[00:00:00] Speaker 04:
The bench looks a little different.

[00:00:02] Speaker 04:
Judge O'Malley is on the panel this morning.

[00:00:04] Speaker 04:
And hopefully, if things work out, is going to be participating in real time.

[00:00:09] Speaker 04:
But in any event, she has access to the tapes, and she will be participating in full in all the cases we hear today.

[00:00:18] Speaker 04:
Miss Keith.

[00:00:24] Speaker 03:
Thank you, Your Honors.

[00:00:25] Speaker 03:
Good morning.

[00:00:26] Speaker 03:
May it please the court?

[00:00:29] Speaker 03:
First, I'd like to just note that for the sake of brevity of our oral arguments, we've actually conferred with Lord of Council.

[00:00:36] Speaker 03:
And we will be submitting on the papers for the 657 and 552 appeals regarding the claim construction issues that we're raising.

[00:00:45] Speaker 04:
Let me just start off by telling you that that's nice and that's helpful.

[00:00:49] Speaker 04:
But frankly, this is about what we need to hear from you.

[00:00:52] Speaker 03:
Absolutely right.

[00:00:53] Speaker 04:
But I will tell you that I don't know if this is good news or bad news, but I think the panel

[00:00:59] Speaker 04:
is prepared to focus, if not exclusively, at least predominantly, not on the merits issues of either the appeal or the cross-appeal, but on the question of Joinder.

[00:01:09] Speaker 04:
Absolutely, Your Honor.

[00:01:10] Speaker 04:
And you noted in your reply brief that that's a predicate issue that we have to deal with.

[00:01:15] Speaker 04:
So I don't want you to be all nervous, like, I've got to get to the merits, whatever.

[00:01:19] Speaker 04:
We may very well never get to the merits arguments.

[00:01:21] Speaker 04:
And your briefing was very fulsome, and we have your briefing to rely on.

[00:01:25] Speaker 04:
So starting with Joinder.

[00:01:27] Speaker 03:
So typically, Your Honor, I wouldn't do that until the rebuttal.

[00:01:29] Speaker 03:
Would you like me to just address it from the very beginning?

[00:01:31] Speaker 04:
Yes, that's what this argument I can't speak exclusively for everybody on the panel.

[00:01:37] Speaker 04:
Perfect.

[00:01:37] Speaker 04:
Okay, so turning to Joinder, I guess my first question is, where's the PTO?

[00:01:42] Speaker 03:
So right now, Your Honor, the PTAB has issued a precedential.

[00:01:46] Speaker 03:
No, I know.

[00:01:46] Speaker 04:
But where are they in this case?

[00:01:48] Speaker 04:
Because maybe I'm wrong.

[00:01:49] Speaker 04:
I don't know that there's anything in writing.

[00:01:51] Speaker 04:
But my historical experience since the AIA passed was they would intervene in two circumstances.

[00:01:59] Speaker 04:
One, if you weren't here, obviously you are.

[00:02:01] Speaker 04:
But two, if there were questions about interpretation of the AIA or those kinds of practices and policies.

[00:02:08] Speaker 04:
So I don't know if you've talked to the PTO.

[00:02:11] Speaker 04:
I just really don't understand why they haven't intervened, because there's a very important question of Joinder here, as you said.

[00:02:19] Speaker 04:
And now that they've got a presidential opinion, they obviously have something different to say, perhaps, than they said in NIDAC.

[00:02:27] Speaker 04:
So, do you have any idea, would your expectation have been that they would have tried to intervene in this case, given the Joinder issue?

[00:02:35] Speaker 03:
Given the, Your Honor, no, I did not believe that they would have intervened in this case, given the Joinder issue, given that they came out with the precedential opinion in propanent.

[00:02:46] Speaker 03:
And I think what, if it were me, I would say that they think that propanent set down

[00:02:52] Speaker 03:
a presidential opinion of an administrative edict, in other words, the Patent Office.

[00:02:59] Speaker 04:
I know, but if you were here, if you were the Patent Office and you were here, we haven't spoken definitively, I don't think necessarily, on whether, in the extent to which we give any deference at all, let alone substantial Chevron deference, which you've called for in your 28-J letter.

[00:03:16] Speaker 04:
Correct.

[00:03:17] Speaker 04:
So wouldn't you think

[00:03:18] Speaker 04:
The Patent Office should and would be here.

[00:03:21] Speaker 04:
I mean, are you making an assumption that we're going to accept that as a Chevron deference?

[00:03:27] Speaker 04:
Do you think they're making that assumption that now that they've spoken in a presidential opinion, end of story?

[00:03:33] Speaker 03:
I am making that assumption that that's what they're thinking.

[00:03:35] Speaker 03:
I don't at all have any inkling as to what your honors are thinking.

[00:03:39] Speaker 03:
We have actually argued that, in fact, you

[00:03:42] Speaker 03:
We believe that the Federal Circuit should give Chevron deference to the propanet decision because it is a precedential opinion.

[00:03:51] Speaker 03:
It's the first that the Patent Office... No, I understand.

[00:03:53] Speaker 04:
And in fact, it's very curious because in your 28J letter, in the final paragraph, you say, quote, the PTO's presidential statutory interpretation of 315C,

[00:04:05] Speaker 04:
provided after notice, public comment, and hearing is entitled to Chevron deference.

[00:04:11] Speaker 04:
So do you think that because amicus briefs were invited in a presidential opinion, that necessarily equates with notice and comment rulemaking?

[00:04:21] Speaker 03:
I don't think they're exactly the same, Your Honor.

[00:04:23] Speaker 03:
Certainly they're not.

[00:04:24] Speaker 03:
They're not a fulsome rulemaking process with everyone being invited.

[00:04:30] Speaker 03:
But they do grant the Patent Office the public's input.

[00:04:34] Speaker 03:
And there were actually six separate amici from individuals as well as corporations and bodies like the AIPLA.

[00:04:43] Speaker 02:
Excuse me, I've read all of that input.

[00:04:46] Speaker 02:
I've read all of those amici briefs.

[00:04:49] Speaker 02:
Yes, Your Honor.

[00:04:50] Speaker 02:
I've gone through that whole thing.

[00:04:51] Speaker 02:
There is absolutely no legal basis for that presidential opinion to be considered compliance with the Administrative Procedure Act.

[00:05:03] Speaker 02:
The Administrative Procedure Act very clearly spells out what needs to be done

[00:05:09] Speaker 02:
For a regulation, first of all, it has to come from the official leadership of the organization.

[00:05:16] Speaker 02:
And you can argue he was involved in this panel.

[00:05:20] Speaker 02:
But secondly, you have to file in the Federal Register.

[00:05:26] Speaker 02:
You have to go through certain steps.

[00:05:28] Speaker 02:
You have to give public notice in a particular kind.

[00:05:32] Speaker 02:
None of that was done.

[00:05:33] Speaker 02:
So let me clarify for your thinking and anybody else who thinks otherwise.

[00:05:38] Speaker 02:
they can do all the presidential opinions they want, and they can advertise in any way they want, and it will never qualify under the Administrative Procedure Act as a proper notice and procedure notice in process under the APA.

[00:05:57] Speaker 02:
So they can't get Chevron deference in any sense.

[00:06:02] Speaker 02:
So you should put that out of your mind and move on from there.

[00:06:07] Speaker 04:
I appreciate it.

[00:06:07] Speaker 04:
Let me just add to that, and we'll all figure it out.

[00:06:11] Speaker 04:
But I just want to ask you, leaving aside the APA issue, isn't it just a matter of, and we've got Kaiser now, and granted Kaiser dealt with our deference and not Chevron deference.

[00:06:23] Speaker 04:
But isn't what we're doing here in terms of construing 315B and C just a matter of deciding which statutory interpretation is the most reasonable rather than a matter of

[00:06:36] Speaker 04:
I mean, Kaiser lists factors when deference is due, and it seems to me those factors are non-existent here.

[00:06:46] Speaker 03:
Well, what I think is appropriate here, Your Honor, I understand your point, but what I think is most appropriate here, Your Honor, is that this statute specifically gives discretion to the commissioner to make these determinations.

[00:06:59] Speaker 03:
And so, as we see- The director.

[00:07:02] Speaker 03:
The director, I apologize.

[00:07:03] Speaker 03:
The director is given the discretion to decide whether or not to allow these joiners, and therefore he's being given discretion to interpret

[00:07:12] Speaker 03:
And as we see in Meade and in the Chevron case itself, when Congress is silent or in fact actually passes the imprimatur on to the administrative agency, that's when Chevron deference actually applies to most.

[00:07:29] Speaker 04:
I understand your point and I take your point, but there's an issue that we have to get to in order to put

[00:07:36] Speaker 04:
He's got deference under the statute, no doubt.

[00:07:40] Speaker 04:
The question is what the extent of the deference is.

[00:07:43] Speaker 04:
And a predicate for that is to construe the statute, because we're talking about whether he has the discretion to join time-barred parties or persons,

[00:07:56] Speaker 04:
versus time-barred claims.

[00:07:58] Speaker 04:
Because that's really the heart of this dispute, right?

[00:08:02] Speaker 04:
I mean, the other side may say the issue is whether or not you can join the same party.

[00:08:07] Speaker 04:
Correct.

[00:08:09] Speaker 04:
My view of it, at least, is whether it's the same party or a different party, the real heart of the issue and the import for what we do here is whether or not that time, otherwise time-barred party who the director may have the discretion to join is allowed to bring in issues that aren't covered by the original petition.

[00:08:29] Speaker 04:
That seems to me to be a very important issue.

[00:08:31] Speaker 04:
We've spoken at a concurrence in NIDAC.

[00:08:33] Speaker 04:
I think click to call kind of reference that.

