03:
Then there was a second round of interrogatories and then the other side agreed to respond to that.

[00:12:13] Speaker 03:
And then also at some point hand over the master purchase agreement.

[00:12:18] Speaker 01:
So Judge Chen, a couple of things.

[00:12:19] Speaker 01:
First, when we talk about first and second rounds, there were

[00:12:22] Speaker 01:
Six actually consolidated nine IPRs here.

[00:12:25] Speaker 01:
So yes, there were some interrogatories in the first round IPRs, and there were interrogatories in the second round IPRs.

[00:12:31] Speaker 01:
And there were limited answers that were given in which they unilaterally redefined who some of the parties were.

[00:12:38] Speaker 01:
And we went back to the board and said, this is why we need to be allowed to seek discovery.

[00:12:44] Speaker 01:
The board didn't ever grant us leave to even file a motion.

[00:12:48] Speaker 04:
Just know you're into your rebuttal.

[00:12:50] Speaker 01:
I realize I'm into my rebuttal and I want to make just before I sit down on some of the technical issues here.

[00:12:55] Speaker 01:
Number one on predicting positions.

[00:12:57] Speaker 01:
This is a classic situation where you have where you have definitional language in the patent itself.

[00:13:04] Speaker 01:
The patent tells you what is the quote most important requirement for the control system.

[00:13:09] Speaker 01:
It tells you how to achieve it and that is because the quote inventive control system uses

[00:13:15] Speaker 01:
behavior predictive model-based control logic.

[00:13:19] Speaker 01:
Those are the kinds of unmistakable statements the pacing technologies says are limiting.

[00:13:24] Speaker 01:
And what the board did here is exactly what this court said more recently in Henry Smith, 871 F3rd at 1383, which post-states our briefing, that you can't do.

[00:13:33] Speaker 01:
It read a broad construction.

[00:13:36] Speaker 01:
But Smith reminds the board that the broadest reasonable construction is the one that corresponds with what and how the inventor describes his invention

[00:13:45] Speaker 01:
in the specification.

[00:13:46] Speaker 01:
And estimating is not the same as predicting.

[00:13:48] Speaker 01:
Then with respect to feather angle mode, let me say that this is the classic case, classic case of hindsight, classic case of never answering the antecedent question of how or why one would think to use intentional feathering, which was known in the art, feathering was known in the art to be a problem.

[00:14:08] Speaker 01:
Why would one think it to be a solution?

[00:14:10] Speaker 01:
What the board does is it reasons backwards.

[00:14:12] Speaker 01:
It says, we know that there's a problem.

[00:14:15] Speaker 03:
And as I understand it, the board looked at the other side's expert testimony.

[00:14:20] Speaker 03:
And the expert testimony said, number one, you would want to have your streamers in parallel.

[00:14:27] Speaker 03:
Number two, you would ideally like to have them at a zero degree.

[00:14:31] Speaker 03:
But number three, we know that they oftentimes veer off course.

[00:14:36] Speaker 03:
But you still want them to be parallel.

[00:14:37] Speaker 03:
Number four, you would want them to be brought back, but sometimes

[00:14:42] Speaker 03:
it would create too much noise to have all the birds trying to be brought back in line so then therefore you would want them nevertheless be set at a particular angle so that when you're doing a second pass or a third pass you would know to have the same angle.

[00:14:58] Speaker 03:
So that's my understanding of the expert's testimony that the board ultimately relied on.

[00:15:03] Speaker 03:
Did your expert contest any single one of those points that their expert made in

[00:15:09] Speaker 03:
in building the case?

[00:15:10] Speaker 01:
So yes, and my time, I see, is expiring, Judge Chen.

[00:15:14] Speaker 01:
The point I would make is that- You can answer the question.

[00:15:16] Speaker 01:
Thank you, Judge Wallach.

[00:15:18] Speaker 01:
When you look at what their expert testified to, what they testified was that there were motivations to solve the problem.

[00:15:24] Speaker 01:
There were motivations to want to keep streamers parallel.

[00:15:27] Speaker 01:
There were motivations to want to keep them in line behind the boat.

[00:15:30] Speaker 01:
There were motivations to want to make sure they don't get tangled.

[00:15:33] Speaker 01:
There were motivations to want to be able to account for conditions vis-a-vis current.

[00:15:37] Speaker 01:
What the expert doesn't say is, why would you think to do that by feathering, when feathering was known to be a problem, not a solution?

[00:15:45] Speaker 01:
And that, of course, is exactly, as cardiac pacemakers puts it, the recognition of an unsolved problem doesn't render the solution obvious.

[00:15:52] Speaker 01:
And that's all that you have here.

[00:15:56] Speaker 01:
Unless the court has further questions.

[00:15:58] Speaker 03:
I do have another quick question.

[00:16:00] Speaker 03:
The PGS litigation is completely settled.

[00:16:03] Speaker 03:
Is that right?

