[00:00:00] Speaker 04: to 171481, World's Ink vs. Bungie. [00:01:20] Speaker 00: Thank you, Chief Judge Crost. [00:01:25] Speaker 00: May it please the court? [00:01:27] Speaker 00: On January 8th of this year, this court held en banc in the Wi-Fi 1B Broadcom case that time bars for filing IPRs under 35 USC 315B are indeed appealable. [00:01:40] Speaker 00: In this case, in this proceeding below at the board proceedings, Patent Owner Worlds made its own 315B argument. [00:01:49] Speaker 00: Namely, Patent Owner of Worlds argued that non-party act division had, at minimum, an opportunity to provide input and to control these proceedings below. [00:01:59] Speaker 04: And the evidence... But the problem is, you had this set of consolidated IPRs going up and moving forward at the same time. [00:02:07] Speaker 04: And whereas you've appealed the real party and interest issue here, you failed to appeal it in those cases. [00:02:14] Speaker 04: And so why is the other side not correct that you've got a problem on issue preclusion, even if we were to agree with you that on the real party and interest question, at least more should have been done? [00:02:26] Speaker 00: Your Honor, as to that point on the estoppel question, we've addressed this in page 30 of our reply. [00:02:31] Speaker 00: And we feel that what Petitioner failed to address, what Bungie failed to address was the Utah construction and mining case, which lays out a series of additional agency requirements that are [00:02:44] Speaker 00: relevant and crucial indeed to ask in in deciding whether a stopper should apply on agency decisions. [00:02:51] Speaker 00: There are a number of points there. [00:02:53] Speaker 00: First of all, the Wi-Fi One case makes clear that the 315 bar is about establishing agency authority to act. [00:03:02] Speaker 00: It's a jurisdictional question. [00:03:05] Speaker 01: Am I wrong in vaguely recalling that issue preclusion applies to issues decided in the course of [00:03:14] Speaker 01: deciding jurisdiction. [00:03:18] Speaker 01: Well, obviously, I don't think I'm wrong about that. [00:03:24] Speaker 00: I don't have the knowledge right now to take issue with what you've said, but I would say that one of the primary prongs in the Utah construction mining test is indeed whether the agency had jurisdiction to act in the first place. [00:03:36] Speaker 00: And so what we're addressing here is the fact that it was, it was adjudicated at the only piece of what you call agency jurisdiction. [00:03:43] Speaker 01: And I guess the agency sometimes calls jurisdiction that the timing rule is this issue. [00:03:50] Speaker 01: You litigated it before the board. [00:03:52] Speaker 01: And then in those three proceedings, it came to an end because there was no appeal. [00:04:00] Speaker 01: And there's actually a difference. [00:04:04] Speaker 01: You may not care about those patents anymore. [00:04:07] Speaker 01: But I'm trying to figure out why there shouldn't be issue preclusion about an issue that, on its merits, is pretty serious. [00:04:17] Speaker 00: You're right, Your Honor. [00:04:18] Speaker 00: It's actually very serious. [00:04:18] Speaker 00: And indeed, as Judge O'Malley mentioned in the Wi-Fi 1 concurrence, it's actually one of the fundamental protections of rights to patent owners in this process. [00:04:28] Speaker 00: And if we look at the Utah construction mining test, one of the things is the ability to fully and fairly litigate. [00:04:34] Speaker 00: Now, what we would look to it. [00:04:37] Speaker 03: And I understand that there are fundamental fairness inquiries that need to be undertaken. [00:04:45] Speaker 03: But is the placement of the burden of proof, even if we thought it was wrong here, does that fall within that category of opportunity of fully and fairly litigate? [00:04:57] Speaker 03: You litigate it, and they may have reached a wrong decision. [00:05:01] Speaker 03: But it was still litigated. [00:05:04] Speaker 00: Your Honor, actually, that gets to a very important point. [00:05:06] Speaker 00: And I hope I answered your question here. [00:05:08] Speaker 00: One of the important points is that the agency came out against us on a question of law, in essence, first of all, which is the contract interpretation. [00:05:18] Speaker 00: And that, as we've set forth in our briefs, is a question of law. [00:05:21] Speaker 00: And the Federal Circuit does not need to defer to how the Patent Office decided the contract interpretation. [00:05:27] Speaker 04: Is there an exception on collateral estoppel for questions of law versus application? [00:05:34] Speaker 00: Is that the point you're making? [00:05:36] Speaker 00: No, Your Honor. [00:05:37] Speaker 00: Simply that the court here is not bound to interpret the agreement the way the agency did. [00:05:45] Speaker 00: And in terms of the burden of proof, Your Honor, I think what you're getting at perhaps is 316E, which is that the petitioner has the burden of proof going forward. [00:05:54] Speaker 00: Now, in terms of proving whether the Utah construction factors are met here, [00:06:01] Speaker 00: I think that the mere fact that there is an error of law by the board and how they interpreted the contract and an error in law in how they applied the burden confirms that, in fact, those factors are not met. [00:06:15] Speaker 00: The Utah construction factors are not met. [00:06:17] Speaker 04: There wasn't. [00:06:17] Speaker 04: I'm really not clear on what you're saying. [00:06:19] Speaker 04: So I've got just one quote for Utah construction. [00:06:21] Speaker 04: I don't have the case with me. [00:06:22] Speaker 04: But exactly what in Utah? [00:06:26] Speaker 04: What are you pointing to that because this was [00:06:29] Speaker 04: The board's decision was based ultimately here on a legal determination, construing a contract, that that somehow is an exception? [00:06:38] Speaker 00: No, Your Honor, not an exception, but it is evidence that the factors of the Utah construction tests have not been met. [00:06:44] Speaker 00: So I have page 30 of our gray brief open, and we get into the factors. [00:06:47] Speaker 00: We lay out the factors at the bottom, beginning page 30 of our reply brief. [00:06:51] Speaker 00: I'll just note that Bungie did not cite to this case at all. [00:06:54] Speaker 00: There really is no analysis by Bungie on this point. [00:06:56] Speaker 00: We have first factor, the agency must have jurisdiction to resolve the issue. [00:07:01] Speaker 00: Well, in fact, this is the fundamental question. [00:07:03] Speaker 00: If the agency doesn't have jurisdiction based on 315B, then they don't have jurisdiction to resolve whether Activision was indeed a real party in interest or not. [00:07:12] Speaker 00: The second factor, the agency must act in a judicial capacity. [00:07:15] Speaker 04: I'm sorry. [00:07:15] Speaker 04: Yes, sir. [00:07:16] Speaker 04: Of course they can decide whether they're a real party. [00:07:18] Speaker 04: I mean, you're asking for a remand, so we're going to tell them to decide it in your favor. [00:07:23] Speaker 00: Your Honor, actually, that does raise another question, which is, [00:07:27] Speaker 00: As Judge Ronto wrote in the Owens-Corning v. Fastfeld case, where there is only