[00:00:00] Speaker 01:
Number 19, 2057, Bilox Technologies, LLC, against unified patents.

[00:00:08] Speaker 01:
Mr. Hart.

[00:00:09] Speaker 02:
Please record.

[00:00:10] Speaker 02:
I'm John Hart representing Bilox Technologies.

[00:00:14] Speaker 02:
I'll begin by discussing the validation of claim three.

[00:00:20] Speaker 02:
If you refer to the appendix at 144, you can see that claim three is directed at formatting data for display.

[00:00:27] Speaker 02:
Claim three also recites a limitation

[00:00:30] Speaker 02:
or a truncation step that begins with the word if, which arguably makes the claim a conditional limitation.

[00:00:37] Speaker 02:
And I'm going to address the conditional limitation at this point.

[00:00:43] Speaker 02:
If you refer to the appendix 18 to 22, that's the final written decision, you'll see that the board invalidated independent claim three, in part by applying one of the board's precedential opinions, ex parte Schulhauser,

[00:00:58] Speaker 03:
to eliminate the... Do I understand correctly that that part of the decision is not necessary to the board's decision because the board also found both of the if possibilities taught or rendered obvious by the prayer heart?

[00:01:16] Speaker 02:
Well, the board was addressing both claim one and claim three.

[00:01:21] Speaker 02:
Claim one legitimately has two if statements.

[00:01:25] Speaker 02:
Claim three only has one.

[00:01:28] Speaker 02:
So the application of Schielhauser is a little bit different depending on which claim you're looking at.

[00:01:33] Speaker 02:
Right.

[00:01:33] Speaker 03:
I may have stated my question not quite right.

[00:01:38] Speaker 03:
I took it from the board decision that we do not have to reach that Schumacher issue because the board found even apart from that, that the claims

[00:01:53] Speaker 03:
would have been obvious in light of the priority.

[00:01:56] Speaker 02:
That's what the court's decision said.

[00:01:57] Speaker 02:
Yes, sir?

[00:01:59] Speaker 02:
Going back to the conditional limitation in the application of Schulhauser, as you note, the board's action of applying Schulhauser to claim three completely wrote out the only data formatting limitation of a claim that's directed to formatting data, which is claim three.

[00:02:21] Speaker 02:
So leaving claim 3 with absolutely no limitations that are relevant to data formatting.

[00:02:28] Speaker 02:
The board characterizes decision as consistent with Schulhauser as a matter of law.

[00:02:35] Speaker 02:
That is, the board asserted that per Schulhauser, any conditional claim limitation may be written out, ignored, expunged when applying prior art references.

[00:02:47] Speaker 02:
To quote the final written decision,

[00:02:49] Speaker 02:
as discussed above, the broadest reasonable interpretation of a method claim that includes a conditional step encompasses where only the non-conditional steps will perform.

[00:02:59] Speaker 02:
And that's exactly what the board's conclusion was with respect to claim three.

[00:03:04] Speaker 02:
In other words, according to the board, per Schulhauser, the conditional limitation need not be found in the prior art.

[00:03:11] Speaker 02:
But Schulhauser does not say that.

[00:03:14] Speaker 02:
If you read Schulhauser, it applies to mutually exclusive steps.

[00:03:19] Speaker 02:
if one step or the other step.

[00:03:21] Speaker 02:
And again, in claim three, we have one conditional limitation.

[00:03:26] Speaker 02:
Furthermore, the board's decision is based on facts that were not present in Schulhauser.

[00:03:31] Speaker 02:
Schulhauser specifically requires mutually exclusive steps.

[00:03:36] Speaker 02:
Claim three does not have mutually exclusive steps.

[00:03:39] Speaker 02:
Furthermore, there's no authority that says any conditional claim may just be written out of an application.

[00:03:47] Speaker 02:
as the board's action with respect to Claim 3 were contrary to the board's own precedential decision, that's Schulhauser, and also contrary to one of its non-precedential decisions, ex parte goblin, which I think, if applied by the board, would have retained that conditional step in Claim 3.

