[00:00:49] Speaker 05: Our final case this morning is number 19-11-71, Game and Technology Company Limited versus Wargaming Group Limited. [00:01:10] Speaker 06: Good, Mr. Zito. [00:01:11] Speaker 06: More yards. [00:01:14] Speaker 06: Two issues in this case are the untimeliness of the IPR. [00:01:21] Speaker 06: The issues in this case are the untimeliness of the filing of the IPR beyond the one-year statutory bar and whether or not the decision on claim construction in the IPR was valid and or was it correct. [00:01:37] Speaker 07: The first issue is whether, I thought your first issue was whether rule four of the federal rules applies to the PCAP. [00:01:50] Speaker 06: Is that part of your first issue? [00:01:52] Speaker 06: Whether rule four, you know, service by waiver? [00:01:56] Speaker 06: Yeah. [00:01:59] Speaker 06: In this instance, we served... Federal rule of civil procedure 4. [00:02:03] Speaker 06: 4D, correct. [00:02:04] Speaker 06: Yeah. [00:02:05] Speaker 06: Right. [00:02:05] Speaker 06: We served... Does it apply to the PTAB? [00:02:09] Speaker 06: It has to. [00:02:10] Speaker 06: It's a rule for the... The PTAB relies upon whether or not the district court service was effective. [00:02:17] Speaker 06: It's not a service at the PTAB. [00:02:19] Speaker 06: It's a service in the district court. [00:02:21] Speaker 06: So the PTAB has to honor rule 4. [00:02:26] Speaker 06: We served in two manners under 4D waiver of service, and we also served under the Hague Convention, the defendant in England. [00:02:37] Speaker 05: But under the waiver argument, the rule four is pretty clear that you have to file a waiver for the court. [00:02:47] Speaker 05: And the advisory committee note makes clear that the purpose of that is to fix [00:02:53] Speaker 05: for the running of the statute of limitations, similar to the kind of issue that we have here. [00:02:59] Speaker 05: And so, for purposes of statute of limitations, Rule 4D is saying it's not served until the waiver is filed with the court, right? [00:03:10] Speaker 06: Yes, Your Honor, but we're not relying just on Rule 4D. [00:03:14] Speaker 06: We're relying upon the service that was affected and that's so you're giving up on the 4d are you? [00:03:19] Speaker 06: No, we believe they were we believe they were effectively served under 4d. [00:03:23] Speaker 05: Oh, let's stick with that for a moment I just described to you what 4d says correct and the waiver was not filed for [00:03:33] Speaker 05: with the court in such a way that the one-year period hit rock, right? [00:03:37] Speaker 06: Right. [00:03:38] Speaker 06: Nor was a sign ever returned to us. [00:03:41] Speaker 02: Did you send one and ask for a waiver? [00:03:45] Speaker 02: Did you initiate the process of asking for a formal waiver? [00:03:50] Speaker 02: No, because... I understand you just have an email. [00:03:54] Speaker 02: We have an email. [00:03:56] Speaker 02: So you're saying that is different than the procedure set out in Rule 4D, that that is just an informal waiver. [00:04:06] Speaker 07: Do I understand? [00:04:06] Speaker 07: That's correct. [00:04:07] Speaker 07: This is an informal waiver. [00:04:09] Speaker 07: Are you saying that that's effective in this case? [00:04:12] Speaker 07: No. [00:04:12] Speaker 07: No. [00:04:13] Speaker 07: Okay. [00:04:13] Speaker 07: We're saying... Let's try to keep ourselves... I'm slow. [00:04:17] Speaker 07: You need to help me. [00:04:19] Speaker 07: You say there's no waiver under 4D that you're pushing for. [00:04:25] Speaker 06: There's a waiver under 4D, but there was never a signed waiver filed with the court. [00:04:31] Speaker 06: That's what we're saying. [00:04:32] Speaker 05: So the service didn't occur until a signed waiver was filed with the court, and there never was one. [00:04:40] Speaker 07: So you have no waiver in effect under 4D. [00:04:46] Speaker 07: Do you agree to that? [00:04:47] Speaker 06: That's correct, yes. [00:04:49] Speaker 06: If filing with the court of a signed return waiver is part of Rule 4D, that is correct, yes. [00:04:55] Speaker 06: You have no waiver under 4D. [00:04:57] Speaker 07: Do you have delivery under 4D in any form? [00:05:03] Speaker 07: Do you have delivery of the summons? [00:05:07] Speaker 07: Was the summons served under 4D in any manner that you want to push? [00:05:14] Speaker 07: And if so, what was that manner? [00:05:17] Speaker 06: It was served under 4D. [00:05:19] Speaker 06: How? [00:05:20] Speaker 07: Specifically? [00:05:22] Speaker 06: By certified mailing. [00:05:24] Speaker 06: But the other issue with Rule 4D that we conceded is that the company we served is Cyprus. [00:05:31] Speaker 06: And there's no obligation under 4D for a Cyprus company to respond or be served. [00:05:38] Speaker 06: And if you remember, 4D doesn't obligate the other party to actually answer or sign or waive. [00:05:43] Speaker 06: It allows the plaintiff, if that other party is a domestic corporation, to recover the fees that it has by effecting a service under another manner. [00:05:54] Speaker 05: I'm not understanding what you're saying. [00:05:56] Speaker 05: We're trying to figure out whether you have an argument here that there was service [00:06:03] Speaker 05: before the one-year period yes and are you still arguing that there was service because of the waiver that's reflected in the emails no we're arguing that the email reflects their acquiescence to a waiver it also reflects their [00:06:25] Speaker 06: waving of the defense, which they say that the service under the Hague Convention was defective. [00:06:34] Speaker 06: That's been their argument in the IPR. [00:06:37] Speaker 06: Not that we didn't serve them under 4D. [00:06:39] Speaker 02: Can I try to make sure I understand? [00:06:41] Speaker 02: Are you saying you are not relying on the waiver