[00:16:05] Speaker 01:
I believe that is correct.

[00:16:07] Speaker 03:
Did Western GECO in that PGS litigation ever assert that PGS was a stop from challenging the validity of the patents in light of the ION litigation outcome?

[00:16:22] Speaker 01:
Judge Chen, I don't recall there ever being assertion by Western GECO that PGS was a stop.

[00:16:28] Speaker 01:
There were assertions by PGS that Western GECO should have been a stop from asserting

[00:16:35] Speaker 01:
various things and arguments that this was essentially claim-splitting of claims that were brought against AYA.

[00:16:44] Speaker 03:
It's Western GECO, not Western GECO?

[00:16:45] Speaker 01:
Yeah, it's GECO long E, as in geographic.

[00:16:53] Speaker 04:
Thank you, Judge Wallach.

[00:16:55] Speaker 04:
We'll restore a couple minutes for you.

[00:16:57] Speaker 01:
Thank you, Judge Wallach.

[00:17:01] Speaker 04:
In fact, we'll give you three, and Mr. Costanzos will give you 18.

[00:17:05] Speaker 00:
Thank you, Your Honor, and I hope not to use them all, but I'm here for you to answer whatever questions you have.

[00:17:11] Speaker 00:
May it please the Court.

[00:17:12] Speaker 04:
Let's start with this.

[00:17:14] Speaker 04:
Do you disagree with your brethren's discussion of the standard of review?

[00:17:27] Speaker 00:
Let me answer that question by saying that I agree with your comment that the question here is a mixed question.

[00:17:35] Speaker 00:
The court has asked us for briefing on the legal standards for both real party and interest in privity, and of course we think privity is out, completely out of the first round IPRs because it was abandoned well before the section 319 final written decision.

[00:17:49] Speaker 00:
Happy to address that, but on the merits you've asked us for the standards.

[00:17:53] Speaker 00:
The standards are those set forth in the trial practice guide.

[00:17:55] Speaker 00:
The standards are those that the board has been using since its inception under the trial practice guide, which is real party and interest means control.

[00:18:03] Speaker 04:
And there's some case authority out there, including from this court.

[00:18:09] Speaker 04:
And I would think that you would want to refer to that rather than to the trial practice guide.

[00:18:14] Speaker 00:
Sure.

[00:18:14] Speaker 00:
But the decisions from this court are consistent with what has happened in the trial, what has been set forth in the trial practice guide.

[00:18:23] Speaker 00:
With regard to real party and interest,

[00:18:24] Speaker 00:
The party has to be able to control.

[00:18:26] Speaker 00:
We didn't hear much from my friend about the real party and interest standard.

[00:18:30] Speaker 00:
That's all they argued.

[00:18:31] Speaker 00:
And that's all the board decided in the 319 final written decision.

[00:18:35] Speaker 00:
And it made us speak.

[00:18:36] Speaker 04:
Talk to me about Taylor.

[00:18:38] Speaker 00:
Taylor.

[00:18:40] Speaker 04:
And specifically this.

[00:18:45] Speaker 04:
Justice Ginsburg says what you say.

[00:18:52] Speaker 04:
That's unquestionable.

[00:18:56] Speaker 04:
But she says a lot more.

[00:19:01] Speaker 04:
She says that exceptions can be grouped into six categories.

[00:19:07] Speaker 04:
And certainly one of those categories is discussed at length, assumed control.

[00:19:16] Speaker 04:
But none of the others seem to be by the board in any of the

[00:19:22] Speaker 04:
decisions.

[00:19:24] Speaker 04:
What do we do about that?

[00:19:25] Speaker 00:
Well, if I go back to, if you'll excuse me for a second, I'll grab my copy of Taylor so that I can have a slightly more coherent conversation with the court.

[00:19:38] Speaker 00:
That's always good.

[00:19:40] Speaker 00:
Slightly.

[00:19:41] Speaker 00:
I think if you look at a lot of the other categories, they refer to

[00:19:48] Speaker 00:
particular types of relationships that aren't really at issue with either real party of interest or privity.

[00:19:53] Speaker 00:
So for example, the first one is a party that agrees to be bound.

[00:19:56] Speaker 04:
The second one is of interest.

[00:19:58] Speaker 00:
The second one, of course, is fairly broad, which is substantive legal relationships.

[00:20:02] Speaker 00:
And that's the one from which footnote 8 is dropped and says this is often referred to as privity.

[00:20:08] Speaker 00:
But she also notes that footnote 8, in her opinion for the court, that privity has come to be used so broadly

[00:20:14] Speaker 00:
that it may be harmful to use the term rather than helpful.

[00:20:17] Speaker 00:
But of course, we have to understand what the term privity means in this statute.

[00:20:21] Speaker 00:
And what I think that the upshot of Taylor, and I could go through the other various standards, but I think the point is that with regard to privity in the particular circumstances of this statute, it's talking about litigation privity.