[00:04:08] Speaker 02:
Furthermore, the board's actions are contrary to this court's decision, notably high terror communications versus

[00:04:16] Speaker 02:
Motorola Solutions, which is Appeal 19-2124, Federal Circuit 2021, which cites Lincoln Life, a prior decision from this court in 2010.

[00:04:29] Speaker 02:
Now, we did not brief Highterra in the papers that we submitted to this court for appeal.

[00:04:38] Speaker 02:
I'm talking about it now for the first time.

[00:04:42] Speaker 02:
But Highterra was issued after the final written decision

[00:04:45] Speaker 02:
in the IPR that we're appealing from.

[00:04:50] Speaker 02:
Highterra held that to render obvious a claim at issue, the prior art must teach each step of the claim, including the responses to each condition.

[00:05:02] Speaker 02:
This is because the claim at issue in Highterra, at least, required performance of a selecting step in response to either of two conditions.

[00:05:14] Speaker 00:
Counselor, a standard review here with respect to many of the arguments that you just made is substantial evidence, whether the board's decision is supported by substantial evidence.

[00:05:28] Speaker 00:
Yet it seems to me that there is a little battle of the experts going on here.

[00:05:32] Speaker 00:
And your expert was testimony, and the evidence that you put forward with your expert was discounted significantly.

[00:05:42] Speaker 00:
And whereas on the other side, it was crediting.

[00:05:46] Speaker 00:
Isn't that your problem, the big problem you have to overcome now?

[00:05:51] Speaker 02:
Your Honor, it's a problem with respect to talking about what the references teach and what they don't teach.

[00:05:57] Speaker 02:
But I'm focusing just on right now application of legal precedent to the facts.

[00:06:04] Speaker 00:
OK.

[00:06:04] Speaker 00:
I wanted to hear something different, but you can answer my question when you get to it.

[00:06:11] Speaker 02:
So with Claim 3, there's but one condition, and Claim 3 cannot be analyzed by analogy to Schuhlhauser.

[00:06:19] Speaker 02:
To summarize, Claim 3 recites one method that requires execution of an iterative truncation step in order to format data for display.

[00:06:31] Speaker 02:
And Judge Raina, I will discuss the iterative truncation step and the issues that were brought up with that.

[00:06:37] Speaker 02:
So under a height terra, a reference would have to be capable of iterative truncation in order to anticipate claim three.

[00:06:47] Speaker 02:
Yet the board wrote that limitation out of the claim.

[00:06:51] Speaker 02:
Having shown that the law of this court requires a reference teach, the conditional limitation of claim three, I'll move on to a review of what Bertram actually teaches.

[00:07:04] Speaker 02:
But before I get into what Bertram teaches,

[00:07:06] Speaker 02:
just to give the court some understanding or better understanding of the claim that we're talking about here, claim three.

[00:07:14] Speaker 02:
I'll refer you to the appendix, page 135, which is the 423 patent, column 8, lines 47 to 67.

[00:07:23] Speaker 02:
There you will find an example of the type of truncation that's recited in claim three.

[00:07:30] Speaker 02:
And the example applies to a list of cities, many, perhaps thousands of cities that you want to display on one screen.

[00:07:38] Speaker 02:
And it goes through an iterative truncation to get the list of cities down to three entries, because the screen can only show three rows of data.

[00:07:47] Speaker 02:
So we have to go through this iterative truncation, which goes very quickly to display that.

[00:07:53] Speaker 02:
Now turning to Bertram, if you look at appendix 1919, it's figure seven.

[00:08:01] Speaker 02:
This illustrates Bertram's process, 162, for reducing width of columns so that all columns in a database can be squeezed onto one page or one display screen.

[00:08:16] Speaker 02:
So there's a data formatting operation in Bertram that begins by abbreviating the characters to reduce the width of the column as much as possible.

[00:08:31] Speaker 02:
So the abbreviation step might be to change a capital letter to a lowercase letter, for example.

