[00:00:00] Speaker 06:
at number 24-1381, ethanol boosting systems versus Ford Motor Company.

[00:00:06] Speaker 06:
Mr. Siegel?

[00:00:16] Speaker 03:
Good morning, Your Honors, and may it please the Court, Steven Siegel, for Ellen's ethanol boosting systems and MIT.

[00:00:22] Speaker 03:
Today I will address the threshold issue of the board's stay and then move on to the claim construction question.

[00:00:29] Speaker 03:
Beginning with the stay, the Patent Office is a creature of statute whose authority to act ultimately must be grounded in an express grant of authority from Congress.

[00:00:38] Speaker 03:
In the America Invents Act, Congress granted the Patent Office only narrow stay authority, as specified in 35 U.S.C.

[00:00:45] Speaker 03:
Section 315D.

[00:00:48] Speaker 03:
Congress did not grant the Patent Office general stay authority, nor the specific authority to indefinitely hold in abeyance

[00:00:54] Speaker 03:
party's rehearing petition pending the outcome of pending litigation in our Article III courts.

[00:00:59] Speaker 06:
So is there a certain time period that you demand the PTO to decide a rehearing request from denial of an institution?

[00:01:10] Speaker 03:
There is case law that addresses the question of how long an agency must act, generally speaking, within a reasonable amount of time.

[00:01:20] Speaker 03:
But this is a slightly separate question because what the Board did here was not an invocation of its reconsideration or rehearing authority, it was an invocation of its stay authority.

[00:01:29] Speaker 03:
What the Board did was say, we see the need or we see the desire for holding the proceedings in abeyance,

[00:01:36] Speaker 03:
pending an occurrence in some other proceeding in Article III courts.

[00:01:41] Speaker 03:
And once that happens, then we will reconsider.

[00:01:44] Speaker 03:
Then we will exercise our reconsideration authority.

[00:01:46] Speaker 03:
So it's a distinct exercise of power than the question of how long an agency has to act on a rehearing petition.

[00:01:54] Speaker 03:
So although Tokyo, Kikai, and Hekmati versus United States

[00:01:58] Speaker 03:
and Cooley versus United States all describe the general rules about what is a reasonable amount of time for an agency to undertake its reconsideration.

[00:02:07] Speaker 03:
That is not exactly at issue here because what the board did was fundamentally distinct from taking too long to act on a rehearing petition.

[00:02:17] Speaker 06:
I guess what I'm trying to understand is why wasn't this just a sensible act by the agency

[00:02:28] Speaker 06:
to wait for very, very relevant information to come out of a parallel proceeding, i.e.

[00:02:36] Speaker 06:
this court, which would be really pivotal to deciding whether or not there was a meritorious IPR petition here.

[00:02:47] Speaker 03:
It may have been sensible, but the board had no authority to do it.

[00:02:55] Speaker 03:
the sort of fundamental preset that issue here is that the board as a creature of statute must act pursuant to some express or implicit grant of authority from Congress.

[00:03:05] Speaker 03:
And here there is neither any express or implicit grant of authority.

[00:03:09] Speaker 03:
So when we speak about an agency's inherent reconsideration authority, we're not talking about some constitutionally inherent authority like courts have in Article III from the existence of Article III of the Constitution.

[00:03:20] Speaker 03:
What we're talking about is does the board or does the Patent Office have

[00:03:24] Speaker 03:
the authority to do what it did here, and it did not.

[00:03:28] Speaker 05:
It certainly had the authority to reconsider its institution decision, right?

[00:03:31] Speaker 03:
That's right, Your Honor.

[00:03:32] Speaker 05:
And if it had instituted it and said, look, it looks like there might be a different claim construction, we're going to reinstitute.

[00:03:39] Speaker 05:
And then they said, we're going to wait and see.

[00:03:41] Speaker 05:
I assume your argument is that they're bound by a statutory time limit once they've done an institute, right?

[00:03:48] Speaker 05:
Once you know once they've instituted they're bound by a statutory time well what if during you know towards the end of that time period The Federal Circuit comes out with a new claim construction.

[00:03:58] Speaker 05:
They say we're gonna reconsider this all again would that have all been okay?

[00:04:02] Speaker 05:
That would have been fine so in essence They could do what they wanted to what they did here.

[00:04:08] Speaker 05:
They just had to jump through different hoops.

[00:04:12] Speaker 03:
I Don't think that's exactly right what what happened here was at the time that Ford raised its rehearing petition

[00:04:18] Speaker 03:
It did not actually have a basis for reconsideration that the board intended to act on.

[00:04:22] Speaker 03:
There was no factual basis or specific facts from which a reconsideration.

[00:04:27] Speaker 05:
The district court's decision not yet been appealed?

[00:04:30] Speaker 03:
The district court's decision had been appealed.

[00:04:33] Speaker 05:
Why isn't that a pretty good indication that there could be a new climate construction coming down the pike?

[00:04:37] Speaker 03:
I don't think the board was wrong to suspect that there might be a new claim construction that would come down.

[00:04:42] Speaker 03:
But fundamentally what it cannot do and what it would create a loophole or let's just say a relatively unbounded set of authority for the board to say at any point in time where there's parallel proceedings and we believe it might be sensible to wait.

[00:04:58] Speaker 05:
I mean the answer is that

[00:05:00] Speaker 05:
You know, sometimes the parallel proceedings are said in the district court waiting on the outcome of the IPR.

[00:05:07] Speaker 05:
Why isn't the same thing going to happen here?

[00:05:10] Speaker 05:
You're saying that the PTO doesn't have any authority, but I don't see anything that says they don't have the authority to reconsider and to wait until a contingent event happens until they make that decision to reconsider.