[00:08:37] Speaker 04:
So I agree there's discretion, but how do you get past the first issue, which is, I think, a more issue for us than the director.

[00:08:46] Speaker 04:
It's a clear statutory interpretation.

[00:08:48] Speaker 04:
Why should we rejoin your parties to be anything more than parties, as opposed to whether you can bring in your issues with that?

[00:08:56] Speaker 03:
And so for that, Your Honor, I think we also have to look to the statute itself.

[00:09:00] Speaker 03:
And the statute itself, if what Your Honor is saying is that it's absolutely limited to only the claims that were in the original petition, nothing more, never, only those claims, slash only those issues, then the rest of the statute wouldn't also require that the issues presented otherwise meet the AIA standard, otherwise would be eligible for the petition.

[00:09:23] Speaker 04:
You say that wouldn't have any meaning?

[00:09:25] Speaker 04:
Of course it would, because it limits who can be a party.

[00:09:28] Speaker 04:
They don't want just Joe and Mary from Lafayette Park to come in and join as parties.

[00:09:35] Speaker 04:
They're putting a limit on who can be joined as a party.

[00:09:39] Speaker 04:
And it can't be somebody, and that's what these limitations are about.

[00:09:43] Speaker 04:
They're talking about, they are limiting who can be joined as a party.

[00:09:47] Speaker 04:
But that doesn't necessarily answer the question about whether the issues raised in those other petitions, if there's otherwise time bar, are necessarily allowed to come in.

[00:09:56] Speaker 04:
Do you understand the point I'm making?

[00:09:57] Speaker 03:
I absolutely understand your honest question.

[00:09:59] Speaker 03:
And unfortunately, I just disagree.

[00:10:00] Speaker 03:
And the reason I disagree is because if you look to, for example, Senator Piles,

[00:10:05] Speaker 03:
statements about the fact that they anticipated that other issues may arise, that there would be other materials presented.

[00:10:14] Speaker 03:
We cite that in our brief.

[00:10:15] Speaker 03:
It's actually discussed at length in the propanet decision as well.

[00:10:19] Speaker 03:
They all point to the section of 315.

[00:10:23] Speaker 03:
that talks about not only can any person, so unfortunately it can be someone from Walnut Creek or Lafayette who actually comes in, any person can actually petition for a joiner, but then the director has to receive the preliminary response and then determine whether that petition warrants institution under 314.

[00:10:44] Speaker 02:
Excuse me, Ms.

[00:10:46] Speaker ?:
Keith.

[00:10:46] Speaker 02:
It does not say any person.

[00:10:48] Speaker 02:
It says any person who properly files a petition under Section 311.

[00:10:55] Speaker 02:
Correct.

[00:10:55] Speaker 02:
In order to properly file a petition under Section 311, you have to meet a whole bunch of requirements.

[00:11:03] Speaker 02:
Yes.

[00:11:03] Speaker 02:
Including, as you know, not being the patent owner and a variety of other things.

[00:11:11] Speaker 02:
So it's not anybody can walk in.

[00:11:14] Speaker 02:
Let me, if I may, pick up with the point that Chief Judge Prost was working from.

[00:11:23] Speaker 02:
Let's assume, hypothetically,

[00:11:25] Speaker 02:
the worst case for you.

[00:11:29] Speaker 02:
Let's assume hypothetically that the statute means exactly what it says.

[00:11:36] Speaker 02:
And what it says is that

[00:11:40] Speaker 02:
An inter-party review may not be instituted if the petition requesting the proceeding filed more than one year after the date on which the petitioner, et cetera, is served with a complaint alleging infringement of the patent.

[00:11:53] Speaker 02:
And that's a bar that will bar any petition

[00:11:59] Speaker 02:
by the same party after the one year period.

[00:12:03] Speaker 02:
That's what the statute says.

[00:12:05] Speaker 02:
Let's assume we think that's what the statute says.

[00:12:09] Speaker 02:
This is a hypothetical.

[00:12:10] Speaker 02:
I know your position.

[00:12:13] Speaker 02:
I've read all those arguments that appear, and I've even read the argument in the

[00:12:19] Speaker 02:
uh... other cases that have been before the PPR.

[00:12:23] Speaker 02:
So I, we're not going to persuade you, but I'm not sure you're going to persuade us.

[00:12:28] Speaker 02:
So let's proceed with this hypothetical.

[00:12:31] Speaker 02:
The worst case.

[00:12:35] Speaker 02:
Let me go to your factual case.

[00:12:38] Speaker 02:
You tell us, this is what you've told us.

[00:12:40] Speaker 02:
You said the complaint was filed in the Western District of North Carolina in 2015.

[00:12:47] Speaker 02:
Then alleging infringement of four patents.

[00:12:51] Speaker 02:
830 claims in those four patents.

[00:12:53] Speaker 02:
But by the way, I'll give you a chance to quarrel with the facts later.

[00:12:59] Speaker 02:
830 claims not specified.

[00:13:02] Speaker 02:
Then you tried to get a dismissal, but the court never dealt with it.

[00:13:07] Speaker 02:
Eventually, there was a transfer in 2016 to the Northern District of California.

[00:13:14] Speaker 02:
And that court didn't deal with your dismissal motion either, but it did set a management conference for

[00:13:22] Speaker 02:
four months after the one-year bar expired.

[00:13:27] Speaker 02:
Well, there you're looking at that.

[00:13:30] Speaker 02:
And let's assume that you read the statute the way I'm proposing to you at the moment.

[00:13:37] Speaker 02:
We'll read it, which is you have no way of filing a second petition after the statute is run.

[00:13:47] Speaker 02:
And you can't join yourself.

[00:13:52] Speaker 02:
It's grammatically impossible for someone to join themselves unless they happen to be dead.

[00:13:59] Speaker 02:
Now, you're facing a deadline.

[00:14:04] Speaker 02:
And you have no way to file those follow-on petitions.

[00:14:09] Speaker 02:
What would you do?

[00:14:10] Speaker 02:
How would you deal with that problem creatively if you were faced with it?

[00:14:14] Speaker 02:
Help me on that.

[00:14:15] Speaker 02:
That's what's puzzling me is how do we get someone like you out of that dilemma under the worst case reading of the statute?

[00:14:24] Speaker 03:
The problem here, Your Honor, was we were creative.

[00:14:28] Speaker 03:
We actually filed an emergency motion with the district court.

[00:14:31] Speaker 04:
No, you absolutely acted responsibly.

[00:14:35] Speaker 04:
And you also recognized that you had a potential peril here.

[00:14:41] Speaker 04:
Yes, we did.

[00:14:42] Speaker 04:
Without doing that.

[00:14:43] Speaker 02:
Yes.

[00:14:43] Speaker 02:
I'm not quarreling with what you did.

[00:14:46] Speaker 02:
I'm only asking you, what would you have done if you knew in advance, instead of having

[00:14:53] Speaker 02:
the pro-PAC opinion, and all the rest of that.

[00:14:57] Speaker 02:
If you knew in advance you could not file a late petition, what would you have done as that time bar began to get near you?

[00:15:08] Speaker 02:
What would you do?

[00:15:09] Speaker 03:
What we did, Your Honor, is what we did, because we weren't assured.

[00:15:13] Speaker 02:
You asked the court for an expedited hearing.

[00:15:18] Speaker 02:
It never happened.

[00:15:19] Speaker 02:
Correct.

[00:15:19] Speaker 02:
Now what?

[00:15:20] Speaker 03:
then we did unfortunately your honor we did the only thing that was available to us given that it was physically impossible well not I guess it's not impossible it was physically improbable both cost prohibitively and Logistically, and I'm sure what the patent office would have done if I had filed a

[00:15:38] Speaker 03:
Call it 30 petitions to try to accommodate all of the claims that were at issue in the case.

[00:15:44] Speaker 03:
I don't think it's practicable.

[00:15:45] Speaker 03:
Bad facts make bad law.

[00:15:46] Speaker 04:
But let's assume we recognize 830 potential claims in over four patents is the extreme.

[00:15:53] Speaker 04:
Correct, Your Honor.

[00:15:54] Speaker 04:
But I think petitioners face this all the time, right?

[00:15:58] Speaker 04:
I mean, rarely.

[00:15:59] Speaker 04:
do complaints, in the first instance at least, do anything other than have some ambiguity in terms of which actual claims are asserted.

[00:16:09] Speaker 04:
But normally, thank goodness, most of the time we're dealing only with a patent, because no matter how you read the statutory language, it says on a patent.

[00:16:16] Speaker 04:
They can't bring in another patent.

[00:16:18] Speaker 04:
Correct.

[00:16:19] Speaker 04:
So they go ahead, and unless they can get an answer from the district court, they file petitions that are

[00:16:27] Speaker 04:
over-inclusive, possibly.

[00:16:30] Speaker 04:
And that happens normally.

[00:16:31] Speaker 04:
I mean, sometimes people who file complaints until they have discovery, that's why we have lots of amendments to complaints, adding claims, which can always happen after the one-year time.

[00:16:42] Speaker 04:
Absolutely, Your Honor.

[00:16:44] Speaker 04:
the system we're dealing with.

[00:16:46] Speaker 04:
I mean, I respect that.

[00:16:48] Speaker 04:
I think I don't want to read into it, but I'm assuming Director Yanko and the rest of the people on this pop thing recognized that there should be what he calls a very limited exception for that circumstance.

[00:17:02] Speaker 04:
But if we can't read it into the statute,

[00:17:06] Speaker 04:
then you'll do it.

[00:17:09] Speaker 04:
What I think in the normal circumstance, most petitioners already do.

[00:17:12] Speaker 04:
They're not faced with 830 claims.

[00:17:15] Speaker 04:
They might be faced with 20 claims versus three.