itself for service? [00:06:48] Speaker 02: Instead, you are saying that the email [00:06:52] Speaker 02: reflects that the earlier service was proper? [00:06:55] Speaker 02: Is that what you're saying? [00:06:58] Speaker 06: It waives any defenses that it was improper. [00:07:02] Speaker 06: The objection to the Hague Convention of Service is that a copy of the summons didn't have the stamp. [00:07:11] Speaker 02: The copy of the summons, which makes it no service. [00:07:17] Speaker 07: Which means it's not a service under 4D. [00:07:20] Speaker 07: This is under 4, not 4D. [00:07:22] Speaker 07: I don't mean the under 4. [00:07:26] Speaker 07: Do you agree with that? [00:07:26] Speaker 07: It's not a service under 4 if it didn't have the proper stamp and signature. [00:07:32] Speaker 06: The materials that were served upon the process server had the proper stamp and the proper signature. [00:07:38] Speaker 06: The copy that was delivered to the defendant may or may not have. [00:07:43] Speaker 06: Because as we remember, the defendant said, I never got a copy. [00:07:47] Speaker 06: And the court resolved that issue and said, you got a copy. [00:07:51] Speaker 06: It may not have had a stamp on it. [00:07:53] Speaker 06: But the email, which was received by communication council after this service, said we do not believe service was properly affected on either wargaming entity. [00:08:08] Speaker 06: One was served under 4D. [00:08:09] Speaker 06: The other was served under the Hague Convention. [00:08:11] Speaker 06: It says, and we waive our defenses to improper service in exchange for a date farther along for them to file their answer. [00:08:19] Speaker 06: So they waived the defense. [00:08:21] Speaker 06: that there was no stamp, which makes this service become proper service. [00:08:26] Speaker 05: Not until it's filed with the court as a waiver. [00:08:30] Speaker 05: That's what 4D says. [00:08:32] Speaker 06: Right, but this isn't service under 4D. [00:08:36] Speaker 06: Service under 4D is not the same as service under the Hague Convention. [00:08:41] Speaker 06: Service under 4D is where you send a letter to the defense. [00:08:46] Speaker 05: 4D is concerned generally with defects in service, right? [00:08:50] Speaker 05: 4D? [00:08:51] Speaker 05: Yeah. [00:08:52] Speaker 05: Rule 4 is 4D. [00:08:53] Speaker 07: 4D is a different kind of... The only waiver under 4 is that provided by 4D. [00:08:59] Speaker 07: Do you agree with that? [00:09:00] Speaker 07: That's correct, yes. [00:09:02] Speaker 07: But that waiver is not consistent with what 4D says. [00:09:08] Speaker 06: This is not a request for waiver. [00:09:10] Speaker 06: This is service under the Hague Convention. [00:09:12] Speaker 06: So it's not under 4D. [00:09:15] Speaker 06: This is service under 4, I believe 4B. [00:09:18] Speaker 06: It's service under the Hague Convention, which is service by a process servant. [00:09:22] Speaker 06: Service under 4D is where I simply write a letter to the other side. [00:09:26] Speaker 07: Here's a copy of the complaint. [00:09:28] Speaker 06: Will you sign this and send it back? [00:09:30] Speaker 06: If they don't. [00:09:32] Speaker 06: But that didn't happen in this case, so it's irrelevant. [00:09:34] Speaker 06: Right. [00:09:34] Speaker 06: Go ahead. [00:09:35] Speaker 06: If they don't do that, and they're a domestic corporation. [00:09:37] Speaker 06: What happened in this case? [00:09:39] Speaker 06: We served them under the Hague Convention. [00:09:41] Speaker 06: They accepted service. [00:09:43] Speaker 06: under the Hague Convention and waive the defenses to improper service. [00:09:48] Speaker 02: They waived the defense that service was improper because it's... So the question for the board was what is the effective date of service here? [00:09:58] Speaker 02: And is that before or after the year bar time bar, right? [00:10:02] Speaker 02: Right. [00:10:03] Speaker 02: So the problem is that for the type of waiver that Rule 4D [00:10:09] Speaker 02: The effective date is the date that the waiver papers are filed with the court. [00:10:19] Speaker 02: So one of the problems with your argument is that you're arguing while the waiver occurred on the date of the email. [00:10:27] Speaker 02: I think that's what you're arguing. [00:10:29] Speaker 02: And the problem with that is that no waiver papers were filed. [00:10:32] Speaker 02: Alternatively, you may be arguing that the effective date is the date of the original service since they waived the defenses. [00:10:40] Speaker 02: And the problem with that is it seems to run counter with Rule 4D with respect to other kinds of waivers. [00:10:45] Speaker 02: So just so you understand the quandary up here. [00:10:50] Speaker 07: But your argument is an answer, if I may try it. [00:10:54] Speaker 07: Your argument is none of that's relevant to what you're claiming. [00:10:58] Speaker 07: You served under the Hague Convention. [00:11:01] Speaker 07: Correct. [00:11:03] Speaker 07: And that document is valid under the Hague Convention as a waiver of any formalities that may have been required. [00:11:12] Speaker 07: Of any defenses to any defects. [00:11:15] Speaker 05: Correct. [00:11:15] Speaker 05: But the waiver that you find in the email doesn't refer to the Hague Convention Service, does it? [00:11:23] Speaker 06: It refers to [00:11:27] Speaker 06: Either Wargaming Entity, one Wargaming Entity in Cyprus was served under Rule 14. [00:11:33] Speaker 05: But the answer is it doesn't refer to the Cyprus Service, right? [00:11:38] Speaker 06: It doesn't refer to the Cyprus or the England Service. [00:11:40] Speaker 06: It says we waive any defenses. [00:11:44] Speaker 06: We discussed on the phone that Mr. Collins believed that this cake. [00:11:50] Speaker 05: But it's not an agreement. [00:11:51] Speaker 