[00:08:38] Speaker 02:
And that goes through.

[00:08:39] Speaker 02:
Now, after all that abbreviation is done, if the column width is still too wide, then Bertram has a one-time truncation, which in figure 7 is steps 194 and 196.

[00:08:53] Speaker 02:
So step 194 checks the width of a current column against the set width.

[00:08:59] Speaker 02:
And if it's too large,

[00:09:01] Speaker 02:
Step 196 truncates the entry in that column so that the column is at the set width.

[00:09:11] Speaker 03:
What units does Bertram use for measuring width?

[00:09:16] Speaker 03:
Bertram does not disclose that.

[00:09:18] Speaker 03:
That's one of the issues that's been innocent.

[00:09:21] Speaker 03:
It doesn't teach using, perhaps among others, characters as units.

[00:09:31] Speaker 02:
has a display that shows that after truncation, there are allegedly five characters in a column.

[00:09:40] Speaker 02:
And the example they give is in table eight of Bertram.

[00:09:45] Speaker 03:
Is that the one where perhaps the written description in Bertram suggests that the figure in Bertram is off?

[00:09:58] Speaker 02:
No.

[00:09:58] Speaker 02:
It's not, Your Honor.

[00:10:00] Speaker 02:
Figure eight shows the first column with the word system with no lowercase letters or letters removed.

[00:10:09] Speaker 02:
And it's six characters long.

[00:10:12] Speaker 02:
Now the board argues that it should be S-T-Y-M-E with no M at the end of it.

[00:10:17] Speaker 02:
Conceding that, arguably, there's another column that's got six characters in it.

[00:10:24] Speaker 02:
And then there's, so not all the columns in table eight actually display

[00:10:30] Speaker 02:
five characters.

[00:10:32] Speaker 02:
And I don't know where the disconnect is in that.

[00:10:35] Speaker 03:
But the written description, putting aside the figure, still teaches a truncation to five, is that right?

[00:10:46] Speaker 03:
Even if the figure doesn't come within that set of words.

[00:10:53] Speaker 02:
Well, I don't agree that it does.

[00:10:57] Speaker 02:
But I'm not here to argue that point.

[00:10:59] Speaker 02:
If we just accept that, for argument's sake, it really has no bearing on claim three.

[00:11:06] Speaker 02:
Because claim three has the feature that's in claim three that's not taught by Bertram is iterative truncation.

[00:11:15] Speaker 02:
And that iterative truncation is in the example that I mentioned about truncating a list of 1,000 cities down to three

[00:11:24] Speaker 02:
entries that will cover all of those cities.

[00:11:28] Speaker 02:
So in claim three, the entry that has to be truncated has one letter or two letters cut off the end of it, and then the width is checked.

[00:11:43] Speaker 02:
And if you need to do more, you cut off more.

[00:11:45] Speaker 02:
And that loop continues until all the rows of data can be displayed on one screen.

[00:11:51] Speaker 02:
And that's the way claim three works.

[00:11:54] Speaker 02:
Again, Birchham has a one-time truncation.

[00:11:57] Speaker 02:
And once that truncation is done, then the columns are displayed.

[00:12:02] Speaker 02:
So there's no iterative step in Birchham.

[00:12:06] Speaker 02:
And that's important in our invention, because we want to maintain as much information as possible.

[00:12:12] Speaker 02:
So we don't want to cut off extra characters just because we can.

[00:12:17] Speaker 02:
We want to cut them off in a way that gets to the right number of rows of data

[00:12:24] Speaker 02:
without cutting off any more information about the cities.

[00:12:28] Speaker 02:
And just to be clear, in claim three we're talking about one column with maybe a thousand rows and we want to end up with one column with three rows.

[00:12:39] Speaker 02:
How do you truncate to do that?

[00:12:40] Speaker 02:
That's what claim three does.

[00:12:42] Speaker 02:
Bertram starts out with perhaps a hundred columns and they want to make them skinny so they'll fit on one page.

[00:12:49] Speaker 02:
So their process is different.