[00:17:19] Speaker 04:
And they go ahead and protect themselves.

[00:17:21] Speaker 02:
That's what lawyers do.

[00:17:23] Speaker 02:
What would preclude you from within that one year period?

[00:17:27] Speaker 02:
Here's what you did.

[00:17:28] Speaker 02:
You filed a motion to expedite.

[00:17:30] Speaker 02:
It was denied.

[00:17:31] Speaker 02:
You then petitioned within the one-year period what you guessed were the relevant claims that you thought were representative of the 245 and 657 patents, right?

[00:17:44] Speaker 03:
Correct, Your Honor.

[00:17:45] Speaker 02:
And the clock kept ticking.

[00:17:48] Speaker 03:
Understood, Your Honor.

[00:17:49] Speaker 02:
Now, if you were sitting there today and you knew that clock was going to cut you off, what would you next do?

[00:17:59] Speaker 03:
I'm not sure, honestly, Your Honor, that there was anything else I could have done.

[00:18:02] Speaker 03:
The only two options are file on 830 claims or make an election.

[00:18:08] Speaker 02:
Why can't you do that?

[00:18:10] Speaker 02:
Why can't you file on 830 claims by a petition?

[00:18:13] Speaker 02:
I'm just asking.

[00:18:14] Speaker 02:
Why can't you file a petition and just list

[00:18:17] Speaker 02:
the numbers of all those claims, which is all you need to do to get the petition in by the deadline.

[00:18:26] Speaker 02:
I'm just asking because I want to understand.

[00:18:28] Speaker 02:
In your papers you said, well, that's not fair to the PTO.

[00:18:32] Speaker 02:
That's not your problem.

[00:18:33] Speaker 02:
You're not the PTO.

[00:18:35] Speaker 02:
How do you protect yourself under these circumstances?

[00:18:39] Speaker 03:
If this court were to find that simply listing the other claims was enough, we would do that.

[00:18:47] Speaker 03:
But the Patent Office has rejected all petitions that don't give full evidence to every claim that's in the petition.

[00:18:58] Speaker 03:
It's not good enough to say, here's Exemplary Claim 1,

[00:19:01] Speaker 03:
And I want you to attach all of that same analysis to everything else.

[00:19:05] Speaker 03:
There are page limits and costs.

[00:19:07] Speaker 03:
Each petition costs at least $30,000 just to file.

[00:19:12] Speaker 03:
And if you can only get within the 40 to 50 page limit, it's a word limit, not a page limit, you can't possibly even print out what the claims are.

[00:19:23] Speaker 03:
Well, you can file multiple petitions.

[00:19:24] Speaker 03:
You can, Your Honor.

[00:19:25] Speaker 03:
But if you can imagine, I think at this point when we calculated it, it would have been something on the order of 30 petitions in order to accommodate everything.

[00:19:35] Speaker 04:
Firstly, this is obviously the extreme case.

[00:19:38] Speaker 04:
Completely.

[00:19:40] Speaker 04:
And one would hope that even though policy, if it was just policy, it would dictate probably a win for you.

[00:19:47] Speaker 04:
But on the other hand, policy would dictate that the patent owner has some skin in the game here, too.

[00:19:54] Speaker 04:
It can't possibly be to their advantage if they're only planning to assert a dozen claims at the end of the day in their complaint.

[00:20:02] Speaker 04:
It can't be to their advantage, and they're against Facebook, they're not against some little guy, so you have the wherewithal, the bandwidth, presumably, to force their hand.

[00:20:12] Speaker 04:
The patent owner, it's not in his interest to have you file IPRs on all of his patents and all of his claims.

[00:20:20] Speaker 04:
So he's got something, he's got an incentive to try to figure it out sooner rather than later.

[00:20:26] Speaker 04:
Because if it's realistic that you are going to file on all of them, then he is risking unnecessarily all of his claims and particularly under SAS.

[00:20:36] Speaker 04:
where they can make an institution decision and pick up three little planes and we're done.

[00:20:43] Speaker 04:
So he's got a risk.

[00:20:45] Speaker 04:
It's not some patent owner, I got nothing to lose, I'm just going to try to harass the petitioner.

[00:20:50] Speaker 04:
There's something to lose at the other end so that people will be reasonable.

[00:20:54] Speaker 03:
I disagree, Your Honor.

[00:20:55] Speaker 03:
There's nothing to lose for a patent owner.

[00:20:58] Speaker 04:
What a patent owner does is say... All of his claims and all of his patents are now going to be in the IPR process.

[00:21:03] Speaker 03:
Because all he has to do is say, oh, and now I'm not going to assert those in court, and I'm not worried about those anymore.

[00:21:11] Speaker 03:
And meanwhile, he has drugged the defendant to spend hundreds of thousands of dollars.

[00:21:17] Speaker 04:
That's true.

[00:21:17] Speaker 04:
He's not going to assert them in this.

[00:21:19] Speaker 04:
But what he's done is jeopardize his entire portfolio unnecessarily.

[00:21:26] Speaker 04:
And to me, there's possibly a cost to that or a disincentive to just willy-nilly do that if there's no reason.

[00:21:35] Speaker 04:
Obviously, there could be a reason in some circumstances.

[00:21:38] Speaker 04:
Without discovery, he could not really know which of those claims are probative.

[00:21:43] Speaker 04:
And that's fair enough.

[00:21:44] Speaker 03:
But Your Honor, that risk exists the minute they file the lawsuit.

[00:21:47] Speaker 03:
Those claims are all potentially going to be invalidated the minute they file a lawsuit without telling us what claims there are.

[00:21:54] Speaker 03:
It has nothing to do with, oh, and now the disincentive is they could all be invalidated.

[00:21:58] Speaker 03:
That exists whether or not you go to the PTAB.

[00:22:01] Speaker 03:
So there is no disincentive for patent owners.

[00:22:05] Speaker 03:
In fact,

[00:22:06] Speaker 03:
The propanet decision, the director specifically talks about the gamesmanship that is afforded to a patent owner who is able to say, here is my pile of 300, 800, however many claims it is, and I refuse to tell you what it is until after the bar date has passed.

[00:22:23] Speaker 03:
Because I know it's either going to be cost prohibitive to you, it's going to be

[00:22:27] Speaker 03:
man-hours prohibitive to you or something else, so I'll end up with some claims that are free and clear because you can't possibly file on them all.

[00:22:35] Speaker 03:
It puts the entire burden on the defendant who has no way of knowing.

[00:22:39] Speaker 03:
It then puts the entire burden on the patent office, which I know you said is not necessary, it's their problem not mine, but it does still outweigh all of the problems.

[00:22:49] Speaker 03:
They're all on the patent office and the people defending themselves from spurs.

[00:22:54] Speaker 02:
You may have a very good case for a better statute, and I would certainly support that personally.

[00:23:02] Speaker 02:
But yours is remarkably the worst possible case of this fact pattern that anyone could think of.

[00:23:14] Speaker 02:
what was it, 830 claims and two judges who didn't pay attention.

[00:23:22] Speaker 02:
Come back to that point for a minute.

[00:23:25] Speaker 02:
Clearly the problem

[00:23:26] Speaker 02:
that's causing the whole problem is the district judges who failed to require them to produce the information that you kept asking for, and you kept asking for it.

[00:23:39] Speaker 02:
There's no question about that.

[00:23:40] Speaker 02:
Right.

[00:23:40] Speaker 04:
And this is unique though.

[00:23:41] Speaker 04:
I'm not sure the same result would have come if there hadn't been a change invented.

[00:23:44] Speaker 04:
So this is not your fault.

[00:23:48] Speaker 02:
The problem was doubled for the trial judges because no one trial judge ever got a hold of the case.

[00:23:54] Speaker 02:
It kept moving around on them.

[00:23:56] Speaker 02:
Correct, Your Honor.

[00:23:58] Speaker 02:
You couldn't write a script that was worse than this one for challenging the sensibility of this patent, and we recognize that.

[00:24:07] Speaker 02:
And I suppose at some point you might have said to your client, we're screwed, go to the bankruptcy court.

[00:24:17] Speaker 02:
But there's no reason for you to have done that.

[00:24:19] Speaker 02:
There has to be a remedy somewhere in the system, which is what we have to wrestle with.

[00:24:24] Speaker 02:
What is the right remedy for someone caught in this?

[00:24:28] Speaker 02:
Now, part of the problem is this case will probably never come up again in the history of the United States.

[00:24:34] Speaker 02:
You would really have to

[00:24:36] Speaker 02:
Imagine the possibility of, first, the transfer, second, the inordinately large number of claims.

[00:24:46] Speaker 02:
They ought to do something about that.

[00:24:49] Speaker 02:
And then the trial judges dropping the ball, which admittedly happened.

[00:24:54] Speaker 02:
And here you are, and the clock runs against you.

[00:24:57] Speaker 02:
And here we've got this particular statute.

[00:24:59] Speaker 02:
So you couldn't ask for a worse case than the one you happen to have.

[00:25:04] Speaker 02:
The Chief Judge suggests one option for you, which would have been to somehow file any number of petitions, whatever you decide to do, but you've got to get in before the deadline.

[00:25:21] Speaker 02:
And you're pointing out why, practically, that's not a good alternative for you.

[00:25:27] Speaker 02:
I don't know whether going to the patent owner and saying, I'm going to file everything against you and tie you up for the next 50 years unless you contract with me to agree that you're not going to add new claims.

[00:25:44] Speaker 02:
I don't know if that would work.

[00:25:46] Speaker 02:
Who knows?

[00:25:48] Speaker 03:
It would not, Your Honor.

[00:25:49] Speaker 02:
Probably.

[00:25:49] Speaker 02:
In this set of circumstances, probably not.

[00:25:53] Speaker 03:
I've tried it in other circumstances, and it doesn't work.