[00:05:26] Speaker 03:
I think, let me step back and

[00:05:29] Speaker 03:
We, of course, cited Ethicon versus Quig in our papers, and I think it provides a useful framework for thinking about this issue in a similar context.

[00:05:39] Speaker 05:
In that instance where there was a request... Well, we're going to start with the notion that the board certainly has the power to reconsider its institution decisions.

[00:05:46] Speaker 05:
You agreed with that.

[00:05:47] Speaker 03:
I do, Your Honor.

[00:05:47] Speaker 05:
Tell me, where in the statute does it say it doesn't have the power to gather further information before it makes that reconsideration decision?

[00:05:57] Speaker 03:
It certainly has the power to gather more information if there was a factual basis that said at present there is a basis to reconsider.

[00:06:04] Speaker 01:
There's no statutory limitation on how the board, the manner in which it goes about reconsidering.

[00:06:12] Speaker 03:
That's right, Your Honor.

[00:06:13] Speaker 01:
What this issue is, the manner, here they chose to hold something in advance, right?

[00:06:17] Speaker 01:
I think that... Why don't they have the inherent authority?

[00:06:20] Speaker 01:
For example, say the board in considering the reconsideration motion decides when it's going to do that.

[00:06:28] Speaker 01:
It decides what information it needs to do that.

[00:06:33] Speaker 01:
And clearly they have the inherent authority to decide what information they need, correct?

[00:06:39] Speaker 03:
They have both the inherent and the expressed authority.

[00:06:41] Speaker 01:
Yes, they have.

[00:06:43] Speaker 01:
So why doesn't that cover the manner in which they choose to consider and decide a reconsideration motion?

[00:06:51] Speaker 03:
Because in this instance, what has happened is the manner in which they've chosen to exercise their authority was to say, we are going to pause proceedings indefinitely.

[00:07:00] Speaker 01:
I understand that.

[00:07:01] Speaker 01:
And you raised earlier, I thought you were starting off by saying the only question here is whether they took a reasonable period of time.

[00:07:09] Speaker 01:
Are you agreeing that they have the inherent authority to manage the manner in which

[00:07:16] Speaker 01:
They decide the manner in which they're going to treat and decide the reconsideration motion.

[00:07:22] Speaker 03:
At a general level, I do agree with you, Your Honor.

[00:07:26] Speaker 01:
That they have that inherent authority.

[00:07:28] Speaker 03:
I wouldn't say that it's inherent authority.

[00:07:30] Speaker 03:
I would refer to it as statutorily implicit authority.

[00:07:33] Speaker 03:
But the distinction that I'm drawing is between

[00:07:36] Speaker 03:
the statutorily implicit authority to manage reconsideration in terms of gathering additional information, exercising the power reconsideration.

[00:07:45] Speaker 01:
You're not making an ethicon quig type argument that there's no inherent authority at all?

[00:07:50] Speaker 03:
I am making an ethicon versus quig argument that there is no inherent stay authority.

[00:07:55] Speaker 03:
So what I'm trying to carve a distinction between is when an agency... Well, does that mean the question here is whether this is or is not a stay?

[00:08:03] Speaker 01:
Nobody said stay.

[00:08:06] Speaker 03:
That's not quite right, Your Honor.

[00:08:08] Speaker 01:
What did it ask for?

[00:08:08] Speaker 01:
Did it ask for stay?

[00:08:09] Speaker 01:
It asked for it to be held in abeyance, right?

[00:08:12] Speaker 03:
Your Honor, that's not exactly right.

[00:08:14] Speaker 03:
So if you return to appendix 553, which is Ford's reconsideration petition, it says in the first paragraph, the board has a way to eliminate prejudice to petitioner, promote efficiency, and promote the interests of justice, I think was what they meant to say.

[00:08:31] Speaker 03:
a stay of its decision on rehearing.

[00:08:34] Speaker 03:
So Ford expressly asked for a stay.

[00:08:36] Speaker 03:
That's the language he used.

[00:08:37] Speaker 01:
When I read Ford's request, the only place stay came up was in the last sentence on the last page.

[00:08:46] Speaker 01:
They consistently asked for being held in abeyance.

[00:08:50] Speaker 03:
I'm not sure that I see a distinction between those, but I do say that Ford did ask for a stay, and the board granted it.

[00:09:00] Speaker 01:
If you look at your word search for stay, the only place you find stay is on page 554?

[00:09:06] Speaker 01:
Yes, Your Honor, I think that's the passage I just... Where the board said in the alternative, the board can institute review and stay the deadlines.

[00:09:17] Speaker 01:
Now, I don't quite know what they had in mind when they said that, but that is not board asking for a stay.

[00:09:24] Speaker 03:
Your Honor, actually, if you turn to the previous page on appendix 553,

[00:09:30] Speaker 03:
The first the first full paragraph the third sentence is when they request a stay of its decision on rehearing So is I mean isn't this all Prevented from our review by the reviewing institution

[00:09:54] Speaker 03:
No, Your Honor, it's not.

[00:09:56] Speaker 05:
What we are asking this Court to review is... If you win, what are you going to ask us to tell the Board to do?

[00:10:02] Speaker 05:
To the Institute, right?

[00:10:04] Speaker 03:
What we have asked the board to do, or this court to instruct the board, well, to vacate the stay and all decisions that flow from the stay, which includes the institution decision and the final decision.

[00:10:15] Speaker 05:
Right, you want us to be institute.

[00:10:16] Speaker 05:
We can't do that.

[00:10:18] Speaker 03:
We haven't expressly asked.

[00:10:19] Speaker 05:
Well, the problem is, if this court... We may not have expressly asked for it, but that's the only relief that will help you.