[00:12:50] Speaker 02:
But in any event, their truncation, if you look at Figure 7 and read the description, clearly is a one-time truncation.

[00:12:59] Speaker 02:
There's no iterative steps in that.

[00:13:03] Speaker 03:
I know your time is running low.

[00:13:05] Speaker 03:
Can I just ask you one question about the challenge to the denial of discovery on real party and interest?

[00:13:15] Speaker 03:
Do you agree that if,

[00:13:18] Speaker 03:
we were to conclude that the board's invalidation, its unpatentability ruling, was to be affirmed.

[00:13:30] Speaker 03:
There would no longer be any possibility of a stopple or related doctrines making the real party in interest information immaterial.

[00:13:49] Speaker 03:
Yes, Your Honor.

[00:13:52] Speaker 01:
OK.

[00:13:52] Speaker 01:
You agree with that?

[00:13:53] Speaker 01:
I would have thought it would have worked as the appellant in your favor not having the real party and interests established.

[00:14:08] Speaker 02:
Well, we would like to find the real party in interest.

[00:14:11] Speaker 02:
And I understood your question to say.

[00:14:12] Speaker 03:
Once the patent is canceled.

[00:14:15] Speaker 03:
Right.

[00:14:16] Speaker 03:
I took your answer to me.

[00:14:17] Speaker 03:
It doesn't matter.

[00:14:18] Speaker 03:
It might have mattered before the patent is canceled because maybe you actually have an interest who's

[00:14:25] Speaker 03:
in knowing who's on the other side of the case.

[00:14:28] Speaker 03:
And as long as the patent is still in dispute, it might have a potential effect on who is going to be bound.

[00:14:38] Speaker 03:
So I was just asking the question, and I think you took it right, that if the patent is to be canceled on the assumption for the purposes of this question,

[00:14:50] Speaker 03:
that we affirm the board's final written decision on unpatentability, then it doesn't matter anymore.

[00:14:57] Speaker 02:
But just to be clear, the board didn't cancel claim.

[00:15:04] Speaker 03:
It's ministerial once the ruling is affirmed.

[00:15:10] Speaker 02:
See, I'm out of my time.

[00:15:11] Speaker 01:
No, it will save your time.

[00:15:17] Speaker 04:
Good morning.

[00:15:18] Speaker 04:
May it please the court?

[00:15:19] Speaker 04:
Debbie McComas on behalf of Unified Patents.

[00:15:23] Speaker 04:
Judge Raina, I think your point was well taken.

[00:15:25] Speaker 04:
This is really the classic substantial evidence case, where the board very clearly weighed the evidence, and they weighed it against biloxin in favor of Unified Patents.

[00:15:37] Speaker 04:
I want to cover just a few things.

[00:15:39] Speaker 04:
in response to my friend's argument, and specifically with respect to Schulhauser.

[00:15:45] Speaker 04:
Judge Toronto, you had it right.

[00:15:47] Speaker 04:
The Schulhauser analysis, in each instance where the board applied the obvious analysis, they recognized their Schulhauser approach, but then they said, it doesn't matter because we're going to find that it applies

[00:16:02] Speaker 04:
to that we find that Bertram discloses each limitation, even the conditional limitations, so we don't really have to go there.

[00:16:11] Speaker 04:
For help on that, there are specific sites.

[00:16:15] Speaker 04:
If the court needs them, for instance, at appendix 44, the board says this is a conditional step, which does not need to be shown in finding unpatentability nonetheless, we now address this limitation.

[00:16:29] Speaker 03:
Can I ask you about, I think, another point that I think Mr. Harra featured, at least as I understood it, which is focusing on claim three.

[00:16:39] Speaker 03:
There's a kind of do it more than once requirement, an iterative requirement.

[00:16:48] Speaker 03:
address that in its discussion of Claim Three.

[00:16:51] Speaker 03:
That's not in Claim One, right?

[00:16:53] Speaker 03:
Right.

[00:16:53] Speaker 03:
Right.

[00:16:54] Speaker 03:
That's Claim Three.