[00:20:34] Speaker 00:
It's talking about litigation privity because it is precluding litigation before the board.

[00:20:41] Speaker 00:
And the trial practice guide's consistent with that, and Taylor's consistent with that.

[00:20:45] Speaker 00:
And I think it's telling Judge Wallach that the standard that my friend proposes in their supplemental brief, which is, by the way, a standard that was never, never presented to the board, is a mushy all of the circumstances and facts, which is effectively a know-it-when-we-see-it standard.

[00:21:02] Speaker 00:
That's the whole reason why the court rejected the doctrine of virtual representation as it had come to be so expansively applied.

[00:21:11] Speaker 00:
and said that, really, virtual representation has to be limited to statutory circumstances, like a class action, where the statute says that a representative may step in on behalf of another if the other requirements of Rule 23 are met.

[00:21:24] Speaker 00:
But we're not going to just say, well, gee, party A was involved in litigation the first time around, and they had sort of the same general motivations, and the other party that we're seeking to preclude was in court, and they knew what was going on, so it's totally fair to

[00:21:39] Speaker 00:
to hold them liable.

[00:21:41] Speaker 00:
No, there are due process limitations.

[00:21:44] Speaker 00:
And certainly, PGS did not expect that it was going to get precluded from anything by the ION litigation in which it was not a party.

[00:21:53] Speaker 00:
Mr. Costanis, a couple of quick questions.

[00:21:55] Speaker 00:
Yes.

[00:21:55] Speaker 03:
There's a lot in the joint appendix that's marked confidential, like elements of the master purchase agreement, various letters or emails between ION and PGS.

[00:22:08] Speaker 03:
To what extent can we discuss that, any of that, in open court or in a written opinion?

[00:22:16] Speaker 00:
I think, Your Honor, a fair amount of that has been disclosed by the Board in public opinions.

[00:22:21] Speaker 00:
I'm a latecomer, as the Court may know, to this case, so I don't know all of the ins and outs of the protective order as I stand here.

[00:22:28] Speaker 00:
But to the extent that we can, if there is to be a written opinion in this case, that we need to work with opposing counsel, we'll be happy to do that.

[00:22:36] Speaker 00:
But I think there's a fair amount

[00:22:37] Speaker 00:
that can be discussed fairly publicly.

[00:22:39] Speaker 03:
So there is an indemnity clause here and here's my hypothetical.

[00:22:44] Speaker 03:
If there was an indemnity clause that said we promise that if you're ever sued for patent infringement

[00:22:54] Speaker 03:
we will cover any damages liability you have to deal with from that patent infringement suit.

[00:23:02] Speaker 03:
Likewise, we will fund any litigation that you have to endure in defending yourself against that patent infringement suit.

[00:23:14] Speaker 03:
Do you think that kind of indemnity agreement would be strong enough for us to draw a conclusion that

[00:23:25] Speaker 03:
the party that has been sued the indemnity is no longer the real party in interest in an IPR or at least the indemnitor and indemnity can be considered to be in privity so that if the indemnitor had in fact been sued more than a year before the petition had been filed then the petition is time barred.

[00:23:47] Speaker 00:
So the answer to both of your questions is no.

[00:23:50] Speaker 00:
The reason the answer to both of your questions is no

[00:23:53] Speaker 00:
is that the indemnity clause that you've just described is a fairly common type of indemnity clause that one would find in lots of different kinds of agreements, and as a commercial agreement between a customer and a manufacturer, a supplier and a customer.

[00:24:11] Speaker 03:
For me, just to let you know what I'm thinking, if an indemnity clause was written that way, and now I'm the purchaser of this product,

[00:24:20] Speaker 03:
Don't I feel like it's no skin off my nose if I'm sued and in fact I'm held to be liable for patent infringement because I'm not going to pay for anything and I don't even have to worry about the lawsuit itself because it's the manufacturer that's going to be running the show and handling the whole litigation.

[00:24:39] Speaker 03:
I'll be there, but I'll literally be there in name only.

[00:24:42] Speaker 00:
You see, but as I understood your hypothetical, you did not have an indemnity agreement that said that the manufacturer will control everything.

[00:24:49] Speaker 00:
And that's the upshot of the real party and interest standard, which we say is control.

[00:24:54] Speaker 00:
There doesn't seem to be any dispute coming, at least this morning, from the other side that means control of the trial practice.

[00:25:02] Speaker 04:
Isn't the power of the purse the power to lose?

[00:25:06] Speaker 00:
Well, the power may be to lose, but the power is not necessarily to control.

[00:25:11] Speaker 00:
And that's what's important in the statute.

[00:25:13] Speaker 00:
Now, if you had a different agreement that said, under these circumstances, we'll take over the litigation.

[00:25:19] Speaker 00:
and the consequences will be there in name only, then maybe you have a different case.