[00:10:26] Speaker 05:
Right, but... If we actually get to the merits, because we can't review the institution decision, then you have to argue on the merits.

[00:10:33] Speaker 03:
That's correct, Your Honor.

[00:10:34] Speaker 05:
But I don't understand why this isn't barred by click to call.

[00:10:40] Speaker 03:
So the reason that it's not is because if this, as we have requested a non caprotute remedy, which is to say vacating the stay at the time it occurred and all subsequent decisions.

[00:10:50] Speaker 05:
All that related to the decision to reconsider the denial of institution and then to institute, all wrapped up in institution, which you agree we can't review.

[00:11:00] Speaker 03:
I agree with this court.

[00:11:02] Speaker 05:
We held in other cases that things like the estoppel bar and the time bar can't be reviewed in the context of an institution decision.

[00:11:10] Speaker 05:
And those also go to the board statutory authority.

[00:11:13] Speaker 05:
So what's the difference between this case and all those cases?

[00:11:16] Speaker 03:
So what's different is, as this court articulated in Apple versus Vidal,

[00:11:21] Speaker 03:
What prevents reviewability by this court is something that is inherent in an institution decision.

[00:11:27] Speaker 03:
A stay, the decision whether to stay proceedings or not, is never going to be inherent.

[00:11:33] Speaker 05:
I think you're setting the wrong standard.

[00:11:35] Speaker 05:
Some of our old cases used to say that it had to be something that was inherent in the decision of whether to institute decision.

[00:11:42] Speaker 05:
And so we couldn't review the questions on the merits about that.

[00:11:48] Speaker 05:
But Click to Call went far beyond that and said anything tied up with the institution decision is barred from our review.

[00:11:56] Speaker 03:
So I think if, as we have requested, there is this vacater of the stay and all the decisions from it, I think what our position is that

[00:12:05] Speaker 03:
at the time that it would go back to the board for remand, there is nothing that the board can act on at that point.

[00:12:11] Speaker 05:
You're putting the cart before the horse.

[00:12:15] Speaker 05:
We have to get out of the bar before we can review the decision to reconsider the institution decision after the stay.

[00:12:28] Speaker 03:
Right.

[00:12:29] Speaker 03:
I think what I'm trying to articulate, and I think in Apple versus Vidal, which I believe came after Click to Call, is that, yeah.

[00:12:38] Speaker 05:
What did we say we could review in Apple versus Vidal that's different than this case, or that's the same as this case?

[00:12:46] Speaker 03:
Well, there's nothing that's the same as this case.

[00:12:48] Speaker 03:
This is the first time that this issue has appeared.

[00:12:50] Speaker 03:
But what the language was used in Apple was that,

[00:12:54] Speaker 03:
The fact that a holding may have a collateral effect on institution does not mean... What holding was in Apple that we decided we could review?

[00:13:02] Speaker 03:
Well, it was not reviewable in Apple.

[00:13:06] Speaker 05:
But that was the contents of the... You're just citing language that doesn't show anything.

[00:13:10] Speaker 05:
I mean, this is precisely the kind of legal challenge to an institution decision that clicked a call bars.

[00:13:25] Speaker 03:
I respectfully disagree, Your Honor, but I'm going to briefly turn to claim construction with the remainder of my time.

[00:13:30] Speaker 03:
The board adopted a claim construction that no party or tribunal has determined is substantively correct, not the parties, not the district court, not the board.

[00:13:38] Speaker 03:
And adopting that construction, the board erred in two independent ways.

[00:13:42] Speaker 03:
First was not undertaking any substantive claim construction analysis at all, which is required by 42100.

[00:13:47] Speaker 03:
And the second was basing its decision on a rationale that is not cognizable.

[00:13:53] Speaker 06:
What if, hypothetically,

[00:13:55] Speaker 06:
we read neither the petition nor the preliminary patent owner response as asking the board to undertake a Phillips-style claim construction analysis.

[00:14:11] Speaker 03:
I don't think that that makes a difference here.

[00:14:14] Speaker 06:
Under circumstances like that, it wouldn't be wrong for the board to just say, well, we're just going to go with a plain and ordinary meaning type approach for that particular claim limitation.

[00:14:24] Speaker 03:
I don't think that's exactly what happened here.

[00:14:26] Speaker 03:
The patent owner put before the board its proposed construction at appendix 729.

[00:14:31] Speaker 03:
It also put before the board the district court's reasoning in support of that construction, which was exhibit 2002.

[00:14:37] Speaker 06:
What if it looked like to the board that the patent owner was simply arguing that there is a claim construction that occurred for an anti-knock agent that is controlling law.

[00:14:49] Speaker 06:
And so you, as a legal matter board, are bound by it.

[00:14:54] Speaker 06:
And then if the board disagreed with that and had good grounds to disagree with that legal argument, then did the board really need to go any further?

[00:15:04] Speaker 03:
The board did need to go further.

[00:15:05] Speaker 03:
The board found it necessary in this decision on Appendix 9.

[00:15:08] Speaker 03:
It said the construction of these terms was necessary to our decision, the substantive obviousness determination.

[00:15:14] Speaker 03:
And so, whether it agreed with the party's constructions or not, it determined that this was dispositive of the petition.

[00:15:20] Speaker 03:
It had to assure itself that its reasoning in support of whatever construction it adopted was correct, and it did not.

[00:15:27] Speaker 03:
So the concern here is that even if we strip away the question of whether we asked for a Phillips-style construction, the board had an affirmative obligation to assure itself that the construction it used was correct, and its rationale in support of that was also correct.

[00:15:41] Speaker 03:
And here, it was wrong on both counts, and for two reasons.

[00:15:45] Speaker 03:
One, the board erroneously believed that this court had vacated the district court's construction.

[00:15:49] Speaker 03:
It had not.