[00:25:55] Speaker 02:
It doesn't work.

[00:25:56] Speaker 02:
You have tried it.

[00:25:56] Speaker 03:
I have tried it in other circumstances, Your Honor.

[00:25:58] Speaker 02:
That's helpful for us to know.

[00:25:59] Speaker 03:
It does not work.

[00:26:00] Speaker 02:
Pat Nohner says, go for it.

[00:26:03] Speaker 02:
So let's assume hypothetically that the statute doesn't provide a way out.

[00:26:09] Speaker 02:
What do you suggest we do?

[00:26:14] Speaker 03:
The first thing I would do, and I know your honor doesn't agree, but I would urge you to relook at how the director analyzed the difference of the word person between 311 and 315, because I think that's very helpful.

[00:26:25] Speaker 03:
But putting all of that aside and understanding that your honor is asking me, assuming that there is an absolute time bar and no ability to add claims after the time bar.

[00:26:36] Speaker 03:
I would request that the court, at least in its opinion, indicate strongly urging, I know you can't order it per se, but urging district courts to implement claim limitations that no case have more than

[00:26:54] Speaker 03:
X number of claims before the statutory period so that judges know down below how you feel about that type of gamesmanship.

[00:27:03] Speaker 03:
At a minimum, that would help us as defendants when we go in front of judges asking for early claim limitation, asking for courts to at a minimum get infringement contentions

[00:27:15] Speaker 03:
early in the case to what claims are going to be involved so that we can approach the PTAB in a timely manner with only the claims that are at issue.

[00:27:24] Speaker 03:
And I would beg the court to at least do that.

[00:27:26] Speaker 04:
I appreciate your input.

[00:27:30] Speaker 04:
and but let's just back to the statute maybe you can give me some help because the option you didn't you left out was too bad so sad go to Congress and get them to make an amendment I mean I my reading of the statute for whatever it's worth is a

[00:27:47] Speaker 04:
You know, I think I agree with Judge Plager that the language does not get you where you need to go.

[00:27:52] Speaker 04:
But the real, seems to me, the real rub, the cause of the problem is the language that says, with the complaint alleging infringement of the pact.

[00:28:03] Speaker 04:
Because we all know that doesn't mean anything.

[00:28:06] Speaker 04:
Does this patent act refer to infringement of a patent?

[00:28:09] Speaker 04:
You infringe claims and not the patent.

[00:28:12] Speaker 04:
If the language there were a complaint alleging infringement of the claims, you would have an argument that your one-year clock corresponds to the claims that are alleged in the complaint.

[00:28:24] Speaker 04:
And that obviates the problem of amending complaints and all of that.

[00:28:28] Speaker 04:
So if you're going to seek an amendment of the statute, you might want to, and I don't know, maybe it's subject.

[00:28:34] Speaker 04:
Maybe you could make an argument that infringement of the patent can't possibly mean infringement of the patent because that doesn't make any sense.

[00:28:42] Speaker 04:
So it must mean infringement of the claims.

[00:28:45] Speaker 04:
And if it means infringement of the claims and it talks about the complaint alleging infringement of claims,

[00:28:50] Speaker 04:
then your clock only starts running with respect to those claims that are alleged.

[00:28:56] Speaker 04:
Just a thought.

[00:28:57] Speaker 03:
Your honor just made the argument I was going to say about patent versus claim, and you can't in French.

[00:29:01] Speaker 03:
So you did exactly what I was going to do.

[00:29:03] Speaker 04:
Yeah, but the problem is the language.

[00:29:05] Speaker 04:
And Congress knew how to say it.

[00:29:07] Speaker 04:
Because helpful for petitioners, in the estoppel provisions that follow under E, they do refer to claims not infringement of the patent.

[00:29:19] Speaker 04:
They feel to infringement of the claim.

[00:29:20] Speaker 04:
Exactly and your honor that's a bad statutory situation for you because Congress knew how to say claims and they didn't.

[00:29:27] Speaker 03:
But Congress also knew specifically how to release the time bar and it said that the time bar did not apply to proper petitions.

[00:29:36] Speaker 03:
Anything that properly filed.

[00:29:38] Speaker 03:
Where does it say that?

[00:29:40] Speaker 03:
It says in the section on Joinder that says

[00:29:47] Speaker 03:
Yes, exactly, Your Honor.

[00:29:50] Speaker 03:
And so as long as they're proper under 311, they're not time barred.

[00:29:54] Speaker 04:
On this case, your argument, if we're construing the end of B, which is the whole exception, we request for a joiner.

[00:30:02] Speaker 04:
Correct.

[00:30:02] Speaker 04:
So that means a request for a joiner and not

[00:30:06] Speaker 04:
everything, all of the issues in a petition, doesn't get you over our reading of the word party and persons, jointer of party and persons, not jointer of inter-party proceedings.

[00:30:17] Speaker 04:
So you're still, I understand your argument on that, but I still.

[00:30:21] Speaker 02:
And I would still urge, sorry, Your Honor.

[00:30:23] Speaker 02:
One possible solution for some of this, at least, is for the Patent Office to recognize the difference between jointer and

[00:30:35] Speaker 02:
consolidation which are for other matters involving the patent something like an interference or another ex parte can all be consolidated that's different may determine the manner in which the interparties review or other proceeding or matter correct may proceed including

[00:30:54] Speaker 02:
providing for stay, transfer, consolidation, or termination of any such matter or proceeding.

[00:31:01] Speaker 02:
That gives the director very broad power to consolidate.

[00:31:07] Speaker 02:
That would suggest that someone could come in, if they came in within the time bar of course, and file a petition and get the substance of the petition consolidated with the original petition.

[00:31:24] Speaker 02:
But that's not joiner, that's consolidation.

[00:31:28] Speaker 02:
So the director needs to get his act together to make sure that he understands which way you gotta go to get the substantive material across the boundary

[00:31:41] Speaker 02:
And that's not Joinder.

[00:31:43] Speaker 02:
Joinder is Joinder of persons.

[00:31:45] Speaker 03:
But the problem here, Your Honor, is that consolidation doesn't affect, doesn't say, and is not subject to the time bar, whereas Joinder does.

[00:31:52] Speaker 04:
It's not subject to the time bar.

[00:31:54] Speaker 04:
You're absolutely right.

[00:31:55] Speaker 04:
The only way you get the only exclusion is for requests for Joinder.

[00:32:00] Speaker 03:
Correct, Your Honor.

[00:32:01] Speaker 03:
Right.

[00:32:01] Speaker 03:
And so that's why the consolidation doesn't actually have them.

[00:32:05] Speaker 04:
But it still doesn't clarify that you're joining something other than parties.

[00:32:09] Speaker 02:
And I think here, Your Honor, that's why I re- And remember the time bar doesn't bar consolidation.

[00:32:16] Speaker 02:
Correct, Your Honor.

[00:32:17] Speaker 02:
And it doesn't bar joiner.

[00:32:19] Speaker 02:
That can be done 10 years later if they want to.

[00:32:22] Speaker 02:
It only bars the filing of the petition that is the basis to be consolidated or joined.

[00:32:31] Speaker 03:
So the joiner has to happen within a month.

[00:32:34] Speaker 03:
If your honor is asking the question that the petition has to be filed within a month, that is the only way you can get a joiner.

[00:32:40] Speaker 03:
You can't have a joiner, say, 10 years later.

[00:32:42] Speaker 03:
It's only within that statutory period of 30 days after the institution decision.

[00:32:48] Speaker 03:
That's so that the patent office can say, I've got this issue in front of me.

[00:32:52] Speaker 03:
I'm getting ready to dive in whole hog into the rest of it.

[00:32:57] Speaker 03:
So I want everything in that's going to be in.

[00:33:00] Speaker 03:
But again, I would urge your honors to look at the distinction that is drawn in propanet between person and in 311, which says any person other than the patent owner, and 315, which says any person and does not carve anything out.

[00:33:18] Speaker 03:
If Congress had intended to carve out the petitioner, it could have.

[00:33:23] Speaker 03:
The same way in 311, it says any person can bring an IPR other than the patent owner.

[00:33:29] Speaker 03:
It does not do that in 315.

[00:33:31] Speaker 03:
It doesn't say any person may apply for joiner other than the petitioner.

[00:33:35] Speaker 03:
So I would put those two... No, no, no.

[00:33:36] Speaker 04:
But my problem is even if we agree entirely with you that it can be the same party, as you can tell from our questions, the rub for us is not whether or not you can join the same party.

[00:33:47] Speaker 04:
It's what is joined, whether it's anything beyond the party itself, whether it includes

[00:33:53] Speaker 04:
the claims in the other petitions.

[00:33:56] Speaker 03:
And I would urge Your Honors to again look to Senator Kyle's comments, which, as part of the legislative history, indicates that they assume there's going to be something else.

[00:34:03] Speaker 02:
With all due respect to Senator Kyle, who constantly gets cited to us, his views are not the law.

[00:34:08] Speaker 02:
Understood.

[00:34:09] Speaker 02:
The law is what's written in the statute.

[00:34:11] Speaker 02:
Let's face it, we have to deal with the statute.

[00:34:13] Speaker 03:
I agree.

[00:34:14] Speaker 03:
The only other thing I would add for Your Honors, though, is that there is a way out of this for this case.

[00:34:19] Speaker 03:
And the way out of this for this case is waiver.

[00:34:23] Speaker 03:
This argument was never made below by the patent owner.

[00:34:29] Speaker 03:
This is in our briefing.

[00:34:30] Speaker 03:
The patent owner actually asked for the patent office to exercise its discretion and to deny Joinder under 315.

[00:34:41] Speaker 03:
They acknowledged in that statement that the patent office had discretion.