one outcome, and that's what we believe here, based on section 7A, 15J of the agreement at issue here, there is only one outcome. [00:07:40] Speaker 00: There's only one outcome. [00:07:41] Speaker 00: There's only one interpretation of that provision that gives effect to that entire provision. [00:07:46] Speaker 00: And that is that Activision had, in effect, a legal opportunity to control the IPRs, or at least to review the things that Bungee was doing in preparation for this. [00:07:57] Speaker 00: Given that, and given the fact that Bungie has not asked for a remand, we believe that this court can decide this question without a remand. [00:08:03] Speaker 00: It can decide that, in fact, this contract does support Activision having, at minimum, an opportunity to control, as stated under the Taylor v. Sturgill case from the Supreme Court, that the board applies. [00:08:14] Speaker 04: I'm still not understanding why you think the fact that the agency must have jurisdiction to resolve the issue is not met here. [00:08:22] Speaker 04: It depends, I guess, on what we think the issue is. [00:08:26] Speaker 04: But if the issue is whether or not there was a real party in interest here, that question, you're saying that the board didn't have jurisdiction to decide that issue, and that's why there's no collateral estoppel? [00:08:39] Speaker 04: Your Honor. [00:08:39] Speaker 04: I understand what you're saying. [00:08:40] Speaker 04: I understand the point. [00:08:42] Speaker 04: The point is that if there's a real party interest problem, then the board doesn't have jurisdiction to resolve the merits of the IPR. [00:08:50] Speaker 04: Correct, Your Honor. [00:08:51] Speaker 04: Patentability. [00:08:54] Speaker 04: Can you tell me what you're saying about the jurisdictional point? [00:08:57] Speaker 00: Your Honor, my point is, once again, it resides in the fact that if the agency has to have jurisdiction and if the facts point to one conclusion, which is that the agency didn't have jurisdiction, then it answers the first factor. [00:09:09] Speaker 00: But Your Honor, what I would point out is that we don't need to decide that the Utah construction test is not met based on that first factor alone. [00:09:17] Speaker 00: We have other factors. [00:09:19] Speaker 00: that the board must follow procedures sufficiently similar to those used in trials. [00:09:23] Speaker 00: And what we don't have here is an opportunity to get discovery. [00:09:26] Speaker 00: Our discovery motion was denied, despite the fact that we had. [00:09:29] Speaker 04: Well, it does follow procedures on discovery. [00:09:32] Speaker 04: It just denied your request for discovery. [00:09:34] Speaker 04: That doesn't mean that they, I mean, doesn't this suggest must follow procedures sufficiently similar to those during trials? [00:09:41] Speaker 04: Again, you're quibbling or arguing, maybe even correctly, that you should have been allowed discovery. [00:09:47] Speaker 04: But are you suggesting that because in the prior proceedings they dismissed it or they rejected your argument and they wouldn't allow discovery that that subsection two applies here? [00:09:58] Speaker 00: I do. [00:09:59] Speaker 00: I absolutely agree with that, Your Honor. [00:10:00] Speaker 00: And the fact that there was a motion made for discovery, there was a request for documents, those documents were solely in the hands of Bungee. [00:10:06] Speaker 00: There was no opportunity aside from what amounts to a stroke of luck finding, and some diligence, of course, [00:10:14] Speaker 00: finding the agreement online between Activision and Bungie regarding the Destiny products, this is indeed, once again, getting into this important fundamental protection to a patent owner on the 315B. [00:10:27] Speaker 04: The point of collateral estoppel is that you have the ability to appeal those rulings as you have in connection with these IPRs, but in the absence of an appeal, it's final. [00:10:39] Speaker 04: I mean, whether it's a discovery [00:10:41] Speaker 04: dispute you had that you think the board got wrong, but does the fact that the board had the discovery request that it rejected and failed to appeal, the rejection of that discovery request, take it out of the collateral stop-up bucket? [00:10:55] Speaker 00: Your Honor, again, I believe based on these factors, it does. [00:10:58] Speaker 00: What we've dealt with here is a situation where the board did not follow procedures sufficiently similar to those used in trials. [00:11:04] Speaker 00: They didn't give an opportunity for discovery. [00:11:07] Speaker 00: You're correct. [00:11:08] Speaker 00: We did make a motion for it, and they denied it. [00:11:10] Speaker 00: And you could have appealed that. [00:11:12] Speaker 00: You're correct, Your Honor. [00:11:14] Speaker 00: We could have... Can I step back? [00:11:17] Speaker 01: At page 30 of your brief, where you... 38, Your Honor? [00:11:22] Speaker 01: 30 of your reply, where you have, not in quotes, under the Utah construction test, one, the agency must have jurisdiction to resolve the issue, and three more things. [00:11:31] Speaker 00: Yes, Your Honor. [00:11:32] Speaker 01: I'm not finding any language in Utah construction about jurisdiction. [00:11:37] Speaker 00: Can you help me? [00:11:39] Speaker 00: Your honor, it's interesting you asked that question. [00:11:41] Speaker 00: We did quite a bit of looking in that as well. [00:11:43] Speaker 00: Utah construction has been interpreted, usually what I would point to is the same. [00:11:47] Speaker 01: Does Tennessee Elliott say that? [00:11:48] Speaker 01: I don't have that one in front of me. [00:11:50] Speaker 00: It does, your honor. [00:11:50] Speaker 00: That's where I think the, and I apologize, this is my recollection during the preparation here, the Tennessee v. Elliott cases where they interpret Utah construction to require these steps. [00:12:03] Speaker 00: They cite to it, although the factors really come out [00:12:05] Speaker 00: sort of in the progeny of Utah construction. [00:12:08] Speaker 01: And B&B doesn't say anything, does it, specifically singling out jurisdiction? [00:12:15] Speaker 00: I don't believe so, Your Honor. [00:12:22] Speaker 01: Can I ask you another question? [00:12:24] Speaker 01: Sure. [00:12:25] Speaker 01: Let's put aside any distinction between jurisdiction and other things. [00:12:29] Speaker 01: Let's put aside distinctions between law and facts. [00:12:34] Speaker 01: Let's assume for a minute that whatever the adjudicatory process in the IPR was in the three proceedings that you ended up not pursuing were full and fair. [00:12:49] Speaker 01: You could have gotten correction of anything that was harmful. [00:12:53] Speaker 01: Is there nevertheless some objection to some reason not for us or the board [00:13:02] Speaker 01: but I guess at this point us to apply issue preclusion. [00:13:06] Speaker 00: Is there a reason not to, Your Honor? [00:13:08] Speaker 01: Right. [00:13:08] Speaker 01: I mean, so suppose all these elements are met. [00:13:12] Speaker 01: Is there anything about the essential simultaneity of these proceedings that should take the matter outside the scope of issue preclusion? [00:13:24] Speaker 01: There's a peculiar and I