[00:15:50] Speaker 03:
The board previously, in its institution decision, believed that it was bound by the district court's construction.

[00:15:56] Speaker 03:
And so it said, we defer to that construction because we believe that that is what must govern our proceedings.

[00:16:02] Speaker 03:
And that's what led to the initial denial of institution.

[00:16:05] Speaker 03:
When it came back after the rehearing decision, it did not follow that same rule.

[00:16:13] Speaker 03:
It said, we believe that the district court's construction had been vacated.

[00:16:16] Speaker 03:
And it was not vacated.

[00:16:17] Speaker 06:
So what is the relief that you want?

[00:16:20] Speaker 06:
You want this to go?

[00:16:22] Speaker 06:
At least for this particular issue, you want this to go back to the board to engage in a Phillips-style claim construction?

[00:16:28] Speaker 03:
At a minimum, the final written decision must be vacated, although our view is that reversal is correct here, because Ford did not present any obviousness argument or grounds for petition on the basis that

[00:16:41] Speaker 03:
The cited prior art disclosed the direct injection of a fuel that contains an anti-NOC agent that is not gasoline.

[00:16:48] Speaker 06:
There is a gasoline-only embodiment in the patent, is there not?

[00:16:54] Speaker 03:
No, that's not correct, Your Honor.

[00:16:55] Speaker 06:
I thought that's what you told us the last time.

[00:16:58] Speaker 06:
We had an oral argument in this case.

[00:17:00] Speaker 03:
There is an ethanol-only construction of the patent.

[00:17:03] Speaker 06:
Right, but then column 12.

[00:17:05] Speaker 06:
You were asked about a gasoline-only embodiment.

[00:17:07] Speaker 06:
And I believe I was listening to your oral argument.

[00:17:10] Speaker 03:
Oh, I'm sorry.

[00:17:10] Speaker 03:
I think that's the limp home mode embodiment that exists.

[00:17:13] Speaker 03:
And that may be true.

[00:17:14] Speaker 03:
Yes.

[00:17:14] Speaker 03:
I'm sorry.

[00:17:15] Speaker 03:
I forgot, Your Honor.

[00:17:17] Speaker 06:
Right.

[00:17:17] Speaker 06:
And I believe in your briefing during the last appeal to this court,

[00:17:22] Speaker 06:
Your briefing indicated that the patent contemplates that Table 3 includes gasoline as a possible anti-NOC agent and that any fuel counts as an anti-NOC agent and that gasoline is a fuel.

[00:17:42] Speaker 03:
I'm sorry, Your Honor, is this in the EBS 1, the initial appeal, or the second?

[00:17:46] Speaker 06:
This is the 2022 appeal.

[00:17:47] Speaker 06:
The 2022 appeal.

[00:17:48] Speaker 06:
And the red brief at page 4 cites and quotes these passages from the briefing of the last appeal from EBS.

[00:17:59] Speaker 06:
So isn't that all correct to say that

[00:18:02] Speaker 06:
In other words, the patent, just as it contemplates same fuel, because there was the same fuel embodiment in the patent, likewise, it contemplates gasoline as being an anti-NOC agent, because there's a gasoline-only embodiment, and it's also been presented to this court that gasoline is an anti-NOC agent.

[00:18:25] Speaker 03:
The board would be within its rights to determine,

[00:18:30] Speaker 03:
be permissible for the board to construe the terms and say this is what we understand based on the construction we adopt.

[00:18:36] Speaker 03:
We understand that included within a construction that says, let's say it adopted a construction that says it must contain a fuel that contains an anti-NOC agent that is not gasoline.

[00:18:46] Speaker 03:
The board, I suppose in theory, could say that we determine that we

[00:18:51] Speaker 03:
That requirement is not necessary.

[00:18:54] Speaker 03:
The board is free to adopt whatever construction it believes is correct, although we believe in this case that would not be permissible based on the arguments that have been advanced by Ford in this case and the specification.

[00:19:07] Speaker 01:
If the evidence, if you will, or the information that the presiding judge is talking about is in the spec,

[00:19:17] Speaker 01:
then on remand, presumably the board could point to that and say, we agree that the Ananak agent doesn't have to be gasoline, other than gasoline.

[00:19:30] Speaker 01:
So why wouldn't it be harmless air?

[00:19:33] Speaker 03:
In theory, the board could.

[00:19:34] Speaker 01:
The problem here, as I understand what you're saying, is that the board didn't articulate why it reached the conclusion on the Ananak agent.

[00:19:44] Speaker 01:
It didn't say it in its opinion.

[00:19:45] Speaker 01:
It just said, that's what it is.

[00:19:48] Speaker 03:
It that's not quite right.

[00:19:50] Speaker 03:
I think what what what we're arguing is that the board that it's substantive basis, the construction itself was wrong and it's articulation.

[00:20:01] Speaker 01:
This is all intrinsic evidence.

[00:20:03] Speaker 01:
There's no there's no fact here.

[00:20:06] Speaker 01:
So why can't we look at the record?

[00:20:09] Speaker 01:
this court is permitted information that's been on the table here and say well you know we agree as a matter of law that that does sustain the decision of the board as to what the inoculation is this court is of course under de novo review permitted to construe the claim terms my point is I mean isn't that now really the issue for us to decide whether or not that board's decision on articulated in its opinion

[00:20:36] Speaker 01:
was correct and therefore the failure to articulate in this particular case is harmless error.

[00:20:43] Speaker 03:
If the board's construction, if this court deems the board's construction to be substantively correct, then we have no basis to request remand and vacater on that, on the basis of an erroneous construction.

[00:20:57] Speaker 03:
I see I'm well into my rebuttal time.