[00:34:47] Speaker 03:
Only here on appeal for the first time do they argue that the Patent Office did not have discretion.

[00:34:55] Speaker 03:
Your Honours could find that they waived the argument of whether or not the Patent Office could act by not using that argument down below.

[00:35:06] Speaker 02:
That's a very good point, and we will make a point of pursuing that with your colleague there.

[00:35:15] Speaker 02:
Because we'd like to come out with a result.

[00:35:19] Speaker 02:
In this case, that makes sense.

[00:35:21] Speaker 02:
But at the same time, we have to come out with an understanding of the statute that makes sense.

[00:35:26] Speaker 02:
By the way, the statute works beautifully for the MeToo people.

[00:35:32] Speaker 03:
Correct, Your Honor.

[00:35:33] Speaker 02:
That's what it's designed to do, apparently.

[00:35:36] Speaker 02:
I don't know whether Congress went through all these alternative scenarios and figured out, let's deal with the MeToo people and the rest of them got to worry about their own problems, or the district courts will worry about it, or the Court of Appeals will unscramble it when the time comes.

[00:35:53] Speaker 02:
But it's clearly the statute works for MeToo's.

[00:35:56] Speaker 03:
I agree with that, Your Honor.

[00:35:57] Speaker 02:
It doesn't work for people who are gamed the way you people were.

[00:36:03] Speaker 02:
Whether intentionally or not, I'm not going to offer an opinion at the moment.

[00:36:09] Speaker 02:
But you ended up having changes in what claims they were going to pursue against you without an opportunity to file a petition on those claims.

[00:36:22] Speaker 02:
Now, we have to keep in mind

[00:36:25] Speaker 02:
that you can still go before the district court and litigate the validity of all of the claims that are being pursued against you.

[00:36:35] Speaker 02:
You don't have to do it in the PTO.

[00:36:39] Speaker 02:
Correct, John.

[00:36:39] Speaker 02:
It's nice to do it in the PTO, and we're all in favor of the AIA.

[00:36:43] Speaker 02:
At least I shouldn't speak for others.

[00:36:45] Speaker 02:
I'm in favor very much of the AIA's circumstance.

[00:36:49] Speaker 02:
I always wanted the agency to have a way to clean up its act, and that's what we have.

[00:36:55] Speaker 02:
But it may be under some circumstances, it just isn't available.

[00:36:59] Speaker 02:
I don't know.

[00:37:00] Speaker 02:
That's what we're trying to kind of think through.

[00:37:02] Speaker 02:
Is this a case where your only remedy is to litigate the validity of these claims in the district court?

[00:37:11] Speaker 02:
You still can, can't you?

[00:37:14] Speaker 03:
It honestly depends on the outcome here, Your Honor, because of estoppel provisions and what have you.

[00:37:19] Speaker 03:
So if Joinder does not apply, then we can litigate those claims at the district court because estoppel will not apply.

[00:37:26] Speaker 03:
But we will always have the specter of... Can I ask you two more questions?

[00:37:30] Speaker 04:
I know we've held you here for a long time and you've been very helpful and it's appreciated, but two little questions just to save my clerk some time.

[00:37:37] Speaker 03:
Thank you, Your Honor.

[00:37:38] Speaker 04:
You seem to know this stuff off the top of your head.

[00:37:40] Speaker 04:
My big recollection was the Kyle legislative history.

[00:37:44] Speaker 04:
I thought that was what Senator Kyle was arguing.

[00:37:48] Speaker 04:
There ought to be a one year time bar versus a six month time bar to make sure that we can cover it.

[00:37:54] Speaker 04:
So I'm not sure.

[00:37:55] Speaker 04:
Am I right about that or wrong about that?

[00:37:57] Speaker 03:
So Your Honor's right in that that was what the conversation, that's how the conversation started.

[00:38:01] Speaker 03:
That's the early part.

[00:38:03] Speaker 03:
But then by the time it arrives to, and with Joinder, we're talking about adding additional issues.

[00:38:08] Speaker 03:
So he is directly addressing the issue of Joinder, including the possibility of other issues.

[00:38:14] Speaker 04:
But that wasn't only in the context of saying that's why we need to extend it for a year and not for six months.

[00:38:19] Speaker 04:
That's correct, Your Honor.

[00:38:20] Speaker 04:
One other quick question.

[00:38:21] Speaker 04:
Am I right here that at the end of the day, if we would decide that Joinder was not permitted in this circumstance,

[00:38:28] Speaker 04:
Both sides derive a little bit of a benefit because they've got their cross-appeal cases.

[00:38:34] Speaker 04:
So as I try to tabulate all of these millions of claims that are out here, it seems to me that a few of the cases they lost on their cross-appeal, a few of those claims would be saved if they couldn't have been joined.

[00:38:48] Speaker 04:
But I think some of the claims in your appeal was where the board found they were not

[00:38:54] Speaker 04:
I think that you would sort of benefit by, you know, getting rid of the board's decision with respect to those claims.

[00:39:04] Speaker 03:
theoretically, Your Honor, but I would argue that given the way that the case is working out down below, the ones that matter are the 245.

[00:39:11] Speaker 03:
And that's why all of the ink was spilled on the 245 in the briefing.

[00:39:15] Speaker 03:
And that's why we're focusing on that.

[00:39:17] Speaker 04:
And that's what we won't give you a chance to focus on, but we will.

[00:39:20] Speaker 03:
And I understand that, Your Honor.

[00:39:21] Speaker 03:
I absolutely understand that.

[00:39:23] Speaker 03:
And I actually appreciate Your Honor's insights and all of your questions.

[00:39:27] Speaker 03:
I think the only other thing that I would urge is

[00:39:30] Speaker 03:
When I was rereading Meade and the name that I can never remember how to pronounce, it starts with a P that the Federal Circuit actually wrote an opinion on.

[00:39:40] Speaker 03:
It's the, let me get you the title.

[00:39:43] Speaker 03:
When I reread the Pesquera, the Chevron, and the Meade decisions this morning, one of the things that stood out was that all of the judges in all of those panels contemplated the idea that sometimes Congress is silent because it actually wants

[00:39:58] Speaker 03:
the agency to figure out a way to make this work and here we do have the agency figuring out a way to make that work and whether your honors give it chevron deference which i still think it should have or not it still shows that the agency is trying to figure out a way to make an ambiguous statute work for everyone involved including very limited exceptions like the case that we have here let me make one

[00:40:25] Speaker 02:
point clear, at least from my viewpoint, the statute is not ambiguous.

[00:40:31] Speaker 02:
There's nothing ambiguous about this statute.

[00:40:34] Speaker 02:
It requires construction.

[00:40:36] Speaker 02:
We have to say what it means, but there's nothing ambiguous about the statute.

[00:40:41] Speaker 02:
It's straightforward.

[00:40:42] Speaker 02:
It says exactly what it means.

[00:40:45] Speaker 02:
Now, whether that's a good idea or not is a whole other issue.

[00:40:52] Speaker 02:
I think I've gathered from this, from your viewpoint, at least in terms of the outcome, there's a workaround for you, which is the waiver issue.

[00:41:03] Speaker 02:
Correct, Your Honor.

[00:41:04] Speaker 02:
We will take, I at least, well I'm sure Judge Prost's support, we'll take that up.

[00:41:11] Speaker 02:
your colleague.

[00:41:12] Speaker 02:
Another possible workaround, which I'm kind of attracted to, is to construe the term patent in 315B to be a clerical error.

[00:41:27] Speaker 02:
And what they meant to say was claims.

[00:41:30] Speaker 02:
The beauty of that would be it would end the possibility of this kind of litigation ever occurring again.

[00:41:40] Speaker 03:
Your Honor, I would be

[00:41:41] Speaker 03:
happy with that.

[00:41:42] Speaker 02:
But that wouldn't solve your problem because you still came in after the statute bar.

[00:41:49] Speaker 03:
It may not solve the problem here, but it would give me comfort in being able to advise my clients in the future.

[00:41:54] Speaker 02:
Yeah, which is part of what our responsibility.

[00:41:56] Speaker 02:
See, we've got, this case is several layers.

[00:42:00] Speaker 02:
Understood, Your Honor.

[00:42:01] Speaker 02:
It is your problem on the merits, and it is what to do about others whose cases are going to be affected by what we do to that statute.

[00:42:12] Speaker 03:
Correct, your honor.

[00:42:12] Speaker 03:
Thank you for your time.

[00:42:13] Speaker 03:
I thank you, your honor.

[00:42:15] Speaker 04:
And we'll restore a few minutes of rebuttal if we need it.

[00:42:18] Speaker 03:
Okay, your turn.

[00:42:19] Speaker 04:
Thank you.

[00:42:22] Speaker 02:
Good morning.

[00:42:23] Speaker 02:
Good morning, may it please the court.

[00:42:26] Speaker 02:
Your case rests on waiver.

[00:42:28] Speaker 02:
Why don't you go right to it?

[00:42:30] Speaker 01:
Your Honor, I will address waiver.

[00:42:34] Speaker 01:
With regard to waiver, the first thing is that this issue was raised by a concurring judge in the institution decision.

[00:42:44] Speaker 01:
Petitioner seems to be saying that it was waived somehow at the institution phase by failing to make an argument, a preliminary response.

[00:42:52] Speaker 01:
Preliminary responses aren't even required.

[00:42:54] Speaker 01:
So I don't see how there could have been a waiver by not raising it in a preliminary response.

[00:42:59] Speaker 01:
Now, after institution, we appealed to the Federal Circuit.

[00:43:03] Speaker 01:
We filed a mandamus saying this is improper under the reading of the statute.

[00:43:06] Speaker 01:
We attached the opinion, the concurring opinion, of the judges at the Patent Office.