[00:16:54] Speaker 03:
So we're in the Claim Three discussion.

[00:16:56] Speaker 04:
I've been referring to it as the rinse and repeat.

[00:16:59] Speaker 04:
The what?

[00:16:59] Speaker 04:
I refer to it as the rinse and repeat limitation.

[00:17:02] Speaker 04:
Appendix 45 through 47 is where the board is addressing that.

[00:17:08] Speaker 04:
In the board's slides in support of that Greens Funds declaration,

[00:17:12] Speaker 04:
at Appendix 1804 that talks about specific- I'm sorry, first in the board's decision, what page?

[00:17:19] Speaker 04:
Yes, sir.

[00:17:20] Speaker 04:
Appendix 45 through 47.

[00:17:23] Speaker 03:
Right.

[00:17:23] Speaker 03:
So where is the specific discussion of iteration?

[00:17:28] Speaker 04:
At Appendix 46.

[00:17:31] Speaker 04:
And it's citing to Greens Fund's declaration.

[00:17:35] Speaker ?:
OK.

[00:17:36] Speaker 03:
OK, and then you were going to, I think, you were starting to take me to that.

[00:17:42] Speaker 04:
I was jumping ahead.

[00:17:44] Speaker 04:
Appendix 1804 is the portion of Philip Greenspan's declaration that talks about that.

[00:17:54] Speaker 04:
And he explains specifically, talking about limitation 3.5.3, he says, Bertram teaches comparing the reduced number of characters to the specified limit.

[00:18:05] Speaker 04:
specifically is noted at 3.5.2, so he's relating back to his prior discussion.

[00:18:11] Speaker 04:
Bertram teaches a loop at steps 172 through 192, 174 through 192, and 176 through 192 of Figure 7 to iteratively

[00:18:25] Speaker 04:
compare the number of characters to the set width and reduce the number of characters until the width of the column heading is less than or equal to the set width.

[00:18:34] Speaker 04:
And if it's helpful, we can go back to Figure 7.

[00:18:36] Speaker 03:
It's right on the next page.

[00:18:39] Speaker 03:
This is the 186-188 loop.

[00:18:44] Speaker 04:
I'm sorry?

[00:18:48] Speaker 04:
Thank you.

[00:18:49] Speaker 04:
Unless the court has any other questions, I'll yield my time.

[00:18:53] Speaker 03:
I'd like to ask you about the real party in interest.

[00:18:57] Speaker 03:
You don't think that it's important for a patent validity dispute, or infringement dispute for that matter, for a party to know who's on the other side?

[00:19:12] Speaker 04:
I don't think we get to that question in this case.

[00:19:15] Speaker 03:
Well, you may not if we affirm, but right now we still have a live patent, which means that there is a potential for later invocation of that patent, and therefore a potential for challenges to that patent.

[00:19:37] Speaker 03:
You don't think that the patent owner or

[00:19:40] Speaker 03:
in an infringement situation, the other side has an interest in knowing who's on the other side and therefore bound?

[00:19:47] Speaker 04:
The reason why I say it doesn't matter in this case

[00:19:50] Speaker 04:
is because VILOX expressly disclaimed any relevance of it to this case.

[00:19:55] Speaker 04:
And that was one of the bases for the board to decide we've had enough discovery.

[00:19:59] Speaker 04:
It's not that discovery was cut off entirely.

[00:20:02] Speaker 04:
They were given discovery.

[00:20:04] Speaker 04:
And they didn't raise this issue.

[00:20:05] Speaker 04:
This is an abuse of discretion issue on when discovery is enough.

[00:20:10] Speaker 04:
That's really what we're talking about here, not can we never have that discovery, can we never find that information.

[00:20:17] Speaker 04:
Here, it comes up for the first time at the oral hearing in the last few minutes of the oral hearing.

[00:20:24] Speaker 03:
Right, but my recollection, tell me if I'm wrong.