[00:25:25] Speaker 00:
But that's not the agreements that we have on this record.

[00:25:28] Speaker 00:
And as my friend pointed out quite correctly, there are different kinds of privities.

[00:25:36] Speaker 00:
And that's one of the reasons why Justice Ginsburg in footnote eight says we're not going to use that term.

[00:25:41] Speaker 03:
I think what you mean to say is there's different kinds of indemnity clauses.

[00:25:45] Speaker 03:
And I guess in your view, not all indemnity clauses are created.

[00:25:48] Speaker 00:
That's certainly true.

[00:25:49] Speaker 00:
But I'm also saying that there are different types of privity.

[00:25:52] Speaker 00:
And what you've described to me, Judge Chen, is a case where one might say that there is contractual privity.

[00:25:58] Speaker 00:
And if one would say for the substantive law of contracts in that circumstance that there is contractual privity, then

[00:26:06] Speaker 00:
that then all of the consequences in contract law that follow from that.

[00:26:10] Speaker 00:
But that's not what the due process clause expects.

[00:26:13] Speaker 00:
And again, we're talking about notice and opportunity to be heard as the basics of due process.

[00:26:19] Speaker 00:
A party under the circumstances of the indemnity clause that you've just described would not expect that a subsequent suit against it, even if totally indemnified, would somehow or another be a stoppage.

[00:26:31] Speaker 00:
And the same is true with regard to the application of litigation type estoppel to the Section 315b bar.

[00:26:39] Speaker 04:
Let me ask you a few questions.

[00:26:45] Speaker 04:
Mr. Quinn indicated, I guess you'll agree, that Western GECO is dissatisfied with all six of the PTAB's final written decisions as required by Section 319.

[00:26:56] Speaker 00:
It is.

[00:26:58] Speaker 04:
And therefore, Western GECO has the right to appeal from both the second

[00:27:01] Speaker 04:
first and second round IPRs.

[00:27:03] Speaker 00:
It absolutely does have a right to appeal from the final written decisions.

[00:27:08] Speaker 00:
But what is, but let's keep, that's an important distinction Judge Wallach.

[00:27:11] Speaker 00:
The appeal under section 320, I believe it is, comes from the final written decision.

[00:27:17] Speaker 00:
And at least with regard to the first round IPRs, those are the ones that are above the line on the caption.

[00:27:23] Speaker 00:
The only ones that we appear in here as a joint party with respect to those IPRs

[00:27:29] Speaker 00:
The section 319 final written decision that gets appealed to this court does not contain any holding whatsoever with regard to privity.

[00:27:40] Speaker 03:
So you're saying if the board says something extra in a reconsideration decision, that's blocked from being appealed?

[00:27:48] Speaker 00:
I don't think that's in the final written decision.

[00:27:52] Speaker 00:
I don't think that's part of the final written decision.

[00:27:54] Speaker 00:
And even in the reconsideration decision,

[00:27:57] Speaker 00:
the board could not resurrect that which in this IPR had been abandoned.

[00:28:02] Speaker 00:
And I want to make sure that the court understands the chronology with regard to the abandonment.

[00:28:06] Speaker 04:
Ayan wasn't a party to the second round.

[00:28:09] Speaker 04:
No.

[00:28:10] Speaker 00:
It did not even attempt to join.

[00:28:13] Speaker 00:
So that's why the second round are captioned now with PGS's settlement in Ray, Western GCO.

[00:28:19] Speaker 04:
But... Ayan doesn't have the right to defend the final written decisions in the second round.

[00:28:25] Speaker 04:
Right.

[00:28:26] Speaker 04:
PTAB decision in its favor.

[00:28:29] Speaker 04:
Right.

[00:28:30] Speaker 00:
We're here strictly with regard to the first set of above-the-line so-called first round ideas.

[00:28:35] Speaker 04:
So what prevents us from hearing the appeals from the final written decisions in the first round as in-ray cases?

[00:28:44] Speaker 04:
No, one party.

[00:28:47] Speaker 00:
You could hear them as in-ray cases and we'd sit down and you'd have to decide this

[00:28:52] Speaker 00:
without our help.

[00:28:54] Speaker 00:
But the fact of the matter is that we are a party, as a joined party to that one.

[00:28:59] Speaker 00:
They're trying to overcome it largely not through the merits, but through this procedural bar of 315B.

[00:29:05] Speaker 00:
They say that that case should not have been filed in the first place.

[00:29:08] Speaker 00:
So we're here defending and saying, no, the board was proper to be able to decide those.

[00:29:14] Speaker 00:
And our arguments, of course, you'll consider or not

[00:29:17] Speaker 00:
with regard to the second round IPRs.

[00:29:19] Speaker 00:
But the point, Judge Chen, to go back to the chronology is this.

[00:29:24] Speaker 00:
In the preliminary patent donor response, they raised no question about it.

[00:29:28] Speaker 00:
They said privity and real party and interest.