05: It does not seem to me, on the face of it, that it's an agreement that the Cyprus Service was valid. [00:11:57] Speaker 05: It's not the Cypress Service, we're talking about the England Service. [00:12:00] Speaker 05: It's not an agreement that the England Service is valid. [00:12:08] Speaker 07: What does the Hague Convention require to make the England Service valid? [00:12:13] Speaker 07: What do you have to do? [00:12:15] Speaker 06: You have to serve [00:12:17] Speaker 06: The same thing you would serve on a domestic corporation. [00:12:20] Speaker 06: You have to get it translated into the language of the country you're serving it in. [00:12:24] Speaker 06: And you have to get a proper process server in that country to go to the OK Convention Authority, get a certificate that's attached to this, and then serve it and give you service. [00:12:34] Speaker 06: It's the same as process service. [00:12:36] Speaker 06: You just have to have a translation and a certificate from the other country. [00:12:40] Speaker 06: That's all in here. [00:12:41] Speaker 06: What the only defect [00:12:43] Speaker 06: was that when the process server printed out the summons, they didn't print out a copy of the summons that had the stamp on it, although they had a copy of the summons with the stamp on it. [00:12:53] Speaker 06: Did the Hague Convention service require that that be done? [00:12:58] Speaker 06: The Hague Convention doesn't require that, and we've satisfied the Hague Convention, which is that you have served something. [00:13:05] Speaker 05: My question is service in accordance with the Hague Convention, what [00:13:14] Speaker 05: filled out summons were not submitted. [00:13:20] Speaker 07: Does the Hague Convention require service consistent with the home country? [00:13:26] Speaker 07: Is that what it does? [00:13:27] Speaker 06: Yes. [00:13:27] Speaker 07: The Hague Convention does not have a... And consistent with the home country, it requires that you have a signed and stamped document handed over to the bad people. [00:13:38] Speaker 07: Correct. [00:13:38] Speaker 07: Right? [00:13:39] Speaker 07: Correct. [00:13:39] Speaker 07: Did that happen in this case? [00:13:41] Speaker 07: Your answer is no, but they waived the requirement. [00:13:45] Speaker 07: Correct. [00:13:46] Speaker 06: That's your case. [00:13:47] Speaker 06: But not waived service. [00:13:49] Speaker 06: They waived the defense to that requirement, which is different than waiving service. [00:13:54] Speaker 07: They waived the requirement for a signature and a stamp, is what you're saying, because they got everything else. [00:14:00] Speaker 06: Right. [00:14:01] Speaker 06: If in the US I had served it without a stamp, [00:14:04] Speaker 06: The defendant has two choices, come and challenge effective service, or come and answer the complaint. [00:14:11] Speaker 06: The defendant's counsel quite often calls and says, this or that, or it wasn't served on the right person. [00:14:17] Speaker 06: But we're waiving that defense, and we're answering the complaint. [00:14:20] Speaker 06: There would be a plethora of cases that I've been involved in that had no date of service and that would have an indefinite statute of limitations for IPRs. [00:14:30] Speaker 02: I question whether that's so because I think that the case has to be dismissed if 90 days after the complaint is filed there hasn't been any service yet. [00:14:40] Speaker 02: Or alternatively, appearance in court, for example, would be the effective date of service, right? [00:14:49] Speaker 02: So it's not like it's gonna go on indefinitely. [00:14:51] Speaker 02: At some point, there's gonna be some trigger that happens for the effective date of service. [00:14:59] Speaker 06: Correct. [00:15:00] Speaker 06: And quite often, as the federal rules increasingly, every time they change, they require more cooperation, less arguing, less fighting about technicalities and the like. [00:15:10] Speaker 06: And I know Mr. Collins, I've known him for a long time, involved in other cases. [00:15:14] Speaker 06: He's the kind of person that likes to avoid that kind of conflict, which is the right thing to do. [00:15:18] Speaker 06: And this email sets that date in stone in most cases. [00:15:22] Speaker 06: We are waiving our defense that you forgot to put a stamp. [00:15:27] Speaker 06: Therefore, this service becomes effective on its date, which was in December. [00:15:32] Speaker 07: Under what provision of Rule 4 does that comply? [00:15:40] Speaker 07: What part of Rule 4 does your methodology for service fit? [00:15:47] Speaker 07: Where in rule four are you? [00:15:51] Speaker 06: When certain I, it goes back to my opening question. [00:15:56] Speaker 07: My opening question was, does rule four apply to the PTAB? [00:16:00] Speaker 07: You said yes. [00:16:02] Speaker 07: All right. [00:16:02] Speaker 07: So service from the PTAB's viewpoint had to be done in accordance with rule four. [00:16:09] Speaker 07: Correct. [00:16:09] Speaker 07: You're now telling us [00:16:10] Speaker 07: It was done under the Hague Convention, and that waiver is effective under the Hague Convention. [00:16:18] Speaker 07: You don't need to comply with 4D. [00:16:21] Speaker 07: That's a whole different world. [00:16:22] Speaker 07: That's your argument. [00:16:24] Speaker 07: Where under Rule 4 are you? [00:16:26] Speaker 07: Help me find that. [00:16:28] Speaker 06: Rule 4 establishes that service is effective when the party becomes officially aware of the complaint that you've given them. [00:16:39] Speaker 06: whether by mailing, by waiver, by service of process, by any effective means. [00:16:48] Speaker 06: Clearly, when Mr. Collins called me, their client was fully aware of the complaint, of everything about that. [00:16:56] Speaker 06: And he followed it up with an email