[00:20:25] Speaker 03:
I thought that the board, when denying discovery, though reciting in the background the fact that it was raised late, did not, in fact, state that as a reason, let alone an independently sufficient reason for denying it.

[00:20:44] Speaker 04:
They denied it in large part because they disclaimed it.

[00:20:51] Speaker 04:
And that is in the board's decision, that they said, look, in part, they've told me over and over that this doesn't impact my case here.

[00:21:01] Speaker 04:
And that's exactly what they said.

[00:21:03] Speaker 04:
We're not challenging.

[00:21:04] Speaker 03:
I mean, to say it doesn't affect the case here,

[00:21:09] Speaker 03:
is one thing, to say that it might have an impact if I win my case here on future cases.

[00:21:16] Speaker 03:
That's what the whole issue is.

[00:21:18] Speaker 03:
So they never said it has no potential for impact on matters going forward.

[00:21:25] Speaker 03:
Because of course it does.

[00:21:26] Speaker 03:
It affects whether there's an estoppel, or issue preclusion, or claim preclusion, or something like that.

[00:21:33] Speaker 04:
Well, here there's no time bar, right?

[00:21:34] Speaker 04:
So it doesn't apply.

[00:21:35] Speaker 04:
In this case, there's no harm.

[00:21:38] Speaker 03:
A time bar might affect this case.

[00:21:42] Speaker 03:
That, again, is not the point.

[00:21:45] Speaker 03:
The point is that even in an IPR that can go ahead, regardless of who the real party in interest is,

[00:21:54] Speaker 03:
The knowing who the real party in interest is can affect future possible litigation.

[00:22:04] Speaker 04:
And I'm not suggesting, Judge Toronto, that they couldn't seek that discovery in trial court.

[00:22:11] Speaker 03:
Why shouldn't they be able to seek it here?

[00:22:12] Speaker 03:
I thought there's discussion in various cases going on in the country.

[00:22:22] Speaker 03:
about how there's an actual interest in a particular case in finding out who the other side is for various reasons, not least that it might affect future cases?

[00:22:36] Speaker 04:
And they could have stopped that here.

[00:22:37] Speaker 04:
They could have asked for a discovery.

[00:22:38] Speaker 03:
I'm sorry.

[00:22:39] Speaker 03:
I thought that's what they did ask here.

[00:22:41] Speaker 03:
Put aside the timing point, because the board, I don't think, relied on it, and in any event didn't independently rely on it.

[00:22:48] Speaker 03:
I'm just trying to understand.

[00:22:50] Speaker 03:
You do seem to be saying, for unified patents, that a party in a patent case doesn't actually have an interest in finding out who's on the other side of the case.

[00:22:59] Speaker 04:
No, I'm not saying that.

[00:23:01] Speaker 04:
I'm saying there are procedures you follow.

[00:23:03] Speaker 04:
There's a time to raise these issues and raise these questions.

[00:23:07] Speaker 04:
And it's up to the board in its discretion to decide on a given case whether or not adequate discovery has been had.

[00:23:14] Speaker 01:
Yes, it's up to the board.

[00:23:15] Speaker 01:
But it's very hard to see how

[00:23:18] Speaker 01:
The prevailing party here, if you continue to prevail, could raise an estoppel in the district court.

[00:23:27] Speaker 01:
If similar issues arise, it looks to me as if you've waived that opportunity.

[00:23:34] Speaker 01:
And estoppel was critical to the structure of forming the PTAB and having these procedures.

[00:23:45] Speaker 04:
I don't think they would be foreclosed from raising estoppel, Judge Newman, or even challenges.

[00:23:50] Speaker 01:
Isn't that a very serious risk of being foreclosed?

[00:23:55] Speaker 01:
You may not think so, but actually, I would think so from the very structure of the statute.

[00:24:04] Speaker 04:
I'm not sure I'm quite following you, but I think

[00:24:07] Speaker 04:
I think what I'm saying is that the fact that they didn't seek the right discovery at the right time in this proceeding for the I.T.R.

[00:24:15] Speaker 01:
This is an administrative proceeding.