[00:20:59] Speaker 06:
We'll do what we can to give you a little rebuttal time.

[00:21:03] Speaker 06:
Let's hear from the other side.

[00:21:12] Speaker 02:
May it please the court.

[00:21:13] Speaker 02:
I'd like to note at the start that I'm splitting time with counsel for the United States Patent and Trademark Office who's reserved two minutes.

[00:21:20] Speaker 02:
I'd like to start with the first issue that Council for EBS raised today regarding the board's authority to institute.

[00:21:26] Speaker 02:
As Your Honors recognize, the board had both inherent and statutory authority to reconsider its decisions in the manner that it did.

[00:21:34] Speaker 02:
And I would also note to Judge Clevenger's question about the requested relief that Ford had, and point out that Your Honor is correct, at APPX 554,

[00:21:45] Speaker 02:
The board requested that the board hold its rehearing decisions in abeyance in the alternative to another suggested form of relief, which is, quote, the board can institute review and stay the deadlines until the Federal Circuit issues its decision, end quote.

[00:22:01] Speaker 01:
You're right that I overlooked on page 553 the word stay in line three of the final paragraph.

[00:22:11] Speaker 01:
You did use the word stay in addition to the word advance.

[00:22:17] Speaker 02:
That is true, Your Honor.

[00:22:18] Speaker 01:
The request, I was correct, over on page 554, that that reference to stay is not talking about the same thing.

[00:22:27] Speaker 02:
That's correct your honor and what the board chose to do here is to hold its decision in abeyance and that's notable because at the time that it the status quo at that time was that the institution of the proceedings had been denied.

[00:22:40] Speaker 02:
There were no proceedings that were ongoing to which which should be stayed.

[00:22:45] Speaker 02:
And that distinction is demonstrated by the fact that there was no proceeding that was ongoing.

[00:22:51] Speaker 02:
And this is not a circumstance where Section 315B applies.

[00:22:55] Speaker 01:
Would you agree that if you had formally requested a formal stay, there would be an authority issue based on ethical and CAID, QUIG, other matters?

[00:23:06] Speaker 02:
Your Honor, if the board had an instituted review that it stayed and paused proceedings, that would be a different circumstance, and that could present an issue with its authority.

[00:23:16] Speaker 01:
However, in a case where... If what happens up here, if the board instead had said in answer to the request for reconsideration, we stay this proceeding.

[00:23:32] Speaker 01:
Your Honor, that hypothetically, as you already said, we stay this proceeding pending further notification.

[00:23:38] Speaker 02:
Your honor, that hypothetical would turn on whether or not the board instituted review before issuing that decision.

[00:23:44] Speaker 02:
I think the statutory timelines governing IPRs put limits on what the board can do with respect to timeliness on instituted decisions, as well as the time to issue a decision on institution.

[00:23:57] Speaker 02:
But in the circumstance, as here, where institution had been denied,

[00:24:02] Speaker 02:
The board was free to reconsider its decision in accordance with its inherent statutory authority, and it has the time, the reasonable time to do that, and that's the time that it took in this instance.

[00:24:19] Speaker 02:
The board has the explicit statutory authority to reconsider and rehear its decisions.

[00:24:27] Speaker 02:
Yes, Your Honor.

[00:24:28] Speaker 06:
What's the best case decision that you have?

[00:24:31] Speaker 06:
that says that the agency has this particular authority, whether you want to call it implicit statutory authority or inherent authority, to sit on a pending motion request for a hearing.

[00:24:48] Speaker 02:
this court's decision in Tsai Wee versus Google, Your Honor.

[00:24:51] Speaker 02:
In that case, the Federal Circuit was considering a circumstance where the board took longer than a stat beyond the statutory time period to determine director review.

[00:25:02] Speaker 02:
And this court wrote in that decision, the statutory provision setting specific deadlines for institution decisions and final written decisions say nothing of deadlines for any further director review.

[00:25:13] Speaker 02:
of those decisions.

[00:25:15] Speaker 02:
Now that concerned director review rather than rehearing.

[00:25:19] Speaker 02:
We submit to this court that there is no difference with respect to the fact that in both instances the board is not prescribed by Congress a specific time to act on director review or on rehearing.

[00:25:31] Speaker 06:
Can you remind me a little bit more of the facts of PsyWii?

[00:25:34] Speaker 06:
Like what happened there was say the patent owner trying to terminate

[00:25:40] Speaker 06:
an IPR proceeding on account of the agency taking too long?

[00:25:46] Speaker 02:
Your Honor, my recollection of Tsai Wee versus Google is that the appellant had argued that the director review had to be conducted and completed within the time frame of the board's statutory final written decision deadline.

[00:26:00] Speaker 02:
And I believe that this court held that the director review timeline is not prescribed by the

[00:26:06] Speaker 02:
statutory deadlines for final written decisions.

[00:26:10] Speaker 02:
Put another way, the board and the director have the discretion to take the appropriate time that they need to reconsider or rehear their decisions.

[00:26:20] Speaker 02:
And if I may I'd like to turn briefly to the claim construction issue if there are no further questions.

[00:26:26] Speaker 06:
Could the board sit on a rehearing request for two, three, four years?

[00:26:33] Speaker 06:
Because in your view, the agency has some kind of inherent authority to do that?

[00:26:39] Speaker 02:
The cases like Hekmati explain that the Administrative Procedure Act looks for a reasonableness time frame that is highly fact-specific.

[00:26:50] Speaker 02:
And so the facts would very much dictate whether or not that would be appropriate.

[00:26:54] Speaker 02:
But whereas here, there was an already pending appeal

[00:26:58] Speaker 02:
on a purely legal issue that was directly controlling to the board and also the linchpin of the institution decision that was being timely reheard moved for rehearing by the petitioner.