that said, we're waiving our [00:17:01] Speaker 06: any defenses to improper service, which, if not on the date of service, certainly on the date of this letter, which says, I am under no obligation to re-serve you. [00:17:12] Speaker 06: If he had said we're keeping our defenses, then I would now be on notice that he's not thinking they've been served, and I would have to serve him again under the Hague Convention. [00:17:20] Speaker 07: When, if ever, did you explain this to the PTAB? [00:17:25] Speaker 06: The PTAB? [00:17:26] Speaker 06: Yeah, the PTAB. [00:17:28] Speaker 06: That's what we're dealing with. [00:17:29] Speaker 06: In their decision. [00:17:30] Speaker 06: Clearly doesn't understand what service is. [00:17:33] Speaker 06: They said. [00:17:33] Speaker 03: Well, that's not the question. [00:17:35] Speaker 03: The question is, did you explain it to them? [00:17:37] Speaker 03: Yes, we explained it to them. [00:17:39] Speaker 03: If they need help, the question is, did you explain it to them? [00:17:42] Speaker 06: I explained it to them, actually, in my deck. [00:17:44] Speaker 06: We didn't do the IPR. [00:17:46] Speaker 06: It was done by Chigruh, I believe. [00:17:50] Speaker 06: And I filed a declaration in that. [00:17:52] Speaker 06: And I explained this to them in the declaration. [00:17:54] Speaker 06: Where? [00:17:55] Speaker 06: Can you show us where? [00:17:57] Speaker 06: Is that in the record somewhere? [00:18:11] Speaker 07: I didn't think it was in anybody's brief, but maybe it's in the record. [00:18:14] Speaker 02: Do you have an appendix page? [00:18:16] Speaker 02: It's probably best if you can give us an appendix page. [00:18:20] Speaker 06: Yeah, I'm going to give you – it's – it was Exhibit 2027. [00:18:29] Speaker 06: That doesn't help. [00:18:31] Speaker 06: I know. [00:18:31] Speaker 06: It's paper number 30. [00:18:34] Speaker 06: I don't have an appendix reference for that particular declaration. [00:18:39] Speaker 06: was a declaration that included appendix pages 1720 through 1757, which is the actual... Where did you make this R.M. [00:18:48] Speaker 06: in your brief here? [00:18:49] Speaker 04: Let's make it simpler. [00:18:51] Speaker 04: What's in the very beginning of the brief here? [00:19:01] Speaker 06: It's on page four of the brief. [00:19:05] Speaker 06: Page four of the brief? [00:19:07] Speaker 06: Wargaming specifically unequivocally waived the right to argue lack of service on February 11, 2016. [00:19:12] Speaker 05: Yeah, but that's not directed to the waiver argument that you're making now with respect to the Great Britain service. [00:19:19] Speaker 05: You were arguing that this was sufficient under Rule 4D. [00:19:23] Speaker 05: Where do you say they waived the defect in the Great Britain service? [00:19:29] Speaker 06: It's at the top of the page where I quote, and our defenses to improper service. [00:19:34] Speaker 06: That's it? [00:19:35] Speaker 06: Well, that's the only place you argued it? [00:19:40] Speaker 06: It's starting on page three, going to page four, and then again. [00:19:45] Speaker 05: My question is specific. [00:19:46] Speaker 05: Where did you argue that there was a wave defect in the Great Britain service? [00:20:18] Speaker 06: On page 5, we quote where the P tab concluded, [00:20:26] Speaker 06: where petitioner argued they had never been served. [00:20:31] Speaker 06: And then the PTAB concluded that the... Where did you argue that they had by the emails waived the great written service TTAB? [00:20:41] Speaker 06: I cite where the PTAB says that it was not effective. [00:20:44] Speaker 06: And then this first full paragraph on page six, TTAB simply ignored or did not understand the additional language in the email. [00:20:52] Speaker 06: We waived service in our defense to improper service. [00:20:55] Speaker 06: Wargaming did not [00:20:57] Speaker 06: reserve nor preserve this defense. [00:20:58] Speaker 06: War game especially notice and knowledge of perceived deficiency in the service knowingly waive this defense. [00:21:06] Speaker 06: The assertion that war game has never been served is absurd. [00:21:10] Speaker 06: So we say that the court said that the service, the process service under the Hague Convention was defective and therefore there was no service. [00:21:21] Speaker 06: We said that ignored the fact that they waived their defense. [00:21:24] Speaker 07: But in the very next paragraph, you say, the assertion that war gaming has never been served is a legal absurdity. [00:21:32] Speaker 07: War gaming extensively participated in the district court proceedings, including attending a hearing and filing and pleadings. [00:21:40] Speaker 07: To claim that war gaming had never been served is to elevate misperceived form well over real substance. [00:21:47] Speaker 07: War gaming's counsel agreed to waive service and waived all service defenses. [00:21:52] Speaker 07: A party cannot simply walk away from a litigation, discredit its own counsel's written agreement. [00:21:58] Speaker 07: Nothing in that ever pointed, I'm slow and so you have to help me, nothing in that ever pointed in the direction you're now leading us. [00:22:07] Speaker 07: So I can understand why the PTAB might have not been able to figure out what to do because I've been working on the assumption that all of this took place either consistent with or failed to be consistent with Civil Procedure Rule 4. [00:22:28] Speaker 07: You're now telling me Rule 4 has nothing to do with it. [00:22:31] Speaker 07: It was all done under [00:22:33] Speaker 07: the Hague Convention, and that under the Hague Convention, that waiver is valid. [00:22:39] Speaker 07: Well, where do you lay all that out? [00:22:42] Speaker 06: What's your source for that? [00:22:44] Speaker 06: It's under Rule 4, but not Rule 4D, and we lay it