think on net probably unhappy consequence of saying to you, [00:13:33] Speaker 01: In order to preserve your real party and interest argument in the three cases you care about, you had to take an appeal in all six. [00:13:41] Speaker 01: That's not a happy systemic consequence. [00:13:45] Speaker 01: Does issue preclusion law allow consideration of that as a reason not to give issue preclusion? [00:13:55] Speaker 00: Your Honor, I don't have an answer for you right now other than to say with an agency situation, I would still point to the Utah construction test. [00:14:03] Speaker 00: I think from a matter of judicial economy, you certainly, I would expect, would not want people to appeal things unnecessarily. [00:14:10] Speaker 00: What we've done is we've appealed the cases, as you said, that have outcomes that need to be addressed. [00:14:18] Speaker 00: While there are other decisions out there, they were argued simultaneously. [00:14:26] Speaker 00: The issues are the same in effect. [00:14:29] Speaker 03: Would you agree that, for instance, just to take an example, [00:14:33] Speaker 03: if the different IPR, some of the same prior art was at issue. [00:14:40] Speaker 03: And in that IPR, the board assessed what that prior art meant, what was covered by that prior art. [00:14:47] Speaker 03: And then you had, because maybe it's a different combination of prior art, but you still had one of those same pieces. [00:14:53] Speaker 03: In this appeal, you would not be able to challenge that prior art determination [00:15:02] Speaker 03: if it had become final. [00:15:03] Speaker 03: Do you agree with that, that on the merits-based issues that you would be collaterally stopped? [00:15:10] Speaker 00: Your Honor, I believe that is an accurate statement, although where I would differentiate that from our situation here is we're talking about agency authority to act. [00:15:20] Speaker 00: And so we don't have a situation in that other, in the hypothetical that you've created that I understand. [00:15:27] Speaker 00: where the agency has acted when they shouldn't have been able to. [00:15:30] Speaker 00: Or they've interpreted an agreement in a way inconsistent with law in order to continue hearing the case when in fact the proper interpretation of the agreement would have shut them down and said you have no more ability to make these statements. [00:15:43] Speaker 03: Is there a distinction between making a determination for purposes of instituting IPR 1 and making a termination for purposes of instituting IPR 6? [00:15:57] Speaker 03: In other words, you're saying that even if I give up on my battle over whether they should have been allowed to institute IPR 1, that doesn't preclude me from battling over whether they could institute IPR number 6. [00:16:14] Speaker 00: Your Honor, I still come back to the Utah construction test, which simply says, as far as the factors that have to be applied here, these factors have simply not been met in either. [00:16:22] Speaker 00: What we didn't do was pursue an appeal that increased the court's workload unnecessarily. [00:16:28] Speaker 04: What about, are there any arguably, I mean, we don't know. [00:16:31] Speaker 04: I mean, the board didn't do an analysis of the collateral estoppel issues. [00:16:35] Speaker 04: So we've not evaluated the earlier consolidated grouping of IPR cases. [00:16:41] Speaker 04: Paul, I know, but what hasn't been brought up here, there might be distinctions between the type of argument that could have been made regarding the real party of interest. [00:16:52] Speaker 04: I mean, there could be differences. [00:16:54] Speaker 04: between what was in play in those IPRs and what was in play here? [00:16:59] Speaker 00: Well, certainly, your Honor, I think what you're getting at is, in fact, we have evidence of actual opportunity control, excuse me, we have evidence of opportunity control through this agreement. [00:17:09] Speaker 00: Had we been entitled to discovery, we certainly could have found differences of how the patents were treated. [00:17:14] Speaker 00: In other words, Bungie filed two IPRs against one patent and single IPRs against other patents. [00:17:20] Speaker 00: We don't know why other than [00:17:22] Speaker 00: That's what they chose to do. [00:17:23] Speaker 03: Why has control the test? [00:17:26] Speaker 03: You seem to be conceding that point, and that doesn't make a lot of sense to me. [00:17:30] Speaker 03: The statute uses much broader language in that. [00:17:33] Speaker 03: Legislative history contemplated a much broader concept than that in terms of privies and proxies. [00:17:39] Speaker 00: Correct, Your Honor. [00:17:40] Speaker 00: What we've focused on is, for example, we haven't come in and tried to argue a change in the policy that the board is implementing, which is the Taylor v. Sturgis factors. [00:17:51] Speaker 00: One of those is control or opportunity to control. [00:17:54] Speaker 00: Because we were denied discovery, we've never been able to go out and get the evidence of the actual control or the actual communications between Bungie and Activision that led to an indemnification demand that led to... I guess what I'm asking is why are you conceding that Taylor is a governing principle in connection with this particular statute? [00:18:14] Speaker 00: Oh, and that... I shouldn't be... I hope I'm not being interpreted as conceding that point, Your Honor. [00:18:19] Speaker 00: One of the practice guide [00:18:21] Speaker 00: statements from the USPTO is the party who desires review. [00:18:25] Speaker 00: Now you're right, the petitioner, the statute 315B says petitioner, real party in interest, or privy. [00:18:31] Speaker 00: And so we've been focusing on the real party in interest because of the Taylor v. Sturgill case. [00:18:35] Speaker 00: But you're correct that the practice guide of the USPTO says the party who desires review. [00:18:41] Speaker 00: Activision was an active litigation with Worlds for two and a half years before the Destiny product was put at issue and Bungie stepped in [00:18:49] Speaker 00: and six months later filed an IPR. [00:18:51] Speaker 00: Bungie wasn't around for two and a half years and suddenly the Destiny product gets noted up and they're there in the case. [00:18:58] Speaker 00: Now, did Activision desire review? [00:19:00] Speaker 00: Absolutely. [00:19:00] Speaker 00: But in terms of following what the board is saying and how the board is applying the law, we were simply working within their construct and we haven't come to you to ask for a change in law on that point. [00:19:11] Speaker 04: We far exceeded your time, so we'll restore some rebuttal. [00:19:14] Speaker 04: Thank you, Your Honor. [00:19:25] Speaker 02: I'm going to first start out with a point on the RPI that goes, Judge Smalley, to your last question about control and the Taylor factors and the emphasis there, but there's a critical factual point here to be clarified. [00:19:44] Speaker 02: I think it comes through in both briefs, but worth reiterating, and that is the litigation between Activision and Worlds. [00:19:52] Speaker 02: that is being referenced had nothing to do with Bungie. [00:19:56] Speaker 02: It's never had anything to do with Bungie. [00:19:57] Speaker 02: Bungie's never been a party to that. [00:19:59] Speaker 02: No Bungie product has ever been added to that litigation. [00:20:03] Speaker 01: It's a completely unrelated... But there was chatter about the possibility. [00:20:07] Speaker 02: There was a letter saying from World's Council to Activision's Council indicating they might want to add some products. [00:20:15] Speaker 02: Bungie products was listed [00:20:18] Speaker 02: as something they may want to add. [00:20:19] Speaker 01: And you haven't disputed that. [00:20:22] Speaker 01: When you think about control, case one and case two, there are two possibilities, right? [00:20:30] Speaker 01: Party in case one can control the party in case two. [00:20:34] Speaker 01: The other is the party in case two could have controlled the party in case one. [00:20:39] Speaker 01: So in this instance, you haven't disputed that. [00:20:45] Speaker 01: The question is a legally relevant one, whether Activision, which is the party in case one, could control Bungie in case two, namely the IPR. [00:20:56] Speaker 01: Even though that's usually the other way around in thinking about preclusion. [00:21:02] Speaker 02: Well, that is their argument, that Activision had an opportunity to control by virtue of this agreement. [00:21:08] Speaker 02: But a fundamental point here is the estoppel vehicle is [00:21:14] Speaker 02: the litigation case that had nothing to do with Bungie. [00:21:17] Speaker 02: The control vehicle is an agreement in an unrelated endeavor. [00:21:23] Speaker 03: What I don't understand is control is not the test under the statute. [00:21:27] Speaker 03: So why are we focusing so much on control or even Taylor, which didn't even address the statute, had to do with Article III standing, when the statute talks more broadly in terms of privity, when the legislative history [00:21:44] Speaker 03: cited California physicians didn't even mention Taylor. [00:21:49] Speaker 03: Why are we talking about it? [00:21:52] Speaker 02: It's a great question and that's what I wanted to address your honor. [00:21:55] Speaker 02: I agree with that 100% and would point to the legislative history that's in the practice guide that talks about emphasis on the practical situation. [00:22:06] Speaker 02: It talks about defining whether a relationship is [00:22:12] Speaker 02: sufficiently close so as to justify the application of the doctrine of estoppel. [00:22:18] Speaker 03: But California Physicians talks about the kind of thing where you're litigating as a proxy for someone else. [00:22:26] Speaker 03: So given this contract that says that you're tied together with respect to this product, even with respect to the intellectual property rights, and the threat [00:22:37] Speaker 03: of adding this, your product, to the other litigation, why isn't there at least enough from the existence of the contract to shift the burden to you to prove that you're not acting as their proxy? [00:22:54] Speaker 02: Okay, so I'll start out with the practical situation, right? [00:23:00] Speaker 02: And there's absolutely nothing to do with that litigation. [00:23:04] Speaker 02: It's a completely different contract. [00:23:07] Speaker 02: And in the California physician's test, or case you reference, the sufficiently close relationship, all that. [00:23:18] Speaker 02: But I also want to point out that the practice guide in the context of that discussion also makes clear that a party's relationship in an unrelated endeavor is not sufficient under this consideration. [00:23:31] Speaker 03: We're not bound by the practice guide, though, right? [00:23:33] Speaker 02: Well, the board is bound by the practice guide. [00:23:35] Speaker 02: But we're not. [00:23:37] Speaker 03: We're doing a statutory interpretation here as to what RPI means. [00:23:41] Speaker 02: We're analyzing whether the board abused its discretion or whether its findings are supported by substantial evidence. [00:23:49] Speaker 02: And I would say that a factor in that review is going to be whether the board's following their own rules and procedures. [00:23:57] Speaker 04: Well, the board did all they did. [00:24:01] Speaker 04: They didn't have other witnesses, right? [00:24:02] Speaker 04: There was no evidence before them other than the contract itself, right? [00:24:10] Speaker 04: So where were the factual findings when they were just construing the language of the contract? [00:24:16] Speaker 04: Your side came back to the extent that they should have, as I agree with Judge O'Malley, the burden should have shifted back to you all, whose burden it is, burden and persuasion. [00:24:29] Speaker 04: always rests with you in any event, but what you came back with was exclusively attorney argument. [00:24:35] Speaker 04: There was no evidence, right? [00:24:37] Speaker 02: Well, no, that's not correct. [00:24:39] Speaker 02: So two points there. [00:24:40] Speaker 02: One, the board looked at both their relationship. [00:24:43] Speaker 02: They did what they should have done under what you're pointing to as a requirement that this is not a singular focus on control. [00:24:53] Speaker 02: It's looking at the relationship. [00:24:54] Speaker 02: So the board did what they're supposed to do. [00:24:55] Speaker 02: They looked at the litigation, noted that Bungie was never involved in that case, no product was ever involved in that case, and then looked at the agreement in an unrelated endeavor and went through and looked at the content of the agreement and made an interpretation of that. [00:25:12] Speaker 02: As far as the evidence question, Your Honor. [00:25:14] Speaker 04: So the interpretation of the agreement would have been a legal conclusion. [00:25:19] Speaker 02: I think it's an evaluation of facts. [00:25:22] Speaker 03: So there isn't the question. [00:25:24] Speaker 03: I mean, once you have, I mean, you talk about a presumption, which doesn't even make sense to me because there's nothing in the rules that even anywhere references a presumption. [00:25:35] Speaker 03: There's no logic that would support the notion of an evidentiary presumption. [00:25:42] Speaker 03: So isn't the notion that they supplied the contract and therefore made a non-frivolous argument about the relationship between the parties [00:25:52] Speaker 03: Wasn't that enough to say that it was your burden to come back with actual information beyond the contract itself that would refute the notion that you were acting either collectively or even in protection of each other's interests? [00:26:09] Speaker 02: Yeah. [00:26:09] Speaker 02: Well, so two points in response. [00:26:11] Speaker 02: The contract is a neutral piece of evidence. [00:26:14] Speaker 02: It's not like this is world's evidence that they came forward with and it has to be counter bounced with some other piece of evidence. [00:26:20] Speaker 02: Both parties and the board were looking at a single document and trying to interpret what that means. [00:26:26] Speaker 03: But then they relied on your attorney argument in saying what it meant. [00:26:30] Speaker 02: Well, they rejected World's attorney argument and found our attorney argument more persuasive. [00:26:35] Speaker 02: But I wouldn't characterize that, as my friend has in the briefing, as being an