[00:27:09] Speaker 02:
In that circumstance the board's actions were reasonable for doing what it did here to hold its decision in abeyance for the Federal Circuit to speak on that legal issue.

[00:27:20] Speaker 01:
One other point, if we disagree with you on the authority issue,

[00:27:25] Speaker 01:
and concluded that there is no inherent authority, clear statutory authority, or inherent authority to have the abeyance or the stay, then is the act of what they did a shenanigan under Cuozzo?

[00:27:45] Speaker 02:
No, Your Honor, I don't believe that this would rise to the level of, quote, so shenanigans.

[00:27:52] Speaker 01:
Would it be a violation of law?

[00:27:54] Speaker 02:
I don't believe it would be a violation of law.

[00:27:57] Speaker 02:
In the circumstance that you've suggested in your question, Your Honor, it would be the board interpreting its statutory rules and its regulations and coming to a conclusion that was ultimately found to be unreasonable in that circumstance.

[00:28:11] Speaker 02:
But that wouldn't rise to the level of a violation of law or a shenanigan that deprives a patent owner of due process rights.

[00:28:20] Speaker 02:
And so for those reasons, the quote so shenanigans circumstance, we would argue does not apply to what the board did here.

[00:28:28] Speaker 06:
Did you speak to the review ability question?

[00:28:31] Speaker 06:
I don't recall.

[00:28:32] Speaker 02:
With respect to the review ability question, we do submit and that

[00:28:37] Speaker 02:
And as this court signaled in its mandamus decision, 35 USC 314D does bar EBS's challenge altogether.

[00:28:45] Speaker 05:
It is a closely tied, if not directed... He didn't start with that since that gets rid of a main part of their case altogether about whether there's authority or not.

[00:28:56] Speaker 02:
Yes, Your Honor, you're right.

[00:28:57] Speaker 02:
It's a threshold issue and it should be the first issue that this court should determine.

[00:29:03] Speaker 02:
But at bottom, 314D does bar EBS's attack on the

[00:29:08] Speaker 06:
This particular issue is not one of the statutes or regulations that need to be applied that are bound up to the question of whether or not a petition ought to be granted right this is more a question of whether the agency has this other authority to hold on to Hold back on making a decision on a request for a hearing and

[00:29:36] Speaker 02:
Your Honor, we would submit that this is directly bearing on the board's determination of whether to institute review and the manner in which it decides to institute review.

[00:29:46] Speaker 02:
As noted earlier, at the time of the rehearing request, there was a pending active Federal Circuit appeal on a legal issue that would bind the board.

[00:29:53] Speaker 02:
On the very claim construction determination that the board held was the reason that prevented institution.

[00:30:00] Speaker 02:
And so this is a decision in which the board is

[00:30:04] Speaker 02:
This is a circumstance where the board is issuing an institution decision, and the manner in which it went about doing that is what EBS's challenge attacks.

[00:30:12] Speaker 02:
And for that reason, Section 314D would bar the appeal.

[00:30:17] Speaker 02:
Turning to the claim construction issue,

[00:30:20] Speaker 02:
I would just like to note that as Judge Clevenger pointed out and Judge Chen pointing out, in the EBS 2 appeal, EBS submitted to this court that there was a gasoline-only embodiment and referred to that as a claimed embodiment at APPX 13278.

[00:30:39] Speaker 02:
And the argument there was that the district court's dual fuels construction at issue in the second appeal would read out this 100% gasoline embodiment.

[00:30:49] Speaker 02:
And for that reason, EBS submitted to this court that the patents do not place a type of limit on the type of fuels that can be used.

[00:30:57] Speaker 06:
And they also... There was the 100% ethanol embodiment they were afraid was getting.

[00:31:04] Speaker 06:
Excluded by the district court's construction.

[00:31:07] Speaker 06:
You just said hundred percent gasoline embodiment

[00:31:11] Speaker 02:
Yes, your honor.

[00:31:12] Speaker 02:
So the specification details a 100% ethanol and a 100% gasoline disclosure.

[00:31:19] Speaker 02:
The district court issued its claim construction in the second case looking to both of those portions of the specification and supported its dual fuels construction with both aspects of the specification.

[00:31:32] Speaker 02:
Now on appeal, EBS continued to point to both of those aspects of the specification in its briefing.

[00:31:38] Speaker 02:
and its opening brief and its reply brief and in colloquy before this panel of this court about what these patents were directed to now the holding in 2022 focused on the 100 word engines being accused of infringement in those in that case 100 ethanol engines

[00:32:00] Speaker 02:
Your Honor, the engines that are accused for Ford engines, they are Ford's EcoBoost engines that run on gasoline that you can get at a pump throughout the United States.

[00:32:10] Speaker 05:
I guess what I'm asking is, if what, and it appears to be what is the gist of all the arguments from the other side now, is that 100%, when we went and said it could be all one fuel and Ford too,

[00:32:26] Speaker 05:
that only meant the ethanol embodiment, not the all gas embodiment.

[00:32:32] Speaker 05:
But if that's the case, there wouldn't have been an appeal with there, because your engines weren't 100% ethanol.

[00:32:39] Speaker 05:
So who cares if the construction, the broader construction they got was 100% ethanol, because you still wouldn't have infringed.

[00:32:49] Speaker 02:
And this, Your Honor, you hit on a key point that never- I'm just trying to figure, because look,

[00:32:55] Speaker 05:
Every, all of you play this game all the time.

[00:32:59] Speaker 05:
The plaintiffs want a broad construction in the infringement case and a narrow construction in the unpatentability case.

[00:33:07] Speaker 05:
And the defendants want the reverse.

[00:33:09] Speaker 05:
In this case, they got, you got a narrow construction from the district court.