out again at the end of page 7, where the PTAP talks about it. [00:22:51] Speaker 02: What about in your argument later in the brief? [00:22:54] Speaker 02: Like, you seem to have a standards review section, an actual arguments section that starts on page 20. [00:23:01] Speaker 06: Correct. [00:23:02] Speaker 02: Where is it, Mike Brown, page 20 and onward? [00:23:07] Speaker 06: Let me just finish pointing out at the bottom of page 7, beginning of page 8, where we say, in this instance, the form, i.e. [00:23:13] Speaker 06: missing seal, does not matter because waiver of the defense of missing seal is explicitly waived at 1631. [00:23:20] Speaker 06: So we do make that argument. [00:23:22] Speaker 06: And then again, [00:23:24] Speaker 05: Where do you make the argument in the brief? [00:23:25] Speaker 06: That's what we're talking about. [00:23:27] Speaker 06: The brief. [00:23:28] Speaker 06: Where do you make the argument? [00:23:29] Speaker 06: Where do you... That's in the brief. [00:23:31] Speaker 06: That's end of page seven, beginning of page eight in the brief. [00:23:35] Speaker 06: Where you make that statement. [00:23:41] Speaker 05: All right. [00:23:41] Speaker 05: Well, unless there are other questions. [00:23:43] Speaker 05: I think we're out of time. [00:23:45] Speaker 05: Okay. [00:23:45] Speaker 05: We'll give you two minutes. [00:24:11] Speaker 07: You're going to straighten this out, aren't you, Mr. Batt? [00:24:14] Speaker 00: I hope so, Your Honor. [00:24:15] Speaker 00: May it please the Court, Harper Batts, on behalf of the appellees. [00:24:19] Speaker 00: I think there's two determinations by the PTAP below. [00:24:23] Speaker 00: First, our determination that the PTAP made was that the challenge claims run patentable. [00:24:27] Speaker 00: And the second determination that was the full discussion here today was that the PTAP determined that the petition was not time-barred. [00:24:34] Speaker 00: Now, both of those decisions are supported by substantial evidence, and I'd like to turn to the time bar one, since that's been the focus here. [00:24:43] Speaker 00: There have been shifting positions by the appellant as to what would constitute the time bar for 315B, and if we go back to the language of 315B, it's clear that it's supposed to be service. [00:24:55] Speaker 07: I reserve the right to come back to your substantial evidence, which you threw in there as you went past it, so... Noted, Your Honor. [00:25:04] Speaker 07: Okay, go ahead. [00:25:05] Speaker 00: So there's two arguments that the appellant raised before the PTAB asked to serve us. [00:25:12] Speaker 00: There was the events in Cyprus and the events in the UK. [00:25:15] Speaker 00: And I'll turn to each in turn. [00:25:17] Speaker 00: So with Cyprus, they contended that they had served in a foreign country by mail. [00:25:24] Speaker 00: And the relevant provision for Rule 4 there is Rule 4F2C2. [00:25:30] Speaker 00: And the relevant provision requires that when trying to serve in a foreign country by mail, you're required to have the court of court mail the materials and to return a signed receipt. [00:25:40] Speaker 00: And the undisputed facts in the record below are that Mr. Zito, Appellant's counsel, mailed the materials and there was no evidence of a signed receipt. [00:25:50] Speaker 00: So therefore there was no service in Cyprus and the facts there are all in favor of no service in Cyprus. [00:25:58] Speaker 00: There's no dispute of facts that the PTAB had to consider. [00:26:01] Speaker 00: So then turning to the UK and the events in the UK, the appellant contended that it had served in the UK under the Hague Convention. [00:26:11] Speaker 00: And the Hague Convention requires that assigned and sealed summons be included in the materials. [00:26:16] Speaker 00: And I do think it would be useful maybe to go back through the history of what happened in the proceedings because the original documents pre-institution that they relied upon was appendix 1720 through 1757. [00:26:29] Speaker 00: And at the end of that document, they was attached two pages, 1754 and 1756, which included signed and sealed summits. [00:26:38] Speaker 00: But we deposed the process server, Mr. Tabbitt, in the UK. [00:26:42] Speaker 00: And he confirmed that there is no way that this set of documents was the documents that he served. [00:26:47] Speaker 05: OK, but this seems to be conceded that they weren't properly served. [00:26:51] Speaker 05: They're already been boiled down, as I understand it, entirely. [00:26:58] Speaker 00: But I agree, Your Honor, that seems to where we're at. [00:27:02] Speaker 00: And in terms of the waiver argument, I think the first point that I would note is that there is no briefing on waiver before the PTAC. [00:27:11] Speaker 00: They never raised the issue of waiver in any form, whether we're talking about rules. [00:27:15] Speaker 02: I saw that there was a discussion of waiver in the oral argument transcript. [00:27:19] Speaker 00: Correct. [00:27:20] Speaker 00: But in the briefing, there was absolutely no discussion of waiver in any form, including waiver under Rule 4D. [00:27:26] Speaker 00: At the hearing for the first time, they raised the issue of whether we had waived service. [00:27:34] Speaker 00: They did not raise the issue of whether the email 1631 constituted. [00:27:41] Speaker 00: There were statements in that email that meant we were waiving our rights to contest whether service had been effectuated. [00:27:49] Speaker 00: So they were at best at the hearing, it wasn't a really clear argument at the hearing, but it was an argument about whether waiver under 4D had been performed. [00:27:59] Speaker 07: Was it waiver under 4D or some other kind of waiver? [00:28:04] Speaker 07: His argument, if I understand it, and I can't swear I do, his argument is the waiver