[00:43:10] Speaker 01:
And the Federal Circuit told us, you'll have your chance on appeal.

[00:43:13] Speaker 01:
And so then we took that issue, which was in the record in the case as us having gone to the Federal Circuit mandamusing on this issue as being in the record in this case.

[00:43:22] Speaker 01:
And that's how we arrived here, and that's why we don't think it's waived.

[00:43:25] Speaker 01:
It seems like Petitioner is arguing with it that the argument was waived because of a failure to address it at the preliminary response phase, which I don't see how that could be a waiver since we don't even need to file one.

[00:43:40] Speaker 04:
I don't know if you have anything to add, whether or not you're surprised or not clear on why the PTO isn't here as an intervener, given that we've got not just a statutory provision of the AIA, but an intervening, so to speak, a presidential opinion.

[00:43:58] Speaker 04:
Do you have any insight into that?

[00:44:00] Speaker 01:
Your Honor, I don't know why the Patent Office isn't here or why they even would be here.

[00:44:06] Speaker 04:
Well, because they presumably, I mean, well, your friends left to defending that we ought to give Chevron deference to a presidential opinion of theirs.

[00:44:14] Speaker 04:
I don't think our court has necessarily definitively decided what kind of deference, if any, we give to presidential opinions.

[00:44:21] Speaker 04:
Don't you think that's kind of significant for that?

[00:44:23] Speaker 01:
Your Honor, it may be significant to, from my perspective of representing my client, you know, it has certain significance, whether it has greater significance to the patent community and to the patent office, it may.

[00:44:38] Speaker 04:
There's another element of surprise in this case, in terms of who didn't say what when.

[00:44:43] Speaker 04:
And that is your friend, very promptly after this presidential opinion in March, sends us a 28-J letter saying, OK, now we've got a presidential opinion.

[00:44:54] Speaker 04:
You ought to give Chevron deference, yada da.

[00:44:56] Speaker 04:
Here's what they've decided.

[00:44:58] Speaker 04:
In your briefing initially, you kind of don't

[00:45:03] Speaker 04:
Your argument for all these board decisions that go against you is who cares they're non correct opinions The board has not yet spoken out in a presidential way.

[00:45:13] Speaker 04:
You didn't respond to their 28 J letter.

[00:45:16] Speaker 04:
Why not?

[00:45:18] Speaker 04:
I Mean, do you do you agree with it?

[00:45:21] Speaker 04:
I don't necessarily agree with it your honor, but well don't necessarily Do you agree that we should give Chevron deference to board presidential opinions?

[00:45:29] Speaker 01:
Absolutely not your honor.

[00:45:30] Speaker 04:
Okay, so you disagree with that?

[00:45:32] Speaker 01:
I disagree with it, Your Honor.

[00:45:34] Speaker 04:
OK, why didn't she respond?

[00:45:35] Speaker 04:
I mean, we had a lot of 28 Js, and there's a little abuse of the proceeding with people overdoing it.

[00:45:41] Speaker 04:
But in this case, they say something about a presidential opinion.

[00:45:46] Speaker 04:
The presidential opinion dislodges some of your earlier arguments, because you didn't know they were going to issue a presidential opinion.

[00:45:55] Speaker 04:
Why did you not come and give us some help on what we do with this?

[00:46:00] Speaker 01:
Your Honor, I've

[00:46:02] Speaker 01:
I think it was more towards the first point you had made, which was in terms of submitting things to the court without the authority to do so.

[00:46:10] Speaker 01:
I don't know that we thought we had that opportunity.

[00:46:14] Speaker 04:
If there's an intervening, I mean, this is the quintessential 28-J circumstance, right?

[00:46:20] Speaker 04:
They took advantage of it.

[00:46:22] Speaker 04:
You don't think they're filing a 28-J letter on this presidential opinion was improper, right?

[00:46:28] Speaker 04:
It's exactly the kind of thing that they should do.

[00:46:30] Speaker 01:
Right?

[00:46:31] Speaker 01:
I haven't considered that, but it sounds like the court feels it was.

[00:46:35] Speaker 04:
OK.

[00:46:38] Speaker 04:
So we've got a circumstance, if we construe the language of the statute about infringement of a patent to mean infringement of a patent and not infringement of the claims, where they were stuck, in your view, with filing an IPR

[00:46:55] Speaker 04:
dealing with 830 claims.

[00:46:58] Speaker 04:
How can that be what Congress intended in terms of the system if at the end of the day you're going to be forced to peer down that to a dozen?

[00:47:07] Speaker 01:
Your Honor, I can tell you that there is another layer to this iceberg that isn't even before this Court, which is that when the petitions were filed and when the case was filed, it was filed against Windy City.

[00:47:19] Speaker 01:
It was filed by Windy City against Facebook and against Microsoft.

[00:47:23] Speaker 01:
Microsoft and Facebook, between the two of them, filed 12 IPRs against the patents here.

[00:47:29] Speaker 01:
Microsoft managed to file IPRs against all the claims that it wanted to.

[00:47:34] Speaker 02:
Managed to what?

[00:47:35] Speaker 01:
File IPRs against all the claims that it wanted to.

[00:47:37] Speaker 04:
How do we know?

[00:47:39] Speaker 04:
I don't know about that, but what it wanted to, that has no meaning for me.

[00:47:44] Speaker 04:
If I'm a responsible lawyer for a petitioner and I know my one-year clock is going to run, they were absolutely right.

[00:47:53] Speaker 04:
They're begging the district court, come and tell us what claims are an issue because we don't want to forfeit our right to file an IPR.

[00:48:00] Speaker 04:
Is that not correct?

[00:48:03] Speaker 04:
Were they not at risk without filing an IPR here on 830 claims?

[00:48:10] Speaker 01:
Your Honor, there are two patents that are primarily at issue here.

[00:48:14] Speaker 01:
One is the 245 patent.

[00:48:16] Speaker 01:
The other is the 657 patent.

[00:48:19] Speaker 01:
The 657 patent is the one with many, many claims.

[00:48:22] Speaker 01:
And that one, if you're asking for how someone can address that, Microsoft filed an IPR on the same day that Facebook did, in essentially the same case for the same district court, and used a representative claim.

[00:48:35] Speaker 01:
And they got an institution.

[00:48:37] Speaker 01:
And so that would be a mechanism to accomplish that.

[00:48:39] Speaker 04:
What's the status of that case?

[00:48:41] Speaker 01:
They settled, Your Honor.

[00:48:42] Speaker 01:
They won't.

[00:48:43] Speaker 01:
They settled.

[00:48:44] Speaker 04:
But you file a complaint that says Facebook accuses Facebook of meeting the claims of the patents in suit.

[00:48:53] Speaker 04:
and you don't identify which ones.

[00:48:55] Speaker 04:
If you're representing the defendant in this kind of complaint, do you not feel like you have to preserve your rights, file an IPR involving all of the claims that the patents ensue?

[00:49:08] Speaker 01:
Your Honor, I think they would have to to preserve their rights.

[00:49:12] Speaker 01:
Additionally, with regard to the 245 patent- How can that be right, though?

[00:49:15] Speaker 04:
It's a policy matter, okay?

[00:49:16] Speaker 04:
Maybe we don't do policy, but don't you appreciate and understand why the director and this presidential board felt that there had to be at least a limited exception to the rule?

[00:49:27] Speaker 04:
to prevent that unnecessary use of resources by them, by you, by the Patent Office to get IPRs involving 830 claims when that's ultimately absolutely not necessary?

[00:49:44] Speaker 01:
If we're looking at 830 claims across four patents, which is the case here, the situation would be the same if it were 15 claims per patent, but there were just more patents in the case.

[00:49:55] Speaker 01:
There would still be a deadline.

[00:49:57] Speaker 01:
Facebook and Microsoft would have still had to do the work to get the IPRs filed by the deadline.

[00:50:01] Speaker 01:
And with regard to the 245 patent, which is, as my colleague had expressed, one of the

[00:50:08] Speaker 01:
the patent that everyone was prepared to really address today on the merits, that patent only had 55 claims, and there was no reason why, specifically for one patent with 55 claims, why Facebook couldn't file an IPR with 55 claims.

[00:50:23] Speaker 01:
Many others have done it.

[00:50:24] Speaker 01:
Microsoft filed IPRs against many more than 55 claims in the same case.

[00:50:27] Speaker 04:
Okay, let me give you a hypothetical.

[00:50:28] Speaker 04:
Let's assume you filed this complaint and you identified six claims across the board, or six claims for each patent.

[00:50:35] Speaker 04:
So they go in and they file their IPRs and they're covered.

[00:50:38] Speaker 04:
And then 366 days later, you amend your complaint to add six more claims.

[00:50:47] Speaker 04:
Under your view of the statute, would they be time-barred in filing an IPR over those newly amended, the new claims that were added in on day 366?

[00:50:57] Speaker 02:
That's a yes or no.

[00:51:02] Speaker 01:
Yes, yes, they're time barred.

[00:51:03] Speaker 04:
They're time barred.

[00:51:04] Speaker 04:
How can that be right?

[00:51:06] Speaker 04:
Your Honor, does the statute, you think the statute differentiates?

[00:51:09] Speaker 04:
Like we wanted to give, clearly the statute wanted to give petitioners an alternative rule with the PTO.

[00:51:17] Speaker 04:
So they were saying, okay, but yeah, if somebody amends their claim one year later, that's out, they're out of the ball game.

[00:51:29] Speaker 01:
Your Honor, in,

[00:51:32] Speaker 01:
In those cases, as Your Honor has both expressed, this is a situation that is not the norm in terms of the transfer and then the delay in California.

[00:51:43] Speaker 04:
But people amend complaints all the time.

[00:51:45] Speaker 01:
Yes, Your Honor, but generally not to allege additional claims, because that's done in contentions.