[00:29:31] Speaker 00:
In the patent donor response after institution, which is an appendix 1240 and 1245, they argue only real party and interest.

[00:29:41] Speaker 00:
You will not find privity argued there.

[00:29:44] Speaker 00:
PGS then points out in its reply to this that the real part, that the privity issue has been waived.

[00:29:53] Speaker 00:
And that's at page 1450 of the appendix.

[00:29:56] Speaker 00:
At the hearing, at 1564 to 1678, which is the entirety of the hearing, which is in the appendix, you will not hear Western GCO disagree with that assertion.

[00:30:08] Speaker 00:
And then the final written decision at pages 33 to 38 addresses one thing and one thing only.

[00:30:13] Speaker 00:
which is real party, not privity.

[00:30:15] Speaker 00:
So under decisions like Judge Wallach's, your decision for the court in nuvasive, they're done.

[00:30:23] Speaker 00:
They did not preserve it with regard to the first round IPRs.

[00:30:27] Speaker 00:
And the fact that they tried to smuggle it in in the rehearing petition just goes too far.

[00:30:33] Speaker 00:
And the waiver issue is one of two reasons, by the way, why this case would be a particularly bad vehicle.

[00:30:40] Speaker 03:
To engage the legal standard district court like let's say the district court grants summary judgment and then the losing party raises something in a motion for reconsideration and Then the district court entertains that additional argument and then But then says you still lose and then that goes up on appeal to us but we say

[00:31:09] Speaker 03:
Oh, we don't have to worry about what the district court addressed in that recon decision.

[00:31:15] Speaker 03:
That wasn't part of the original grant of summary judgment.

[00:31:20] Speaker 03:
That's waived.

[00:31:22] Speaker 03:
Is that what we would say?

[00:31:23] Speaker 00:
You could say that.

[00:31:24] Speaker 00:
And of course, waiver is discretionary with the court.

[00:31:26] Speaker 00:
If the court absolutely wants to reach this issue, I can't stop it.

[00:31:30] Speaker 00:
But the fact of the matter is that this issue was not ventilated adequately in front of the board.

[00:31:38] Speaker 00:
And it wasn't the subject of a final written decision.

[00:31:42] Speaker 00:
In a district court case, as you've suggested, Judge Chin, I think what you'd have is you'd have review only of the reconsideration decision, which is generally in district court appeals, reviewed only for extraordinary abuse of discretion to deny a rehearing, especially when you're trying to bring something in that could have been brought in.

[00:32:01] Speaker 04:
No, Judge Chin's hypo was it was granted and then ruled against.

[00:32:08] Speaker 00:
on the merits.

[00:32:11] Speaker 00:
But I don't think there's a distinction at that point there because you're still at reconsideration.

[00:32:18] Speaker 00:
Because the question to grant reconsideration or not is, I guess what you're saying is it's a granted reconsideration.

[00:32:24] Speaker 00:
Basically I'm going to reconsider it and then I'm on the merits.

[00:32:28] Speaker 00:
If that were the hypothetical here, if that were the case here then that's fine.

[00:32:33] Speaker 00:
But they basically said, look, we've dealt with all of this.

[00:32:36] Speaker 00:
And you can't read their discussion, their mention actually, their bare mention of privity in that decision is referring to anything other than we dealt with this in the institution decision.

[00:32:48] Speaker 00:
It doesn't magically put it into the final written decision.

[00:32:52] Speaker 00:
So the waiver problems are one reason why this case would be a very bad vehicle to make law for everybody.

[00:32:59] Speaker 00:
There are actually two other reasons, one of which is that

[00:33:02] Speaker 00:
The standards, both.

[00:33:03] Speaker 00:
I'm a little confused about this point.

[00:33:06] Speaker 02:
Are you saying that if the board definitively resolves a real party in interest or a privity decision in the institution decision, and it's not raised again in the final decision, that we can't review that?

[00:33:23] Speaker 00:
If it definitively resolves it in the institution decision and doesn't address it in the final decision.

[00:33:31] Speaker 02:
Patentee says no, you know, the time bar applies here because this is actually there's a real party in interest that was sued more than a year before.

[00:33:40] Speaker 02:
And the board says we don't find the time bar here.

[00:33:44] Speaker 02:
No real party in interest.

[00:33:46] Speaker 02:
And then the merits of the IPR just goes on the patentability questions.

[00:33:52] Speaker 02:
Are you saying that we can't review that collateral threshold issue?

[00:33:55] Speaker 02:
I think that's right, and I think that's consistent, Judge Hughes, with... That seems very odd to me because, I mean, wouldn't the same reasoning apply to whether a patent is a CBN patent or not, and appropriate for review?

[00:34:11] Speaker 02:
If they institute and say it's a CBN patent, but in the actual file determination, just say whether it's valid or not, then that would seem, in your view, to be insulated from review.