[00:24:17] Speaker 01:
The rules of issues being raised actually don't apply.

[00:24:26] Speaker 01:
What we're looking here for is information, reach the truth, understand the patents and what's involved, and resolve

[00:24:36] Speaker 01:
the issues between these parties.

[00:24:38] Speaker 01:
That's what the Whole America Invents Act is about.

[00:24:42] Speaker 01:
I'm refusing to say who the real party in interest is.

[00:24:47] Speaker 01:
It seems to me that having prevailed on that in this proceeding, through this appeal, does not leave the issue open to claim an estoppel in any subsequent proceeding.

[00:25:04] Speaker 01:
Doesn't that make sense?

[00:25:07] Speaker 04:
I'm not entirely sure I'm following you.

[00:25:09] Speaker 04:
I think the estoppel argument would be on Biloxi's side, unless I'm mistaken.

[00:25:13] Speaker 01:
The purpose of the real party and interest proceeding is for estoppel purposes.

[00:25:18] Speaker 01:
Do you agree with that?

[00:25:19] Speaker 04:
Yes, I do.

[00:25:22] Speaker 01:
So we don't tell them real party and interest, so there's no estoppel.

[00:25:26] Speaker 01:
Either way, the patent donor isn't estopped, and neither can the prevailing party claim an estoppel.

[00:25:34] Speaker 04:
I think what I'm saying is the fact that they didn't seek the right discovery here.

[00:25:39] Speaker 04:
And to be clear, there was discovery.

[00:25:42] Speaker 04:
They're just complaining belatedly that it wasn't good enough and there wasn't enough of it.

[00:25:47] Speaker 04:
So there was voluntary discovery provided by unified patents.

[00:25:52] Speaker 04:
And they had opportunity to come back and push for more and ask for more during the normal discovery process.

[00:25:58] Speaker 04:
They didn't do that.

[00:25:59] Speaker 04:
I would suggest, for your concern with respect to estoppel and whether or not they have the ability to raise estoppel in a subsequent case, if this patent weren't now expired and the other issues weren't there, they could still do that.

[00:26:14] Speaker 04:
They could still, in discovery in a district court case, seek the same information that they failed to seek here.

[00:26:20] Speaker 01:
Is there a requirement in the forms

[00:26:22] Speaker 01:
to state the real party in interest.

[00:26:25] Speaker 01:
Why should they have to take discoveries in order to require the party filling out the form to say the real party in interest?

[00:26:37] Speaker 04:
We did state our real party in interest.

[00:26:39] Speaker 04:
The real party in interest here was unified patents.

[00:26:41] Speaker 04:
We haven't changed our position on that.

[00:26:43] Speaker 04:
And we provided discovery that we felt like supported that.

[00:26:47] Speaker 01:
And you're saying that this then would or would not

[00:26:52] Speaker 01:
bar a real party in interest, a shareholder in unified patents, or however it works, a partner from claiming a stop-all.

[00:27:04] Speaker 04:
I would suggest to you that it's been unified's patent's position all along that unified's members are not real parties in interest.

[00:27:14] Speaker 04:
But I'm also suggesting to you to, I think, to address your concern of whether a patent owner would have the ability to address that

[00:27:22] Speaker 04:
or challenge that in the district court, I think that issue still exists.

[00:27:26] Speaker 01:
You know that that's coming up in several cases.

[00:27:29] Speaker 01:
Yes, ma'am.

[00:27:31] Speaker 01:
And the issue has certainly been joined in this case, it seems to me.

[00:27:37] Speaker 04:
I would suggest to you that it wasn't properly joined in this case.

[00:27:40] Speaker 04:
And that's probably not the right case to adjudicate that or have that issue, simply because the time to raise that

[00:27:48] Speaker 04:
was belated.

[00:27:49] Speaker 04:
They got discovery.

[00:27:51] Speaker 04:
They got the information they needed.

[00:27:53] Speaker 04:
If they wanted more, they could have asked for it at the right time and under the right circumstances.