[00:51:50] Speaker 02:
The hypothetical is a hypothetical, and it's designed to focus on a particular problem.

[00:51:57] Speaker 02:
And the question is, is that problem built into this system?

[00:52:01] Speaker 02:
And if that problem is built into the system, could Congress have ever intended the problem to be there with no solution?

[00:52:10] Speaker 02:
It doesn't make any sense because it was clear what Congress wants to do is to permit a defendant who's claimed against in a lawsuit to be able to go to the PTAB

[00:52:25] Speaker 02:
and get what they consider to be quicker and better results than they do by litigating it in the district courts on the validity question and the prior art stuff and all the rest of that.

[00:52:39] Speaker 02:
And all of a sudden there's this one set of situations where the patent owner can make

[00:52:48] Speaker 02:
change in the claims after the one-year statute is run.

[00:52:53] Speaker 02:
It's just the way it works out.

[00:52:55] Speaker 02:
And your answer is too bad.

[00:52:57] Speaker 02:
You lose the AIA.

[00:53:01] Speaker 02:
Now, the question is, first of all, does that make any sense?

[00:53:05] Speaker 02:
But more importantly, is that what the statute requires?

[00:53:09] Speaker 01:
that the statute explicitly requires for a patent filing an IPR against a claim of a patent infringement against a patent.

[00:53:17] Speaker 04:
No, it says the complaint.

[00:53:18] Speaker 04:
Sorry.

[00:53:19] Speaker 04:
What does it mean, a complaint alleging infringement of the patent?

[00:53:23] Speaker 04:
How do you infringe a patent?

[00:53:26] Speaker 01:
Your Honor, there's no requirement in district court that you allege all of the claims that you're going to pursue in that court in your complaint.

[00:53:33] Speaker 01:
Usually courts, California,

[00:53:36] Speaker 01:
Other courts have contention processes whereby you name the claims you're going to pursue in that case at a certain point.

[00:53:43] Speaker 01:
And so there's nothing.

[00:53:45] Speaker 04:
But you talk about, I mean, I don't know.

[00:53:48] Speaker 04:
Maybe you're right.

[00:53:48] Speaker 04:
But it seems to me even in this case, you just listed the patents.

[00:53:53] Speaker 04:
You didn't identify any claims.

[00:53:55] Speaker 04:
But you certainly said, meet the claims of the patent in suit.

[00:54:00] Speaker 04:
You didn't say, infringe the patents.

[00:54:04] Speaker 01:
Your Honor, I think at that point, that might be some kind of Iqbal Twombly issue about pleading, how you have to construct your pleading.

[00:54:14] Speaker 01:
But my understanding is that you allege infringement of claims of a patent.

[00:54:19] Speaker 04:
That's exactly right.

[00:54:20] Speaker 04:
No, I agree.

[00:54:20] Speaker 04:
So we all agree you allege infringement of claims of the patent.

[00:54:26] Speaker 04:
Can you allege infringement of the patent?

[00:54:29] Speaker 04:
Is there such a thing?

[00:54:30] Speaker 01:
Yes, Your Honor.

[00:54:30] Speaker 01:
That's why it's called patent infringement and not patent claim infringement.

[00:54:33] Speaker 01:
The action itself.

[00:54:36] Speaker 04:
And let me ask you, in the amendments, so even if you were to allege, hypothetically, if there's a complaint and they say, we've alleged claims one, two, and three, if your client is a potential petitioner, a defendant, you're going to have to tell your client, you better go file an IPR not just on the claims of the patent that's been alleged, but on all of the claims of the patent that's been alleged.

[00:55:03] Speaker 04:
because they will have free rein to file amendments after the one year passes, right?

[00:55:10] Speaker 01:
That's correct, Your Honor, and that's what I've advised my clients.

[00:55:12] Speaker 04:
And that's what, in your experience, that's what petitioners are doing now?

[00:55:17] Speaker 04:
They're filing IPRs on all of the claims of a patent, even if only certain claims have been identified?

[00:55:22] Speaker 01:
That's right, and that's what Microsoft did in this exact case.

[00:55:25] Speaker 02:
Isn't there a general rule, and I didn't think to run this down, but I thought there was a general pleading rule that requires that pleadings be specific about the cause of action.

[00:55:42] Speaker 01:
That's correct, Your Honor.

[00:55:44] Speaker 02:
And your cause of action was breach of certain claims, but you never were infringement of certain claims.

[00:55:52] Speaker 02:
But you never said what those claims were.

[00:55:56] Speaker 02:
That is an issue for the district court and not for the... Wasn't your pleading subject to summary dismissal?

[00:56:05] Speaker 01:
Your Honor, I don't know.

[00:56:06] Speaker 01:
I have to...

[00:56:07] Speaker 01:
admit that I'm not the counsel in the district court in this case.

[00:56:10] Speaker 01:
So I don't know the full history of that.

[00:56:13] Speaker 01:
But I would imagine that in a case, if we're talking hypothetically, that those concerns are addressed at the dismissal stage by filing a motion to dismiss under Rule 12, alleging that the complaint fails to state a claim under Iqbal or Twombly.

[00:56:27] Speaker 02:
Right, that's a better disposition.

[00:56:31] Speaker 02:
You heard me recite what I understood from sorting through all these briefs what seems to be the history of this case.

[00:56:40] Speaker 02:
You don't disagree with that history as I recited it, do you?

[00:56:44] Speaker 01:
As you have recited it, I did not hear any inaccuracies, but I would defer to the record.

[00:56:49] Speaker 04:
Can I, just since you didn't respond to the 28-J, can you give us your view of the law in terms of what deference, if any, is owed to the Patent Office in light of a presidential opinion?

[00:57:02] Speaker 01:
Your Honor, it's our position that it's the Chevron analysis, you know, in terms of whether it should be given Chevron deference, as Your Honors had stated earlier today,

[00:57:16] Speaker 01:
That is only given when the statute has some ambiguity.

[00:57:19] Speaker 01:
And our reading of the statute, we don't see anything other than the plain reading of the statute.

[00:57:24] Speaker 01:
And as Your Honors had said, it may need to be construed.

[00:57:27] Speaker 01:
But there's nothing ambiguous about the statute.

[00:57:28] Speaker 01:
And statutory interpretation, that's something well within the purview of this court.

[00:57:33] Speaker 01:
And the Patent Office can't rewrite a statute, even if it designates the opinion as precedential.

[00:57:39] Speaker 01:
The statute's the statute.

[00:57:40] Speaker 01:
Perhaps someone needs to take that up with Congress.

[00:57:42] Speaker 01:
I would say one thing about a mechanism if this issue were not to be reached in this case, which is that we've only raised this issue as a cross-appeal issue, and specifically with regard to the 2-4-5 patent in the alternative.

[00:57:58] Speaker 01:
Our position is still that the merits of the petition in that case were correct.

[00:58:02] Speaker 01:
The Patent Office came to the correct decision.

[00:58:04] Speaker 01:
The claims are not unpatentable.

[00:58:05] Speaker 01:
That was a final written decision.

[00:58:07] Speaker 01:
And that this issue need not even be reached.

[00:58:09] Speaker 01:
But if it were to be reached because of some issue with regard to the Patent Office's analysis of invalidity, then we would get to this issue.

[00:58:19] Speaker 02:
You went a little fast there.

[00:58:22] Speaker 02:
Let me be sure I follow you.

[00:58:25] Speaker 02:
If we hold the worst case, which I started with Ms.

[00:58:30] Speaker 02:
Keith about, that the follow-on petitions

[00:58:35] Speaker 02:
by Facebook coming after the statutory period had run in 2016.

[00:58:42] Speaker 02:
If we hold that all those follow-on petitions were invalid, your win under those follow-on petitions would be wiped out as well as your losses, wouldn't they?

[00:59:00] Speaker 02:
You can't have it both ways.

[00:59:02] Speaker 01:
I don't think we presently have a loss under that.

[00:59:05] Speaker 01:
So it would only be a loss if this court were to reverse the PTAB.

[00:59:08] Speaker 01:
So we're in a winning disposition there, which is why we didn't appeal.

[00:59:13] Speaker 04:
I think I understand what you're saying, but I have a different kind of a question with that, is that, as I mentioned to Ms.

[00:59:19] Speaker 04:
Keefe, some of the claims that they lost on that is subject to their appeal were the new stuff that came in under Joinder.

[00:59:28] Speaker 04:
Some of your claims

[00:59:30] Speaker 04:
in your cross-appeal was the new stuff.

[00:59:33] Speaker 04:
So I understand you're saying if you won and we reversed the board on all of your cross-appeal stuff, including the new stuff, that's helped the Joinder issue.

[00:59:43] Speaker 04:
Is that what you were saying?

[00:59:44] Speaker 01:
What I was saying, Your Honor, with regard to the 2-4, I just want to talk about the 2-4-5 patent, the remainder of the patents we were willing to submit on the briefing.

[00:59:52] Speaker 01:
For the 2-4-5 patent, which is the only one currently alive in district court right now,

[00:59:55] Speaker 01:
All the other patents have been, you know, not elected to go forward to trial.

[01:00:00] Speaker 01:
So with regard to the 245 patent, patent owner has won all of the claims at issue there.

[01:00:06] Speaker 01:
The patent office found that every claim petitioned was not obvious, non-obviousness for all of those claims.

[01:00:14] Speaker 01:
We won both the claims in the original petition as well as the follow-on petition.

[01:00:19] Speaker 01:
Facebook has appealed that decision and argues that the Patent Office got it wrong, which we disagree with.

[01:00:25] Speaker 01:
We only mentioned the statutory issue of, could we even be here, should we even be here at all, in response to their argument that they should, that your honor should find the patent to be obvious.