[00:34:24] Speaker 02:
I obviously don't agree with any of these decisions that allow us to make these collateral attacks, but I'm bound by them.

[00:34:32] Speaker 02:
And so if we're allowed to review them, I don't see how the board can, in hiding it in an institution decision and refusing to mention it at all in a final decision, could insulate it from review.

[00:34:46] Speaker 00:
Well, I guess Judge Hughes, and perhaps the reason that I'm giving the answer that I am that you're reacting to,

[00:34:53] Speaker 00:
is that we have here far more than just a board failure.

[00:34:56] Speaker 00:
We have Western GECO's failure.

[00:34:58] Speaker 00:
Western GECO's affirmative abandonment after the institution decision.

[00:35:03] Speaker 02:
Well, I get that.

[00:35:04] Speaker 02:
That's a different issue.

[00:35:05] Speaker 02:
But you seem to rely heavily on the fact that it wasn't in the board's final written decision.

[00:35:11] Speaker 02:
And to me, that seems different than just saying they abandoned it.

[00:35:15] Speaker 00:
Let me rephrase it, because I think I will make the point clearer.

[00:35:18] Speaker 00:
There's a reason it's not in the final written decision.

[00:35:21] Speaker 00:
The reason it's not in the final decision is that they gave it up.

[00:35:24] Speaker 00:
So the board can't be faulted for not having decided it in the final written decision because they gave it up.

[00:35:29] Speaker 00:
They were told by PGS that they had waived it and they never said no, that's wrong.

[00:35:34] Speaker 02:
Let me ask you a follow-up question about it even because it still seems to be problematic.

[00:35:40] Speaker 02:
If you fight out these threshold decisions in the institution decision and the board rejects

[00:35:49] Speaker 02:
the argument and said, no, we're going to institute.

[00:35:51] Speaker 02:
We don't think there are any threshold bars here.

[00:35:54] Speaker 02:
Why would they waste their time re-arguing it?

[00:35:57] Speaker 02:
Because they have time limitations.

[00:35:59] Speaker 02:
A lot of these cases have multiple claims.

[00:36:01] Speaker 02:
They have page limitations.

[00:36:03] Speaker 02:
They've lost.

[00:36:05] Speaker 02:
Why do they have to re-raise it in order to preserve it for review by us?

[00:36:11] Speaker 00:
Well, I think it hadn't been decided definitively at that point, because obviously they kept fighting on the real party and interest issue.

[00:36:18] Speaker 00:
So I think that's a

[00:36:19] Speaker 00:
and answer on this record.

[00:36:22] Speaker 00:
And I think that actually brings me to the other couple of reasons why this would be a bad vehicle to go in that direction.

[00:36:28] Speaker 03:
Let's move on from waiver.

[00:36:30] Speaker 00:
Well, on the merits, our privity argument is exactly right.

[00:36:33] Speaker 00:
It's consistent with Taylor.

[00:36:34] Speaker 00:
It's litigation preclusion.

[00:36:36] Speaker 03:
Is it your understanding that all of Taylor is about privity, the entire opinion?

[00:36:43] Speaker 03:
And so we should adopt

[00:36:47] Speaker 03:
every word of Taylor in trying to understand a privity inquiry in the context of a time bar for an IPR position?

[00:36:54] Speaker 00:
Well, to adopt is probably too strong a word, but Taylor makes very clear that the virtual representation, the mushy virtual representation standard that my friend is arguing for in this case, based ostensibly on the law of assign or estable,

[00:37:10] Speaker 00:
is not the right rule for non-party preclusion.

[00:37:13] Speaker 03:
But Taylor says there are six exceptions to some rule against precluding a non-party from having his day in court.

[00:37:21] Speaker 03:
And so is it your view that that's really how the PTAB needs to think about whether there's privity between a petitioner and some prior litigant?

[00:37:33] Speaker 03:
It's these six factors.

[00:37:37] Speaker 00:
I think I can comfortably say that the court could embrace Taylor.

[00:37:41] Speaker 00:
But again, remember that the language in the statute is what you're having to interpret and to apply.

[00:37:45] Speaker 00:
It's real party and interest.

[00:37:47] Speaker 00:
Again, I think we're past that because we're arguing about privity here.

[00:37:51] Speaker 00:
And then there's privity, which is a term which Justice Ginsburg tried to avoid.

[00:37:55] Speaker 03:
But what we do know- Right, so that's the problem that I'm having with trying to understand how does Taylor fit in this context where we are dealing exclusively about privity.

[00:38:07] Speaker 03:
And if it does fit, to what extent does it fit?

[00:38:11] Speaker 00:
So here's how Taylor fits.

[00:38:13] Speaker 00:
Taylor, consistent with the trial practice guide, consistent with Senator Kyle's comments, says privity is where the relationship between the parties is such that it is fair and it is appropriate to apply collateral estoppel in such a way as though they were actually there at the first trial.