instance where there's evidence on one side and nothing on the other. [00:26:43] Speaker 02: That's just not true. [00:26:44] Speaker 02: There's a document where the attorneys on both sides are arguing [00:26:48] Speaker 02: how that should be reasonably construed and the board listened to the arguments and found Bungie's arguments more persuasive. [00:26:56] Speaker 03: If you were to take general principles of contract construction, those include things like the overall relationship between the parties, including how the parties treated the agreement, both after it was entered into, anything that relates to [00:27:17] Speaker 03: the general circumstances, the practice in the industry, all of that. [00:27:21] Speaker 03: The board did not allow evidence of any of that and didn't consider it. [00:27:25] Speaker 03: So they're doing a contract interpretation without even having the tools necessary to engage in a contract interpretation. [00:27:35] Speaker 02: Well, I understand the point. [00:27:37] Speaker 02: I would say for this particular instance that this wasn't necessary for the issues that were being advanced on one side and being disputed on the other. [00:27:46] Speaker 02: And that is looking at the nature of the contract that you had Bungie creating a product and somebody selling it or distributing it for them. [00:27:57] Speaker 02: So it was a development publication agreement. [00:28:00] Speaker 02: And then the identified portions of the contract that were being pointed to with the assertion that this demonstrated actual control by Activision. [00:28:11] Speaker 02: uh, we're just not credible arguments and the arguments being advanced step back for a second. [00:28:16] Speaker 01: When you file your petition and I should know what, how this works, but did you have to file some sort of certification that you have identified all real parties and interests? [00:28:26] Speaker 02: That's correct, your honor. [00:28:27] Speaker 01: So that that's some evidence that you have done that then next stage, there's a contract contract. [00:28:35] Speaker 01: Let's assume, um, for purposes of this question that on its face, [00:28:39] Speaker 01: the relevant provision that we've all been talking about, sure sounds like it could well cover the three ways to clear intellectual property rights. [00:28:52] Speaker 01: Show that your product's not covered by the intellectual property, get permission from the owner, or kill the intellectual property. [00:28:59] Speaker 01: This is the third. [00:29:00] Speaker 01: This is one way of doing that. [00:29:02] Speaker 01: On its face, it sure sounds like some evidence to meet any reasonable burden of production. [00:29:09] Speaker 01: At that point, it is your burden of persuasion under APA 556D, because you're the one asking for relief, to show that you've actually met the there's no missing real party in interest. [00:29:25] Speaker 01: And yet the board in its discussion seems at that point to be placing, even at that point, to be placing the burden of persuasion on the other side. [00:29:35] Speaker 01: Isn't that wrong? [00:29:37] Speaker 02: That is wrong. [00:29:38] Speaker 02: So sticking with the... I mean, isn't that improper? [00:29:44] Speaker 02: Had they done that, that would be improper, but I don't think that's what they did. [00:29:48] Speaker 01: So if we... So like on page 506, this is in one of the institution decisions, patent owner has not shown that Activision has an opportunity to control this interparties review. [00:30:00] Speaker 01: On the premise that the contract is at least susceptible [00:30:06] Speaker 01: to the reading that it covers efforts to terminate the relevant IP, how is it proper for the board to be talking about what the patent owner has not shown at that stage where the issue is joined by evidence on some side as opposed to absolutely nothing? [00:30:29] Speaker 02: Based on the arguments that were being advanced, [00:30:31] Speaker 02: by World's that there are two provisions that in their view demonstrated control. [00:30:36] Speaker 02: And so the board taking that argument into consideration with the identified evidence and taking into account Bungie's argument about why those interpretations were wrong at face value, there's nothing wrong with the board saying that we've looked at this, we've listened to your arguments, and we don't find World's argument credible. [00:31:00] Speaker 03: At the bottom of page 509 of the appendix, the board says, accordingly, patent owner has not demonstrated that the agreement gives Activision any opportunity to control this proceeding. [00:31:13] Speaker 03: One, that puts the burden on the patent owner. [00:31:14] Speaker 03: Two, it limits the whole consideration to the question of control. [00:31:18] Speaker 03: And then they say, in addition, we note that petitioners expressly denied any control or funding of this proceeding by Activision. [00:31:26] Speaker 03: The petitioner represents to the board that the petitioner is solely responsible for the costs and control of each party's review. [00:31:33] Speaker 03: And then they say that on this record, we accept petitioners express representation. [00:31:39] Speaker 03: I mean, how is that not completely putting the burden on the patent owner and allowing attorney argument to substitute for evidence? [00:31:50] Speaker 02: Who's attorney argument? [00:31:52] Speaker 02: Because both parties were advancing nothing but attorney argument here. [00:31:55] Speaker 03: Because the other side's attorney argument said, this should at least open the door to further inquiry. [00:32:02] Speaker 03: And basically, your attorney argument just simply said, don't bother. [00:32:07] Speaker 03: We're going to promise you that they don't control us. [00:32:12] Speaker 02: I wouldn't characterize it that way. [00:32:13] Speaker 02: I would characterize it as there's a requirement that a petitioner make a representation, and the board takes the position, like the Patent Office does. [00:32:25] Speaker 02: In many other instances, when a party makes a representation, absent evidence to the contrary, they're going to accept that representation. [00:32:34] Speaker 03: Fair enough. [00:32:34] Speaker 03: Absent any evidence to the contrary or any non-frivolous assertion that that representation is not accurate. [00:32:43] Speaker 03: It's fine for the board to say, if nobody objects, we're not going to go behind this ourselves. [00:32:50] Speaker 03: We're not going to put a burden on ourselves as the board. [00:32:53] Speaker 03: Once there's a non-frivolous objection to the statement of RPI, then the burden has to be on the petitioner to establish that they are the sole and only real party in interest. [00:33:09] Speaker 02: And in this context, so two points again. [00:33:12] Speaker 02: The evidence that was advanced was rejected as raising a sufficient level of concern that this was an issue. [00:33:23] Speaker 02: And two, putting this in context, the idea of a party proving that another party doesn't control something is a difficult challenge. [00:33:40] Speaker 03: Well, that's the party that's got all the information and the evidence. [00:33:43] Speaker 02: But if there is no information, evidence, what do they come forward