involved in this particular fact situation is not a waiver under 4D. [00:28:18] Speaker 07: It's a waiver under the general principles of the Hague Convention. [00:28:24] Speaker 07: You don't have to comply with 4D, according to his argument. [00:28:29] Speaker 07: You can have a waiver in an email like that, which you can't do under 4D, as we all know. [00:28:37] Speaker 00: So I think going back to the statute that we're talking about here, we're talking about 315B, which requires service. [00:28:45] Speaker 00: Now there's an open question, I think, here, whether even a 4D submission of a waiver of service could constitute service under 315B. [00:28:53] Speaker 00: But we don't need to address that here today, because they did not provide the written materials, the form for waiver of service, and they never filed anything before the board. [00:29:01] Speaker 00: So we don't need to talk about that. [00:29:02] Speaker 02: In the oral argument transcript, I see no express reference to Rule 4 or Rule 4D. [00:29:09] Speaker 02: So can you tell me what you're relying on to say this discussion is limited to Rule 4D? [00:29:15] Speaker 00: That's the best that I see from that discussion in the transcript, Your Honor, is they were saying we waived service. [00:29:21] Speaker 02: And so you're surmising that they meant waiver under Rule 4D. [00:29:25] Speaker 00: That was all we had to do. [00:29:27] Speaker 02: But you're not suggesting that that rule was actually expressly invoked or referred to. [00:29:34] Speaker 00: No, Your Honor. [00:29:35] Speaker 00: And we're left kind of guessing what their arguments were, because they waived these arguments by not raising any of the arguments in their briefings. [00:29:41] Speaker 07: And his blue brief is written consistent with what Judge Stolger said, which is there's nothing in the blue brief [00:29:50] Speaker 07: although I haven't gone back thoroughly since we've been talking, that limits his waiver argument to Rule 4. [00:29:59] Speaker 07: So he'd been talking about waiver, he just didn't tell us what the waiver was, what its legal basis was. [00:30:06] Speaker 07: He told us what it was, it was that email. [00:30:09] Speaker 07: But that could, you're assuming it had something to do with Rule 4. [00:30:15] Speaker 07: I must confess I was under that same mistaken impression. [00:30:19] Speaker 07: But apparently, that's not what he meant. [00:30:22] Speaker 00: So it appears there is two separate arguments from Best What I Can Tell, an argument about Rule 4D and whether that was complied with, and now this separate argument about whether the statements in the email with some theory could constitute an inability to argue that that service had been effectuated. [00:30:40] Speaker 05: And I think that goes back to- In Great Britain. [00:30:43] Speaker 05: In Great Britain. [00:30:43] Speaker 00: In Great Britain. [00:30:44] Speaker 05: He seems to have given up on the argument [00:30:46] Speaker 05: that there was a waiver of service that complied with 4D. [00:30:50] Speaker 05: Yes. [00:30:50] Speaker 05: He's now coming up with what seems to be a new argument, which is difficult to find in the briefing or argument before the PTAB and is difficult to find in the briefs here. [00:31:02] Speaker 02: I understand also below there was argument about whether service was properly affected either in England or in Cyprus, but I don't see that necessarily being raised separately from the waiver argument on appeal. [00:31:18] Speaker 02: Do you agree with that? [00:31:21] Speaker 00: I'm not sure I understand the question. [00:31:22] Speaker 00: I apologize, Your Honor. [00:31:23] Speaker 02: I'll ask the Housing Council. [00:31:24] Speaker 02: Thank you. [00:31:25] Speaker 00: I guess the point that I would like to make is that we're struggling here with [00:31:28] Speaker 00: What is the basis for this new argument about the email and the statements in the email? [00:31:36] Speaker 00: Because if it's not Rule 4 and the Hague Convention doesn't have any provision about waiver, then there's no case law support that Appellant has provided for this argument. [00:31:47] Speaker 00: then what is the basis for the argument to say that any statements in an email can constitute an inability to argue that the statute 315B, not anything that happened in the district court, but to argue whether service has occurred and the service that's required to bar a petitioner from being able to file an IPR. [00:32:07] Speaker 07: Yeah, the problem with that is, I don't know if you wrote the email, whoever wrote that email was under the view that [00:32:18] Speaker 07: he or she was waiving any defect in the service and said so. [00:32:25] Speaker 07: Now, if that person was representing a party, then that party may be stuck with that person's waiver if that waiver is a legal act. [00:32:40] Speaker 07: And the question as to, we've all been assuming the problem with the waiver argument was 4D, but now he's got a whole other theory [00:32:48] Speaker 07: People waive stuff all the time, and that email would sound like a waiver if it can be done. [00:32:58] Speaker 07: But can it be done under the Hague Convention? [00:33:00] Speaker 07: Do you happen to have any information on that question? [00:33:04] Speaker 00: Unfortunately, I don't have the provision, but I'm aware of no provision in the Hague Convention that permits a waiver of the type we're talking about. [00:33:10] Speaker 07: Are you aware of any that precludes it? [00:33:13] Speaker 07: No, Your Honor. [00:33:13] Speaker 07: Yeah, that's where we are, isn't it? [00:33:16] Speaker 07: Yes. [00:33:17] Speaker 00: But I do think that goes back to a question of whether, in the district court, whether you're required to now show up for a hearing and whether you're subjecting yourself to the jurisdiction of the