[00:38:33] Speaker 00:
There might be some different facts than what we have here that might result in privity in a particular circumstance and not

[00:38:39] Speaker 00:
result in privity in another circumstance.

[00:38:42] Speaker 00:
But what we have on these facts here is, the inquiry is, is it fair and appropriate to bind PGS to ions in ability

[00:38:56] Speaker 03:
Yes, no, I understand all of that.

[00:38:58] Speaker 03:
We know about all the generalities.

[00:38:59] Speaker 03:
The question is, let's get down into the plumbing now and figure out what parts of Taylor fit in this inquiry and why.

[00:39:09] Speaker 00:
I would say that anything that deals with a relationship between the parties that allows for one party to be collaterally stopped by the other, any of those factors.

[00:39:19] Speaker 00:
And again, the trial practice guide specifically cites and relies on Taylor.

[00:39:24] Speaker 00:
Judge Chen, to that point, what my friend here is arguing is that not just that they should prevail in this case, but that all of the board's work in this area of real party and interest in privity up to this point has been incorrect.

[00:39:38] Speaker 00:
And that it's been resolved by a standard that is consistent with Taylor, that is consistent with the collateral estoppel standard that's set forth in Taylor.

[00:39:52] Speaker 00:
One other comment about the reliance on a sign or estoppel.

[00:39:57] Speaker 00:
The fact of the matter is that a sign or estoppel may not be long for this world in any event.

[00:40:02] Speaker 00:
There's a petition filed by Synopsys and the Synopsys Mentor case that's pending that very well may be granted by the Supreme Court that asks for a sign or estoppel to be narrowed or eliminated.

[00:40:12] Speaker 00:
That said, a sign or estoppel doesn't fit comfortably with litigation estoppel.

[00:40:17] Speaker 00:
it's a substantive rule of patent law that has to do with the expectations of commercial parties and transactions, not the due process clause limits of enforceability of judgment.

[00:40:29] Speaker 00:
Let me respond very quickly to the two substantive issues.

[00:40:31] Speaker 00:
The answer is substantial evidence review, factual findings.

[00:40:40] Speaker 00:
You pointed out exactly that the

[00:40:43] Speaker 00:
The board, in this case, relied upon the unrebutted evidence coming from Dr. Evans, in this case, who said, I find four different ways that a person of ordinary skill would be motivated to modify the prior art to add feathering.

[00:41:00] Speaker 00:
And that's... Even though nobody liked feathering?

[00:41:04] Speaker 00:
Well, there's not... For anticipation, teaching away is not part of the analysis.

[00:41:12] Speaker 00:
This is a 103, though.

[00:41:16] Speaker 03:
Single reference and classification.

[00:41:18] Speaker 00:
That's right.

[00:41:18] Speaker 00:
I'm sorry.

[00:41:19] Speaker 00:
With regard to 103, we're moving around so much here very quickly.

[00:41:25] Speaker 00:
With regard to the 103 issue, the fact of the matter is that those four are supported by the patent.

[00:41:31] Speaker 00:
We didn't have a teaching away argument.

[00:41:34] Speaker 00:
We're not faced with a teaching away argument here.

[00:41:37] Speaker 00:
And quite frankly, if you look even at the workman reference, the appendix 505, columns 3, column 3, line 58, to column 4, line 8, the streamer control processor is for deciding when and calculating how much the streamer should be repositioned.

[00:41:54] Speaker 00:
The fact that the feather angle problem was solved by feathering in the opposite direction was not an inventive leap.

[00:42:02] Speaker 00:
And that's what Dr. Evans testified to.

[00:42:05] Speaker 00:
There was no contrary evidence.

[00:42:07] Speaker 00:
The board made factual findings.

[00:42:09] Speaker 00:
Unless the court has further questions at this point, thank you.

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

[00:42:28] Speaker 01:
Thank you, Judge Wallach.

[00:42:29] Speaker 01:
On the last point on feather angle, what he said is that there was a motivation to modify the additional prior arc to add feather angle mode.

[00:42:36] Speaker 01:
An expert never offers evidence on where you get feather angle mode from in the first place.

[00:42:42] Speaker 01:
That's the fundamental flaw, and that's why this was wrong as a matter of obviousness.

[00:42:46] Speaker 01:
Now, I want to turn back to the issue of waiver, because it's gotten so much attention from the other side, because they don't want the court to actually grapple with the merits of the standard of privity.

[00:42:55] Speaker 01:
And Judge Hughes, the questions you were asking on that are

[00:42:58] Speaker 01:
go directly to the point here, which is, number one, they seem to be ignoring the effects of Wi-Fi 1, which I understand your honor disagreed with, but they seem to be ignoring the effects of that.

[00:43:08] Speaker 01:
And second of all, this is entirely different than NUVASIF, which they cite.