with? [00:33:46] Speaker 02: It begs the question. [00:33:48] Speaker 04: OK, the time's almost up, but a good news is that we controlled the times. [00:33:54] Speaker 04: We're going to turn to the issue if you have some comments on, you know, we spent most of the time with your friend talking about this issue of estoppel. [00:34:02] Speaker 04: And certainly, he relies heavily on Utah construction. [00:34:05] Speaker 04: So I'd like you to tell us whether you agree with his interpretation of that case or his application. [00:34:12] Speaker 04: And if not, why not? [00:34:13] Speaker 02: Yeah, I would thank you, Your Honor. [00:34:14] Speaker 02: I would respectfully submit that my friend is [00:34:18] Speaker 02: misapprehended the jurisdictional issue in the Utah case. [00:34:25] Speaker 02: The idea of, and I think you touched on this, Your Honor, the idea is whether an agency has jurisdiction to even address a situation, not whether once we get past their ability to review an IPR petition, whether they messed up a jurisdictional issue or not. [00:34:48] Speaker 04: So you think resolving the issue means, in this instance, resolving the threshold issue, which is real party interest? [00:34:56] Speaker 02: Is it appropriate for the board to be addressing real party interest in the context of an IPR petition? [00:35:01] Speaker 02: The answer to that is yes. [00:35:02] Speaker 02: That satisfies this jurisdictional aspect that's being referred to. [00:35:07] Speaker 02: And it's not to be confused with a substantive point of challenge that the board can and does address. [00:35:16] Speaker 02: which World's disagrees with. [00:35:19] Speaker 02: That's an issue for us. [00:35:20] Speaker 04: Something happened in the interim here. [00:35:22] Speaker 04: I mean, this court decided Wi-Fi, which at least arguably changed the landscape in terms of whether or not that question is one that's subject to review at all. [00:35:33] Speaker 04: I mean, it could have been that at some point in the past under Akades, [00:35:37] Speaker 04: no one would have appealed the issue, sought review of the issue, because the position seemed to be that it was not reviewable at all. [00:35:45] Speaker 04: Does that have any play in the context of this case? [00:35:47] Speaker 02: I don't think so. [00:35:49] Speaker 04: Can you remind me when we decided Wi-Fi? [00:35:51] Speaker 01: January 20. [00:35:52] Speaker 02: It was after they filed. [00:35:54] Speaker 01: I'm sorry, January what? [00:35:56] Speaker 02: January 8, 2018. [00:35:58] Speaker 01: OK, so their time for appeal on the three [00:36:05] Speaker 01: IPRs had not yet run, that would have run at the end of January or beginning of February, I think. [00:36:11] Speaker 01: Is that right? [00:36:12] Speaker 02: I'm not sure. [00:36:15] Speaker 02: It was January of this year, right? [00:36:17] Speaker 01: January of this year. [00:36:17] Speaker 02: Yeah, so there are notice of appeals that have long since passed. [00:36:21] Speaker 01: Oh, it's almost by a whole year. [00:36:23] Speaker 02: But that doesn't save them, Your Honor. [00:36:26] Speaker 01: Why doesn't that? [00:36:27] Speaker 01: Because there are six cases. [00:36:29] Speaker 01: That is the only ground that they could not actually have appealed that issue back [00:36:34] Speaker 01: when the appeal time was still available. [00:36:38] Speaker 02: But they did with these three cases. [00:36:41] Speaker 02: They knew they could appeal it. [00:36:43] Speaker 02: So there's six cases sitting there together under the same circumstances. [00:36:47] Speaker 01: But at that time, all they knew was that they could appeal, let's call them the merits issues, not the timeliness issue in these IPRs. [00:37:00] Speaker 01: Turns out they could get all the issues. [00:37:03] Speaker 01: And they didn't care evidently enough about the merits issues of the three other IPRs, but they couldn't independently have appealed the 315B issue. [00:37:19] Speaker 02: That would be a great story, but it doesn't check out under these circumstances. [00:37:23] Speaker 02: All six cases had the same timing. [00:37:25] Speaker 02: They picked three. [00:37:27] Speaker 02: and left three, all at the same time. [00:37:29] Speaker 04: I'm sorry. [00:37:29] Speaker 04: So your answer is just that they were, in this appeal, they obviously were not deterred from raising the real party in interest case, even though they were similarly situated. [00:37:42] Speaker 04: In other words, both appeals were being done before the Wi-Fi. [00:37:47] Speaker 02: Very clearly not, Your Honor. [00:37:48] Speaker 02: I agree with that. [00:37:49] Speaker 02: And even one of the three cases that is being appealed here, Your Honor, [00:37:53] Speaker 02: has no merits challenge. [00:37:55] Speaker 02: They've only appealed the RPI issue. [00:37:57] Speaker 02: So the Wi-Fi decision was in no way a barrier to them. [00:38:04] Speaker 02: And I think that the bar was recognizing that the 315 bar appealability issue was a live issue. [00:38:14] Speaker 01: I asked your friend on the other side a kind of practical judicial efficiency of the system question, which is, [00:38:23] Speaker 01: Troubling, namely, you have a bunch of IPRs involving different patents. [00:38:29] Speaker 01: There's an overlap here. [00:38:31] Speaker 01: They don't care enough about some of them. [00:38:38] Speaker 01: And yet, in order to preserve one common issue in the ones that they do care enough about, [00:38:46] Speaker 01: there, you're going to insist by way of collateral estoppel that they burden us with six IPR appeals instead of three. [00:38:56] Speaker 01: That doesn't seem very, I think the word I used before, like a happy consequence for the system. [00:39:03] Speaker 02: Are we stuck with it? [00:39:06] Speaker 02: I mean, it is a happy consequence in the sense of the other side. [00:39:08] Speaker 03: Well, it may be happy for you. [00:39:11] Speaker 02: Well, it doesn't really, I mean, as far as the efficiency concern, it doesn't [00:39:14] Speaker 02: really take much other than another line in a notice of appeal and a consolidation. [00:39:20] Speaker 02: There's no additional briefing. [00:39:22] Speaker 02: And we see that in this case. [00:39:23] Speaker 02: They've got one unified set of briefing for three cases. [00:39:28] Speaker 02: The only additional component that would be required is a listing of three other case names. [00:39:36] Speaker 02: So there's minimal burden to add three other cases on the exact same issue. [00:39:42] Speaker 02: And then in terms of the other side of the issue preclusion and unhappy consequences, it takes into consideration everybody else that has to suffer from issue preclusion or should be able to rely on issue preclusion. [00:39:58] Speaker 01: If it's essentially cheap on their part to go forward and file six cases instead of three cases with no additional [00:40:12] Speaker 01: briefing, it shouldn't make any significant difference to you on the other side either. [00:40:18] Speaker 02: Not for the briefing. [00:40:20] Speaker 02: I'm talking about the idea of issue preclusion is that the public relies on things that are decided. [00:40:28] Speaker 04: But here it was a peripheral issue. [00:40:32] Speaker 