[00:33:15] Speaker 05:
They got it vacated and got a much broader one that said it can be a single fuel system.

[00:33:21] Speaker 05:
But if their point had been just to get a single fuel ethanol system, the appeal would have been pointless because your product wouldn't have infringed anyway.

[00:33:30] Speaker 05:
So I don't understand why our opinion, and granted we have to go on what's written there,

[00:33:40] Speaker 05:
And perhaps it's not a model of clarity, but clearly there's broad language in that that says 100% fuel.

[00:33:48] Speaker 05:
It can be the same fuel.

[00:33:49] Speaker 05:
And it didn't confine it to ethanol.

[00:33:52] Speaker 05:
Yes, your honor.

[00:33:53] Speaker 05:
I agree.

[00:33:53] Speaker 05:
And so why?

[00:33:54] Speaker 05:
I mean, the board's not bound by it anyway.

[00:33:56] Speaker 05:
And to the extent it's unclear, we're not bound by it.

[00:34:01] Speaker 05:
But that seems to me to be the correct interpretation.

[00:34:04] Speaker 05:
And if that's the case, then doesn't that just get rid of all this jousting about what the district court did, whether the board properly paid attention to it?

[00:34:13] Speaker 05:
We get to review all this de novo.

[00:34:15] Speaker 05:
And if our view is that claim construction should be 100% fuel, one fuel, either gasoline or ethanol, then that takes care of this case, doesn't it?

[00:34:27] Speaker 02:
Your honor, I would agree.

[00:34:28] Speaker 02:
And the two things that I would note is that first, that's precisely the exercise that the board had in front of it, which is to look at the holding of this court's 2022 opinion and determine what the construction of the term should be.

[00:34:40] Speaker 02:
And it did that.

[00:34:41] Speaker 02:
And second, with respect to any Phillips-based inquiry that this court chooses to undertake, I would remind the court of the column 12 embodiment with respect to 100% gasoline.

[00:34:52] Speaker 02:
And with that, I'll see the rest of my time to counsel for the use of PTL.

[00:34:55] Speaker 02:
Thank you.

[00:35:07] Speaker 04:
Good morning, may it please the court.

[00:35:09] Speaker 04:
I'd like to start with the unrevealability.

[00:35:12] Speaker 05:
Can you address that Apple, the doll case he's talking about, because you seem to be the only person that actually cited it in your brief.

[00:35:19] Speaker 05:
And I assume you didn't cite it for the proposition that that decision is reviewable.

[00:35:26] Speaker 04:
No.

[00:35:26] Speaker 04:
So Apple v. Vidal was about the board's presidential fintive decision and whether that was reviewable.

[00:35:36] Speaker 04:
But it didn't change the standard at all.

[00:35:38] Speaker 04:
I mean, I think the standard was set.

[00:35:40] Speaker 05:
Well, that doesn't help him.

[00:35:42] Speaker 05:
I mean, fintive is just about the board's own procedures for deciding when to institute in the face of different factors.

[00:35:49] Speaker 05:
We clearly can't review that, and that's gone anyway, I think.

[00:35:53] Speaker 04:
True, but I think the question was, you know, if Apple says anything differently about the 314-D standard than what's said in the Supreme Court, and I think if you go back to Quozo... Sure.

[00:36:06] Speaker 05:
Can you just... I mean, the main point here is, and I think this was the argument they actually made in their briefs, was that this should be governed by SAS, not Quozo and Click to Call.

[00:36:16] Speaker 04:
Well, SAS was about a different issue that governs the proceedings after institution.

[00:36:25] Speaker 04:
And the way that they framed this case was that the stay was the but-for cause of institution.

[00:36:34] Speaker 04:
And they're here asking you to essentially de-institute the case.

[00:36:37] Speaker 04:
And if that's not an institute-related question, then I'm not sure

[00:36:41] Speaker 04:
what is.

[00:36:42] Speaker 04:
It would be a different thing if they had come here during the delay period and said, you know, the agency is taking too long, order the agency to act.

[00:36:52] Speaker 04:
That would be a different case and that would not be an institution related question because the institution had not yet happened and the release sought was basically just to make the decision.

[00:37:04] Speaker 04:
Here the decision has been made

[00:37:08] Speaker 04:
They acknowledged that the stay was the but for cause, basically the reason that the institution decision flipped, and they're here saying that this should all be undone.

[00:37:20] Speaker 04:
So it's all directed towards the institution.

[00:37:25] Speaker 04:
And I don't think you have to get past that.

[00:37:28] Speaker 06:
What if the board had chosen to institute, and then the day after institution said, OK, now we're going to stay.

[00:37:38] Speaker 06:
We think the district court construction is wrong, so we're instituting this.

[00:37:45] Speaker 06:
But we're going to stay, because the Federal Circuit's going to tell us for sure which way to construe this claim.

[00:37:52] Speaker 04:
You know, there would certainly be a

[00:37:55] Speaker 04:
tougher case because we would be up against a statutory deadline, although I would note that this court's Purdue decision says that the agency can act even after the deadline.

[00:38:07] Speaker 06:
So I think that... Maybe the agency would say, we understand there's a one-year deadline for us to get to a final written decision, but there can be special circumstances or good cause to blow through that one-year deadline.

[00:38:19] Speaker 06:
We think that's here and that's why we're going to stay it.

[00:38:23] Speaker 06:
Would the stay question be reviewable?

[00:38:25] Speaker 04:
I think it may be reviewable as part of the final written decision, yes, but because that's not it was not necessarily a

[00:38:40] Speaker 04:
Well, I'm doubting myself.

[00:38:43] Speaker 05:
I mean, it has to be reviewable, right?