[00:43:12] Speaker 01:
I briefed NUVASIF, and the argument in NUVASIF was that they had specifically abandoned the argument by telling the board at oral argument.

[00:43:21] Speaker 01:
They were asked the question, are you advancing this substantive issue of patentability?

[00:43:25] Speaker 01:
The answer was no.

[00:43:27] Speaker 01:
There was nothing like that that happened here, and in fact, quite the opposite.

[00:43:30] Speaker 01:
You have us, and you can look again at Appendix 1303 to 1308.

[00:43:35] Speaker 01:
It is in the first round IPRs, specifically raising issues related to the issue of privity.

[00:43:41] Speaker 03:
When you look at the patent owner response... Is that your request for reconsideration?

[00:43:45] Speaker 01:
No.

[00:43:46] Speaker 01:
Well, that is our request for reconsideration of the denial of leave to file a motion for discovery.

[00:43:52] Speaker 01:
It is not our request for reconsideration at the end of the case.

[00:43:56] Speaker 01:
That's Appendix 364, which also specifically raises the issue of privity.

[00:44:02] Speaker 01:
And indeed, while our patent owner response, I admit, doesn't use the term privity, if you look at the arguments we're making at 1242,

[00:44:08] Speaker 01:
We're making arguments about the relationship that go to privity.

[00:44:11] Speaker 01:
People are using RPI as a shorthand.

[00:44:14] Speaker 01:
And they were doing the same thing.

[00:44:16] Speaker 01:
If you look at the opening brief, the red brief that they filed in this case, they said we raised privity and RPI 21 times.

[00:44:23] Speaker 01:
They said that the board had correctly decided the issue of privity at red brief 66 to 67.

[00:44:28] Speaker 01:
Now, in the supplemental brief, they've decided, well, we've waived the issue.

[00:44:32] Speaker 01:
There's nothing that's waived here.

[00:44:33] Speaker 01:
The court has to reach the issue.

[00:44:36] Speaker 01:
Now, when you do reach the issue,

[00:44:38] Speaker 01:
And by the way, to the extent that we're talking about real party and interest, opportunity to control can be enough.

[00:44:45] Speaker 01:
You don't actually have to have actual control.

[00:44:47] Speaker 01:
And to some of the questions that I think you were asking, Judge Shin, at the end of the day, if it's your wallet that's at stake, there's a pretty good argument that you are the real party in interest here.

[00:44:57] Speaker 01:
The court doesn't have to decide that on these facts, because as we've articulated, the facts here

[00:45:03] Speaker 01:
when you look at the relationship are extensive and show that there is a close, tight relationship in ways related to the pandid technology.

[00:45:13] Speaker 01:
Now, turning to Taylor, Taylor talks about raise judicata.

[00:45:19] Speaker 01:
It talks about whether or not you can be bound by a judgment.

[00:45:22] Speaker 01:
It does not talk about privity at all, hence footnote eight, much less in all circumstances.

[00:45:29] Speaker 01:
And when you look at the legislative history, Congress didn't talk about Taylor.

[00:45:33] Speaker 04:
Congress talked about California physicians, a California case that made the... Mr. O'Connor, I'm going to let you run over a little bit, but not as long as I did Mr. Costanzas, because he was responding to questions.

[00:45:46] Speaker 04:
If there are questions, I'll let you keep going.

[00:45:48] Speaker 01:
Thank you.

[00:45:49] Speaker 01:
Well, to finish up this point, thank you, Judge Wallach.

[00:45:51] Speaker 01:
To finish up this point, California physicians talks about reaching the limits of due process.

[00:45:57] Speaker 01:
And let's just keep in mind what we have here.

[00:45:59] Speaker 01:
As FAA versus Cooper tells you, you have to look at what is the most analogous.

[00:46:03] Speaker 01:
And whatever you think about the doctrine of a sign or estoppel, the application of the concept of privity when it is going to an estoppel in that context is what is most analogous here.

[00:46:15] Speaker 01:
And Intel versus ITC rejects the very kinds of arguments that you hear them making.

[00:46:22] Speaker 01:
And you have to remember what the context is.

[00:46:24] Speaker 01:
At the end of the day here, Congress could have said,

[00:46:28] Speaker 01:
If a patent has been subject to litigation at all, we're not going to allow it to be subject to an IPR.

[00:46:34] Speaker 01:
Congress didn't go that far, but Congress didn't limit it to the people it had been asserted against.

[00:46:39] Speaker 01:
It struck a middle ground.

[00:46:40] Speaker 01:
That middle ground is consistent with this court's case law in the assigner-stopper context, and I'm happy to answer any questions the court may have.

[00:46:47] Speaker 01:
You're done.

[00:46:48] Speaker 01:
Thank you, Judge Wallach.

[00:46:49] Speaker 01:
Thank you for your answer.

[00:46:52] Speaker 04:
As I expected, good arguments from both sides.

[00:46:54] Speaker 04:
Thank you.