04: To the extent we're going to consider the policies here, it seems like if they didn't care about those other patents, [00:40:40] Speaker 04: then we're saying, well, you had to appeal it, even though you don't care that you lost the patents, but just to preserve in the future, for posterity, a real party and interest question, which you don't care about here. [00:40:54] Speaker 04: You don't care about the patents and the fact that you've lost them. [00:40:57] Speaker 04: Do you understand why that doesn't seem to make a lot of sense? [00:41:04] Speaker 02: I understand how it can appear as a tactical [00:41:09] Speaker 02: failure, if you will, and a technicality. [00:41:13] Speaker 02: I understand that, but on the other side, it doesn't take much more than listing a couple more cases and notice of appeal in a line on the brief. [00:41:32] Speaker 04: The other IPRs aren't even before us, so we're not even clear at what's at stake there or what arguments [00:41:40] Speaker 04: might be relevant to the real party of interest that may or may not be relevant to this case. [00:41:45] Speaker 04: Would it not make sense to take a look at a more fulsome record in order to be able to decide, rightfully, the collateral estoppel question? [00:41:56] Speaker 02: Well, I mean, that raises an issue to the policy point of whether this is a good idea or a bad idea to embrace or reject this type of practice. [00:42:07] Speaker 02: And I could certainly [00:42:09] Speaker 02: envision situations where parties are selecting out cases and perhaps it's resulting in the court not having a fulsome record by virtue of its selection. [00:42:23] Speaker 01: Let me slightly refocus that. [00:42:26] Speaker 01: First of all, would the board be subject to the same issue preclusion doctrine that you're asking us to consider? [00:42:39] Speaker 02: I think that's an excellent point, Your Honor. [00:42:42] Speaker 02: And the answer is, I believe is yes. [00:42:45] Speaker 01: So just focusing on this case for a moment. [00:42:51] Speaker 01: If I look at the contract provision, that is the key, that is the focus of the talk about real party and interest, it is about clearing legal rights to a product. [00:43:04] Speaker 01: Is it not possible that... [00:43:08] Speaker 01: if you look at the claims of the was it nine eight eight or nine nine eight uh... that's the common patent yes nine eighty nine ninety eight and the other two patents so everything that's in the three i p r s that ended uh... without appeal that one could say one might be able to say we don't know uh... this person the chiefs [00:43:33] Speaker 01: they didn't really have control, Activision didn't really have an opportunity to control IPRs on those because there was no product that I guess Bungie was concerned about to which those claims [00:43:50] Speaker 01: that those claims had a bearing on. [00:43:53] Speaker 01: And therefore, Activision's opportunity to control wouldn't apply to those, but it might well apply to these so that, in issue preclusion terms, the issue would not actually be the same. [00:44:05] Speaker 02: Well, it's possible, but this goes to the Folsom record analysis, right? [00:44:10] Speaker 01: Right, which we don't have. [00:44:11] Speaker 01: And so the question is whether [00:44:13] Speaker 01: on the collateral estoppel question, we should send that back for the board to, as you say, apply the same collateral estoppel principles that you're asking us to apply, but to do it with eyes open knowledge about the possible differences between those three IPRs and these three IPRs. [00:44:34] Speaker 01: And maybe the answer will be they're not actually different, but do we really know that? [00:44:42] Speaker 02: I think that's a good question. [00:44:43] Speaker 02: I mean, I think it illustrates some of the problems that result by not simply tagging cases. [00:44:50] Speaker 02: You know, you pose a hypothetical whether there could be some argument in other cases that presents a more fulsome record on point. [00:45:00] Speaker 02: So, following with your hypothetical, if there's some unselected patent where it's very clear [00:45:07] Speaker 02: that it's not a product review situation under that provision of the contract, that would seem to undermine the entire argument that this whole package falls within the product review situation. [00:45:22] Speaker 02: That would undercut that whole argument, that interpretation of the contract. [00:45:26] Speaker 02: And it would underscore the fact that if there's anything in the contract that's on point, it's more toward the indemnification provision [00:45:33] Speaker 02: Which specifically states that this is all Bungie's problem. [00:45:36] Speaker 03: Why did you submit a declaration spelling out the interaction with Activision as it relates to the IPPR or any discussions that you had with Activision relating to the IPR? [00:45:49] Speaker 03: If this was such a pristine thing on your part and Activision had nothing to do with it, why was there no declaration? [00:45:56] Speaker 02: Oh, we felt it was clear from its face. [00:45:58] Speaker 02: I mean, you've got an unrelated litigation with a distributor [00:46:02] Speaker 02: and they're trying to tag Bungie with Estoppel based on an unrelated endeavor. [00:46:09] Speaker 02: We read through the trial practice guide and this seems pretty on point that looking at the practical situation and the fact that there's an example given that in a relationship in an unrelated endeavor does not link two parties up, that application to the contract in our view seemed [00:46:31] Speaker 02: to be persuasive. [00:46:33] Speaker 02: It was deemed persuasive and we didn't think additional evidence was required. [00:46:40] Speaker 02: I do want to make a clarification here, if I may, and that is there was no challenge here to the board's decision to deny discovery. [00:46:51] Speaker 02: The issue that was raised on appeal was whether the board erred in deciding [00:47:00] Speaker 02: the RPI issue, not that the board abused its discretion and denied discovery. [00:47:04] Speaker 04: But they're not only asking for reversal. [00:47:06] Speaker 04: They're asking in the alternative for remand, which suggests that there would be more of that finding or analysis forthcoming. [00:47:15] Speaker 02: Well, that's an issue for remand. [00:47:17] Speaker 02: My point is an issue for this court is not whether the board abused its discretion. [00:47:22] Speaker 02: And some of the questions we've been discussing get to that point. [00:47:25] Speaker 02: Should the board have given more discovery? [00:47:28] Speaker 02: Should we have looked into this more? [00:47:30] Speaker 02: That's not the issue on appeal. [00:47:31] Speaker 03: There's a difference between allowing them discovery and probing your position beyond attorney argument to require you to submit proofs or additional proofs. [00:47:45] Speaker 03: There's a difference between that. [00:47:47] Speaker 02: Whether the evidence is sufficient and I understand the point and I would just emphasize again that there is a piece of evidence and there's attorney argument [00:47:56] Speaker 02: that is limited on both sides. [00:47:59] Speaker 02: We have to bring this to an end. [00:48:00] Speaker 