[01:00:40] Speaker 01:
And so our argument is only, so they're here asking this court to overturn the Patent Office finding of non-obviousness, to find the patent is obvious.

[01:00:47] Speaker 01:
And so our response to that is,

[01:00:50] Speaker 01:
If we have to reach that issue, and you're not going to just agree with the Patent Office's obviousness decisions, we have to go into all the merits of, should we even have been here to begin with, which raises the statutory question.

[01:01:01] Speaker 04:
I think I know what you're saying, but I think you're wrong.

[01:01:04] Speaker 04:
Because we looked at this initially because we thought there was a waiver issue.

[01:01:07] Speaker 04:
Because somewhere in your patent, you talk about, in your summary of argument, you use it as an alternative with respect to Facebook, which seems to be what you're saying here.

[01:01:18] Speaker 04:
That it's their appeal that you think.

[01:01:22] Speaker 04:
But then in the argument section, you cite, actually, the IPRs and everything, and it includes the ones in your cross appeal.

[01:01:33] Speaker 04:
So I think all of those issues are joined, so to speak.

[01:01:40] Speaker 04:
And that if we are going to deal with Joinder here, it affects everybody across the board.

[01:01:44] Speaker 04:
Am I wrong about that?

[01:01:46] Speaker 04:
I understand what you're saying, but that's what you said in your summary of argument.

[01:01:49] Speaker 04:
And I thought, oh, good, we are limited in what we have to look at here.

[01:01:53] Speaker 04:
But then when I read your argument, and I'm trying to be fair to you because it's your brief and what's covered,

[01:01:58] Speaker 04:
I read it as being broader.

[01:01:59] Speaker 04:
It's page 39 of your red read.

[01:02:01] Speaker 01:
Your Honor, I believe you are correct with regard to the 657 patent, because Facebook had done this in two patents, in the 657 patent and the 245 patent.

[01:02:10] Speaker 01:
I was only speaking with regard to the 245 patent, which is the one that we were arguing about today and that Facebook had said they were going to submit on the papers for the remainder of the arguments for the other patent.

[01:02:19] Speaker 04:
Yeah, but just because you're doing it on the papers, the issues are still before us.

[01:02:22] Speaker 04:
It doesn't matter to me whether you're, there's no difference whether you argue it or submit it on the papers.

[01:02:27] Speaker 04:
It's still an issue before us.

[01:02:28] Speaker 04:
It doesn't take it off the table, right?

[01:02:31] Speaker 01:
I think that's correct, Your Honor.

[01:02:35] Speaker 02:
Well, the point I was trying to make and trying to find out if you agree with it is if we hold that any of the claims

[01:02:44] Speaker 02:
identified in the petitions filed after the one year ran.

[01:02:52] Speaker 02:
If we hold that all of those claims were not before the PTO, so there's no decision from the PTO in your favor on those claims, you lose.

[01:03:08] Speaker 01:
Not exactly, Your Honor.

[01:03:10] Speaker 01:
We still have claims that we prevailed on.

[01:03:14] Speaker 04:
It covers only a niche of the cross-appeal.

[01:03:17] Speaker 01:
It only covers a niche of that appeal, which are some of the claims, I think it was 1923, in that range of the patent.

[01:03:25] Speaker 01:
But the argument that the Patent Office made, and that obviousness combination,

[01:03:30] Speaker 01:
still applies to all the claims across the patent so if the patent office's decision is upheld and the claims are found to be non-obvious that should apply to all the arguments for all the claims across all the patents and so you know this issue of it's it's it's unfortunate as your honor had said in terms of that this is this is where this issue of statutory interpretation which seems to be of great import is uh is being litigated uh but

[01:03:54] Speaker 01:
That would not be a loss for Windy City if it were to be overturned in that way on the statute.

[01:04:00] Speaker 04:
One final question, and thank you very much, you've been very helpful, is do you think that the court, given, let's assume at the extreme, that we feel

[01:04:10] Speaker 04:
that it's proper and appropriate for us to reach all of these issues, deference to a presidential opinion, all of the statutory constructions with regard to Joinder.

[01:04:19] Speaker 04:
Would we not benefit from asking the PTO for its views on these matters, even though it's neglected to intervene on its own accord?

[01:04:28] Speaker 04:
Do you have a reaction to that?

[01:04:32] Speaker 01:
Your Honor, my reaction is that

[01:04:37] Speaker 01:
As a patent lawyer, perhaps.

[01:04:40] Speaker 01:
But from my client's perspective, I don't know that it is really of any great import to my client, whether or not the Patent Office weighs in on this issue.

[01:04:47] Speaker 01:
But perhaps as a patent lawyer, it makes some sense.

[01:04:52] Speaker 04:
I appreciate that very much.

[01:04:54] Speaker 04:
Thank you.

[01:05:02] Speaker 04:
So do you just want to comment on that last question?

[01:05:05] Speaker 03:
Sure.

[01:05:06] Speaker 03:
I would be happy to have the Patent Office weigh in here.

[01:05:09] Speaker 03:
I think it would be helpful for everyone so that you have a more fulsome record.

[01:05:13] Speaker 03:
But I think, Your Honor, still can find that this may not be the right case for that because you can rely on the waiver argument.

[01:05:19] Speaker 03:
The waiver, I'm not, I wasn't asking them to waive or not waive at the time of the POPR.

[01:05:26] Speaker 03:
The argument I'm talking about is the argument that they made in their opposition to our motion for Joinder.

[01:05:34] Speaker 03:
On appendix at page 7372 and appendix at 8148, patent owner acknowledges that in its opinion, the board has discretion to deny the motion for Joinder on our petition.

[01:05:56] Speaker 03:
They then received a ruling contrary because the board said, yes, it is in fact joined.

[01:06:01] Speaker 03:
They didn't ask for rehearing.

[01:06:03] Speaker 03:
They never raised the issue below ever as to whether or not the Patent Office had discretion.

[01:06:10] Speaker 03:
The first time that issue was raised was in this appeal on the cross appeal.

[01:06:16] Speaker 03:
And so an issue not raised below is deemed waived.

[01:06:20] Speaker 03:
There's nothing in there.

[01:06:21] Speaker 04:
Can I just ask you for the citation in your blue brief where you preserve the waiver?

[01:06:26] Speaker 04:
Where was that in your brief?

[01:06:28] Speaker 03:
It wasn't in our blue brief because the issue of Joinder wasn't raised until the cross appeal.

[01:06:36] Speaker 03:
Fair enough.

[01:06:38] Speaker 03:
It wasn't raised until in the yellow brief.

[01:06:40] Speaker 03:
It is in our yellow brief.

[01:06:42] Speaker 03:
And it's in our yellow brief.

[01:06:43] Speaker 04:
Yes, page 24, I get it.

[01:06:45] Speaker 03:
Correct, Your Honor.

[01:06:46] Speaker 03:
Exactly right.

[01:06:47] Speaker 04:
And then did they respond to that in gray?

[01:06:50] Speaker 04:
I'm sorry, there's so many issues in this case that I lost track.

[01:06:53] Speaker 04:
I don't know if they did respond.

[01:06:54] Speaker 04:
Not that I had seen, Your Honor.

[01:06:57] Speaker 04:
Yeah, they do have it on page two.

[01:07:00] Speaker 02:
OK, we'll take it.

[01:07:01] Speaker 02:
Let me ask you, related to the question of getting the patent office views, which I think I agree with the chief.

[01:07:11] Speaker 02:
I think we might benefit from doing that.

[01:07:14] Speaker 02:
If we do that, do we need to then give you two an opportunity to respond, or are you comfortable with our just getting their views for the record?

[01:07:26] Speaker 03:
I always welcome an opportunity to help your honors and respond.

[01:07:29] Speaker 03:
But if your honors found that there was plenty of paper and you'd already heard enough from me, I would be fine with submitting on whatever the panel said.

[01:07:35] Speaker 04:
Yeah, that's tricky, though.

[01:07:36] Speaker 04:
I don't know.

[01:07:37] Speaker 04:
I don't know if the panel decides to go that route.

[01:07:40] Speaker 04:
Because in the normal course, if the board had intervened, obviously parties

[01:07:46] Speaker 04:
And obviously you think the board's going to be on your side, so it's more hishtick than yours as to whether or not you'd want to respond.

[01:07:54] Speaker 04:
But it seems like regular order when the PTO is making an intervention or is intervening is that the parties get to react to that.

[01:08:02] Speaker 03:
And that was my only point, because obviously, I think they're going to be consistent with propanent.

[01:08:06] Speaker 03:
But I wouldn't want to waive all rights to comment if, all of a sudden, he came in and said something contrary.

[01:08:11] Speaker 02:
Your offer to help us was certainly appreciated.

[01:08:14] Speaker 03:
I appreciate that, Your Honor.

[01:08:16] Speaker 03:
We really appreciate your time, Your Honors.

[01:08:17] Speaker 03:
This is difficult.

[01:08:18] Speaker 04:
Well, thank you both very much.

[01:08:19] Speaker 04:
And I realize this may not have gone the way you expected.

[01:08:21] Speaker 04:
But one, trust that you had very extensive briefing on all of the merits issues.

[01:08:27] Speaker 04:
And all of your arguments will be considered.

[01:08:29] Speaker 04:
So don't feel like you forfeited anything by the argument today.

[01:08:32] Speaker 04:
both a very helpful thing.

[01:08:33] Speaker 03:
We appreciate it, Your Honors.

[01:08:34] Speaker 03:
Thank you very much.

[01:08:35] Speaker 02:
We may yet decide the merits at some time in the future.

[01:08:38] Speaker 03:
And we would appreciate that, too, Your Honor.

[01:08:39] Speaker 03:
All right.

[01:08:40] Speaker 03:
The case is submitted.