court requires, in a waiver situation, for you to file an affirmative waiver. [00:33:31] Speaker 00: Similarly here, we appeared voluntarily before the court and then filed our IPR petition within the one year bound of that voluntary appearance. [00:33:40] Speaker 00: But there is no waiver in the lower, there is, that does not equate to a prevention of an IPR petition from being filed under 315B when the clear facts here are that there was no service. [00:33:56] Speaker 00: The undisputed facts are that, I mean, Mr. Zito added some views of his own that are not in the fact record as to what happened with the process. [00:34:06] Speaker 07: Now, you all participated in the district court. [00:34:09] Speaker 00: I'm not part of the District Court proceedings, Your Honor. [00:34:12] Speaker 00: You mean me personally? [00:34:13] Speaker 07: I don't mean you personally. [00:34:14] Speaker 07: I'm talking about your client. [00:34:16] Speaker 07: Yes, Your Honor. [00:34:16] Speaker 07: Participated in the District Court. [00:34:18] Speaker 07: Yes. [00:34:18] Speaker 07: And the question of service was never raised in the District Court. [00:34:23] Speaker 07: The District Court assumed that all the parties were there properly. [00:34:27] Speaker 07: Is that correct? [00:34:28] Speaker 05: we voluntarily appeared uh... in the district court your honor for the hearing and we made sure to file our IPR less than a year after that voluntary appearance by appearing in the district court that was subjected to the jurisdiction of the district court correct so what i don't have the text of 4D in front of me unfortunately what is [00:34:48] Speaker 05: 4D say, do you have a text? [00:34:52] Speaker 00: So 4D, I don't have it memorized exactly, but its provisions require that the council that's requesting the waiver send in writing and notify in writing the other side and send them a form for waiver and then to obtain... Was there a form for waiver sent with the material that was served in Great Britain? [00:35:12] Speaker 00: No, Your Honor. [00:35:14] Speaker 00: there's no evidence in the record of any form of waiver being submitted to Wargaming at any time. [00:35:19] Speaker 07: I happen to have a copy of Rule 4D in front of me and it says waving service. [00:35:27] Speaker 07: That's the heading. [00:35:28] Speaker 07: Waving service. [00:35:30] Speaker 07: One, requesting a waiver. [00:35:33] Speaker 07: And then it goes through how you go about requesting a waiver. [00:35:37] Speaker 07: And then it says failure to waive. [00:35:41] Speaker 07: and results of filing a waiver. [00:35:44] Speaker 07: And the whole thing is designed for the plaintiff to ask the defendant, wouldn't you rather waive service and have us go through the expense, which is going to cost all of us money? [00:35:57] Speaker 07: That's apparently the only waiver provision in Rule 4 that I could find. [00:36:02] Speaker 00: I believe that's correct, Your Honor. [00:36:03] Speaker 02: I'd like to ask you a hypothetical. [00:36:06] Speaker 02: Let's assume for a minute that that procedure was properly followed. [00:36:10] Speaker 02: Okay, there's a statement in the PTAB's opinion that is a bit concerning. [00:36:14] Speaker 02: They say we have no authority to overlook defects in service of a complaint in district court litigation and deemed service to have occurred. [00:36:23] Speaker 02: In a situation where [00:36:26] Speaker 02: sources of law, including rule four, would suggest that service had occurred even though there were defects in service. [00:36:34] Speaker 02: For example, if someone actually complied with rule four B. Would you agree that the PTAB does have authority to overlook defects in service or at least determine whether service occurred in district court in order to implement the language in section 315? [00:36:54] Speaker 02: I'm not aware that it has that authority, Your Honor, and the case is... You think it can't interpret what service means under Section 315? [00:37:03] Speaker 00: I think that it can't interpret what service means. [00:37:05] Speaker 02: Well, doesn't it have to then look to what the law is on when service was affected in order to be able to interpret that statutory language? [00:37:14] Speaker 02: I mean, that statute, when Congress passed that statute, 315B, there was a set of laws that already existed as to what service is. [00:37:23] Speaker 02: And so can the P tab go to those set of laws to determine whether service has occurred? [00:37:30] Speaker 00: But here, there wasn't a question. [00:37:31] Speaker 00: Well, the answer is yes. [00:37:32] Speaker 00: Of course they had to, right? [00:37:34] Speaker 00: I said it's a hypothetical. [00:37:35] Speaker 02: I said it's a hypothetical. [00:37:37] Speaker 02: I'm just trying to see what the PTAB is authority to do. [00:37:39] Speaker 00: Yes. [00:37:39] Speaker 00: So I believe, yes, Your Honor. [00:37:41] Speaker 00: And what we did here was for the facts here, we provided the case law from district courts and from appeals courts that dealt with the issues of defects in service, including assigned and sealed summons, to show those are the types of defects that aren't corrected. [00:37:55] Speaker 05: But I think what the PTAB was saying is if they didn't comply with the federal requirements for service, we can't excuse that. [00:38:05] Speaker 00: I think that's one interpretation, yes, Your Honor. [00:38:07] Speaker 00: Is that your interpretation? [00:38:12] Speaker 00: It's not clear to me, Your Honor, because the point that you're raising here, whether that's what they intended or not. [00:38:18] Speaker 00: But I don't think that they were addressing the issues that have been raised before them on the Cyprus events, the Hague events. [00:38:25] Speaker 05: They did look to Rule 4. [00:38:26] Speaker 05: They did try to