04: I appreciate it, Your Honor. [00:48:02] Speaker 04: Will we store five minutes of rebuttal? [00:48:10] Speaker 00: Perhaps a fairly important clarification to my friend's answer to Judge Soranto regarding whether there has to be a certification in the petition. [00:48:20] Speaker 00: Judge, just so you understand, there is a signature by counsel saying [00:48:23] Speaker 00: who the real parties in interest are. [00:48:25] Speaker 00: However, it's not signed by a client or a person having knowledge. [00:48:29] Speaker 00: For example, it's not like an ITC complaint where you have to have a certification or a discovery response. [00:48:33] Speaker 04: But when people file, I'm not sure the answer to this, but even in our cases where you file a certificate of interest, it's signed by the attorney, but the presumption is that he's gone to his client and checked all of this out, in terms of, right? [00:48:49] Speaker 04: I would hope so, Your Honor, but we simply don't know. [00:48:53] Speaker 04: What about the final point your friend made, which was your failure to appeal the denial of discovery? [00:49:01] Speaker 04: I mean, unless we're in all-in-all reversal mode based on the legal question of what the contract says, are you still saying, even if you don't go there, it's included in our appeal that this should go back for a re-evaluation? [00:49:17] Speaker 00: I think the court does not need to remand, Your Honor. [00:49:21] Speaker 00: I think that you can decide based on the contract that you have. [00:49:24] Speaker 00: and the terms of that there, which say that there is, in fact, an opportunity for Activision to review and approve, or on the flip side of that, deny. [00:49:31] Speaker 04: But what if we are not prepared to go that far? [00:49:34] Speaker 04: Have you preserved your right on repeal to have us do something less than that? [00:49:38] Speaker 00: Yes, Your Honor. [00:49:39] Speaker 00: I think a remand is certainly an alternative solution here that we are asking for. [00:49:44] Speaker 00: I don't know that the Patent Office will necessarily open up the record again. [00:49:48] Speaker 00: They have a policy that they've issued recently about remands and how they're going to handle remands. [00:49:54] Speaker 00: But we think even if you go send it back to the patent office and they decide not to open up the record again, which, as you noted, Bungie pushed back repeatedly through the discovery motion. [00:50:04] Speaker 00: They decided not to submit a declaration establishing the real parties in interest with their reply, which they could have. [00:50:11] Speaker 00: They took the chance that, in fact, in the final written decision, the board would stay put on its path that it had been on and that it wouldn't go back and reconsider in its final written decision who, in fact, the real parties in interest were. [00:50:24] Speaker 00: So, in fact, with that evidence, the board very likely could come back and reach the same conclusion that this court could reach without a remand. [00:50:32] Speaker 00: In other words, based on this agreement, there is, in fact, an opportunity to control. [00:50:35] Speaker 00: Activision is a real party interest. [00:50:38] Speaker 03: Collateral stop is an equitable doctrine, is it not? [00:50:43] Speaker 00: I believe it is, Your Honor. [00:50:44] Speaker 03: Have you found any cases that say that [00:50:47] Speaker 03: In certain circumstances, the court has the discretion not to apply collateral estoppel? [00:50:53] Speaker 00: Your Honor, thank you for bringing that up. [00:50:54] Speaker 00: And this is a point that we did address further down in our reply brief dealing with page 30 and so on and so forth. [00:51:01] Speaker 00: And page 31, we do have a sentence here that this court, in particular the Federal Circuit in 1994, held that redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or particularly in this situation here that we see. [00:51:16] Speaker 00: fairness of procedures followed in prior litigation. [00:51:19] Speaker 00: What we also see as we get into the NLRB case on page 32 and also the Mosher-Steele, now we recognize that there are some different views here, but collateral estoppel is normally not applied to conclusions of law made by administrative agencies. [00:51:33] Speaker 00: And the Patent Office's legal interpretation of that agreement is, in effect, an error of law. [00:51:42] Speaker 00: And the Patent Office's decision to put the burden of proof on the patent owner in effectively disproving that Activision was a real party in interest, rather than the burden of proof on the petitioner to prove that Activision, in fact, was not, also constitutes an error of law. [00:51:58] Speaker 00: And those errors that this Court can correct without any deference to what the Patent Office said, those, in fact, [00:52:03] Speaker 04: But that's a pretty broad brush that's kind of scary to think about if we were to embrace something like that. [00:52:09] Speaker 04: I mean, a lot of what the board does, obviousness cases, those at bottom, even though there are underlying questions of that, are questions of law. [00:52:19] Speaker 04: So that's a kind of difficult thing to grasp. [00:52:24] Speaker 00: If it may offer, Your Honor, this would actually be a great case for this court to take a firm stance on this point, because it's saying, don't rely on the agreement. [00:52:31] Speaker 00: Don't rely on a question of law. [00:52:33] Speaker 00: Bungie, if you want to prove that Activision isn't a real part of an interest, put a declaration in. [00:52:37] Speaker 00: Let that person be cross-examined. [00:52:39] Speaker 00: And if the record shows that, in fact, Activision had no involvement whatsoever, then you have the facts. [00:52:44] Speaker 00: And then the deference applies. [00:52:46] Speaker 00: And so that is an opportunity, in fact, for this court to make a statement, tell petitioners how to deal with this so that they don't have this problem again. [00:52:56] Speaker 00: And one last point here. [00:53:00] Speaker 00: In terms of whether the destiny [00:53:03] Speaker 00: litigation is in fact separate from what's going on here, you can't find that from the agreement. [00:53:08] Speaker 00: You simply cannot look at this agreement and say that based on the terms they wrote back in 2010, Activision has no right to be involved. [00:53:16] Speaker 01: The word product in the provision that's defined at the beginning of the agreement to cover the destiny products? [00:53:22] Speaker 00: Yes. [00:53:24] Speaker 00: And in fact, 15.1, 15.3 of the indemnification provisions [00:53:28] Speaker 00: are very consistent with 7A15J, which say that Activision has an oversight, like a helicopter parent. [00:53:34] Speaker 00: They can watch what Bungie is doing. [00:53:35] Speaker 00: And if at any point Bungie is doing the wrong thing or taking the Friar Art search hasn't been good enough, the claim charts aren't good enough, your analysis on this point isn't good enough, they have the right to tell Bungie, do it again. [00:53:46] Speaker 00: Get it right. [00:53:47] Speaker 00: Your Honor, I see my time is up. [00:53:48] Speaker 00: Thank you. [00:53:49] Speaker 00: We thank both sides and the case is submitted.