[00:27:58] Speaker 04:
So in this proceeding,

[00:28:00] Speaker 04:
and in a case where they never challenged real party interests.

[00:28:05] Speaker 04:
They never made these assertions that you feel they should have made.

[00:28:09] Speaker 04:
This is not the right instance for that.

[00:28:12] Speaker 04:
If there is an instance where they believe factually that should change, they're not foreclosed from raising that in a district court proceeding.

[00:28:20] Speaker 04:
We would still submit that there is no room.

[00:28:24] Speaker 04:
substantively unified patents is the real party in interest and that's been adequately disclosed.

[00:28:33] Speaker 04:
If there's no further questions, I'll yield my time.

[00:28:36] Speaker 01:
Thank you.

[00:28:38] Speaker 01:
Council, you have your rebuttal time.

[00:28:40] Speaker 02:
Very briefly, Your Honors.

[00:28:43] Speaker 02:
Council for Unified was referring to figure seven steps 172 to 192 as showing iterative truncation.

[00:28:51] Speaker 02:
It shows iterative abbreviation.

[00:28:53] Speaker 02:
That's very clear.

[00:28:55] Speaker 02:
Truncation in steps 194 and 196.

[00:28:58] Speaker 02:
It's a one-time truncation.

[00:29:00] Speaker 02:
So whatever the expert, Dr. Greenspun, might have said was directed to the abbreviation being a looping process, which it is.

[00:29:12] Speaker 02:
We agree with that.

[00:29:14] Speaker 02:
But the truncation is not.

[00:29:19] Speaker 02:
Second thing I want to point out is that the whole question of application of Schulhauser

[00:29:24] Speaker 02:
The claim three is really something I believe the court should be reviewing de novo.

[00:29:31] Speaker 02:
failed to comply with its own precedence and failed to comply with admittedly later opinions of this court.

[00:29:41] Speaker 02:
But using the later opinions of this court, I think you can see that there is an issue for de novo review by this panel.

[00:29:56] Speaker 02:
Since you brought up this issue of discovery,

[00:30:01] Speaker 02:
VILOX never disclaimed discovery.

[00:30:04] Speaker 02:
I was asked at the oral hearing if the discovery request that we wanted, the additional discovery request we wanted, was granted.

[00:30:18] Speaker 02:
Would that somehow or another affect the board's ability to come to a decision?

[00:30:24] Speaker 02:
And I said no.

[00:30:25] Speaker 02:
You're going to make your decision one way or the other.

[00:30:28] Speaker 02:
We just want the discovery because we want to know who the real party of interest is.

[00:30:34] Speaker 02:
Now, as to the action discovery, we asked for it late because applications and internet time issued during the course of our briefings in discovery, other type of discovery.

[00:30:47] Speaker 02:
We brought that issue up with Council for Unified and said we'd like some discovery.

[00:30:53] Speaker 02:
Unified said, and this is all in the briefs, Unified said, we'll give you discovery, but we want to make it voluntary.

[00:31:02] Speaker 02:
Please hold off.

[00:31:02] Speaker 02:
We held off.

[00:31:04] Speaker 02:
We gave them specific requests, document production, interrogatories, and everything.

[00:31:10] Speaker 02:
What we got was a canned discovery request that Unified provides to anybody who wants discovery.

[00:31:19] Speaker 02:
This was supposed to be under seal.

[00:31:21] Speaker 02:
The documents weren't even classified or marked as being subject to an order.

[00:31:28] Speaker 02:
And we discovered that, or Unified discovered that to their displeasure during the oral hearing.

[00:31:35] Speaker 02:
So the discovery was non-responsive.

[00:31:38] Speaker 02:
We tried to get more.

[00:31:39] Speaker 02:
We didn't get more.

[00:31:40] Speaker 02:
And I think Unified's characterization of that whole issue is not correct.

[00:31:49] Speaker 01:
Anything else?

[00:31:50] Speaker 01:
Our thanks to both counsels.

[00:31:52] Speaker 01:
The case is seconded on this admission.