determine whether service was affected under Rule 4, right? [00:38:31] Speaker 05: They made those determinations. [00:38:32] Speaker 05: Definitely. [00:38:33] Speaker 05: Yes, Your Honor. [00:38:33] Speaker 07: But at the institution stage, they basically said, we can't deal with this. [00:38:39] Speaker 07: And I see now why they can't. [00:38:41] Speaker 07: So we're going to assume, we're just going to pass it over. [00:38:45] Speaker 07: We're not going to deal with it. [00:38:46] Speaker 07: We're going to leave it for the merits panel to decide at a later time. [00:38:51] Speaker 07: So isn't that bait? [00:38:52] Speaker 07: Now the only question I think Judge Stoll raises is can they do that? [00:38:57] Speaker 02: So I think my question is actually slightly different. [00:39:00] Speaker 02: I just want to make sure. [00:39:01] Speaker 02: I'm not concerned about whether they did it at institution stage or later at final stage because they were waiting for further discovery information. [00:39:10] Speaker 02: Rather, I was just concerned that that sentence read as if they don't think they have authority to look at what service means and under rule four. [00:39:19] Speaker 00: And I guess to address your concern, Your Honor, [00:39:23] Speaker 00: I believe that the Woodford decision that we cited on page 48 of our briefing, the Supreme Court decision, made clear that if you have a complaint about the procedures of administrative agency, that you have to make a timely objection. [00:39:40] Speaker 00: And there was never any objection by appellant as to the institution decision. [00:39:44] Speaker 00: They never moved to reconsider. [00:39:46] Speaker 00: We had the supplemental briefing after the PTAB looked and said there's competing evidence, but we're not seeing service, so we're moving forward. [00:39:52] Speaker 00: Not one time in all the briefing, in the three sets of briefing that we had, or in any of the options that they had for briefing, did they raise an impropriety of the institution decision. [00:40:02] Speaker 05: Okay. [00:40:05] Speaker 05: All right. [00:40:05] Speaker 05: All right. [00:40:06] Speaker 05: Thank you very much. [00:40:17] Speaker 06: That's not correct, John. [00:40:18] Speaker 06: We did raise it throughout the briefing. [00:40:20] Speaker 06: And also, because the PTAP didn't make a decision on service or not service, it wasn't a final decision that we could then appeal. [00:40:29] Speaker 06: They said we're holding that over until trial. [00:40:32] Speaker 06: So there was no decision to appeal early on, to ask for interlocutory appeal. [00:40:36] Speaker 06: All right. [00:40:36] Speaker 06: Before I run out of time, [00:40:38] Speaker 06: On page three, where I start the statement. [00:40:42] Speaker 06: What document? [00:40:43] Speaker 06: Our brief, our opening brief. [00:40:45] Speaker 06: OK. [00:40:45] Speaker 06: Where I start the statement of case, I talk about war gaming was properly served on December 10, 2015. [00:40:51] Speaker 06: December 10, 2015 is the Hague Convention, not the waiver of service in Cyprus. [00:40:57] Speaker 06: So we're talking about the Hague Convention. [00:40:59] Speaker 06: At the bottom, we say, [00:41:09] Speaker 06: Westport want to say, we will waive service and our defenses to improper service. [00:41:14] Speaker 06: And then at the end of that very first section, pages three and four, Wargaming's specific uncle would waive the right to argue lack of service on February 11, 2016. [00:41:24] Speaker 06: And I'm at all times referring to Appendix Document 1972, which is the Hague Convention, not the 4D in Cyprus, the Hague Convention in England. [00:41:36] Speaker 06: What is the document number and where is that in the appendix? [00:41:40] Speaker 06: Appendix 1-9-7-2. [00:41:41] Speaker 06: 1-9-7-2. [00:41:42] Speaker 06: That's the Hague Convention. [00:41:44] Speaker 06: That's what's referenced at the very beginning on page 3. [00:41:47] Speaker 06: And that's the one we're talking about. [00:41:52] Speaker 06: The Hague Convention is just like regular service by a process server. [00:41:56] Speaker 06: You don't have a follow-up, as in 4D, where you file the waiver with the court. [00:42:02] Speaker 06: What you have is a document that shows you served somebody, and they have a date they have to answer. [00:42:07] Speaker 06: They either call you up and ask for an extension, or they answer by that date. [00:42:11] Speaker 06: If they don't answer by that date, then you go to the court and say, here's my process server, they're in default. [00:42:19] Speaker 06: And in this case, they waived. [00:42:21] Speaker 06: If I had done that, they had already waived. [00:42:24] Speaker 06: We have no defense to not being properly served. [00:42:27] Speaker 06: We are in default. [00:42:28] Speaker 06: Give us some time to correct it. [00:42:30] Speaker 06: That's the situation. [00:42:31] Speaker 06: So if I have a process server document, [00:42:34] Speaker 06: And opposing counsel calls me up, says, I think there's a defect, but I'm waiving the defenses to service. [00:42:39] Speaker 06: There's nothing else I'm supposed to do as a plaintiff. [00:42:43] Speaker 06: There's no 4D letter that you file with anybody. [00:42:46] Speaker 06: He's been served. [00:42:47] Speaker 06: He's agreed that he's been served. [00:42:49] Speaker 06: He's waived his defenses. [00:42:50] Speaker 06: If he goes into default, which is why he asked me for an extra 60 days, he didn't want to go into default. [00:42:56] Speaker 06: We had a hearing already set up in Texas. [00:42:58] Speaker 06: The preliminary hearing is already set up. [00:43:00] Speaker 05: OK, Mr. Zieto, we're over your time. [00:43:04] Speaker 05: No, no, no, no, that's your outcome. [00:43:08] Speaker 05: Thank you. [00:43:08] Speaker 05: Thank you.