[00:38:47] Speaker 05:
Because institutions already occurred, and so this is the course of the proceedings in your decision.

[00:38:53] Speaker 05:
That's true.

[00:38:53] Speaker 05:
It's probably abuse of discretion.

[00:38:56] Speaker 05:
But it has to be reviewable.

[00:38:57] Speaker 05:
That's true.

[00:38:58] Speaker 06:
And if we get there, then that's starting to make the whole stay question its own individual animal, separate and apart from the nature of the institution.

[00:39:10] Speaker 04:
Because the difference here is that the way that the argument is framed is all about institution.

[00:39:17] Speaker 04:
That if the stay hadn't occurred, this case would not have been instituted.

[00:39:25] Speaker 04:
If it was coming post-institution, then it would be a different question about the board's conduct during the proceedings.

[00:39:35] Speaker 04:
And so I think that while I agree that the board had different options of how to get the result it wanted, I think the way that it did it

[00:39:44] Speaker 04:
now precludes the review of this stay.

[00:39:50] Speaker 04:
I guess on that point also, there's been some dispute about whether to stay or in abeyance.

[00:39:56] Speaker 04:
I don't think it really matters what you call it.

[00:39:59] Speaker 04:
It's simply the board exercising its inherent authority to manage its own docket.

[00:40:07] Speaker 04:
And I don't think that this court wants to get in the business of telling the board when it has to decide certain motions in what order.

[00:40:16] Speaker 05:
I mean, you'd be surprised what this court wants to get in the business of sometimes.

[00:40:20] Speaker 05:
But the Supreme Court's made it clear that we don't get in the business of reviewing anything connected to the institution decision.

[00:40:28] Speaker 04:
Yeah.

[00:40:28] Speaker 04:
And I agree.

[00:40:29] Speaker 04:
And I think that that answers his question.

[00:40:32] Speaker 06:
What do you think the meaning of ethicon v. quig is?

[00:40:35] Speaker 06:
I could think of at least two ways to read it.

[00:40:39] Speaker 04:
That, I think, it goes to the special dispatch language in the re-exam statute.

[00:40:46] Speaker 04:
And while IPRs are conducted under a certain timeline, the specific decision at issue here, the re-hearing decision, has no timeline.

[00:40:56] Speaker 04:
There's no statutory deadline.

[00:41:00] Speaker 04:
There's nothing about special dispatch.

[00:41:05] Speaker 04:
the PsyWii decision set about a director of view, there is no timeline on that other than, you know, the idea that it has to be reasonable.

[00:41:14] Speaker 01:
So what about the statement in the Congress against QUIG that the board has no inherent authority?

[00:41:24] Speaker 01:
Well... Isn't that what it says?

[00:41:29] Speaker 04:
I believe, yeah, I mean, that was the case where they were staying at a re-examine in view of a district court proceeding.

[00:41:35] Speaker 01:
The whole question about inherent authority came up in connection with another argument.

[00:41:39] Speaker 01:
Yeah.

[00:41:40] Speaker 01:
In that case.

[00:41:41] Speaker 01:
And one liner was the board, only power the board has is what was given to it by Congress.

[00:41:47] Speaker 01:
I mean that... No inherent authority.

[00:41:50] Speaker 04:
That's also, re-exams are a much different procedure proceeding.

[00:41:53] Speaker 01:
I understand that, but...

[00:41:56] Speaker 01:
Are you going to distinguish the case on the grounds that that was a re-exam and this is an IPR?

[00:42:03] Speaker 01:
Yes, because an IPR is more of a... Would you agree that other than that distinction, would we be bound by that statement?

[00:42:12] Speaker 04:
Yeah, I think that...

[00:42:15] Speaker 04:
The distinction matters here.

[00:42:17] Speaker 04:
I would agree that that's the way we're distinguishing it and I would say distinction matters because IPRs are more like trial proceedings and with different deadlines where the board is able to kind of manage its own docket much like a district court.

[00:42:36] Speaker 04:
I would also note that Ethicon, the remedy awarded by the court, was vacating the stay.

[00:42:42] Speaker 04:
Unlike here where they're... That doesn't have to do with the power.

[00:42:47] Speaker 01:
I'm talking about the power of the authority.

[00:42:51] Speaker 04:
I would say that the difference between an IPR and

[00:42:58] Speaker 04:
A re-exam is sufficient to distinguish it.

[00:43:03] Speaker 05:
There's also the idea that this necessarily was... Is the reconsideration authority in the statute?

[00:43:12] Speaker 04:
No.

[00:43:14] Speaker 05:
I guess if we're reading Ethicon really strictly, then maybe there's no even authority to reconsider.

[00:43:22] Speaker 05:
Well, I'm not suggesting I agree with that.

[00:43:25] Speaker 05:
Yeah, no, I think that that goes against.

[00:43:28] Speaker 05:
If we're looking at the logic of the board can only do what's explicitly laid out in the statute, then the reconsideration comes from, I assume, the regs promulgated by PTO under the authority given to them in the AIA.

[00:43:45] Speaker 04:
Correct.

[00:43:46] Speaker 04:
And I think that if you're going to say that they can't reconsider decisions, that would go against the general understanding this court has articulated that agencies have the inherent authority to reconsider their own decisions.

[00:44:01] Speaker 01:
So while it doesn't say it in the statute... But the rehearing authority was statutory.

[00:44:06] Speaker 04:
Not on the institution decision, no.

[00:44:09] Speaker 04:
314 talks about the institution decision, but it doesn't say anything about...

[00:44:19] Speaker 04:
The board, I don't believe it says anything about the board reconsidering it.

[00:44:23] Speaker 04:
I think that that comes from the... Section 6 though, says... Rehearing authority?

[00:44:29] Speaker 04:
Oh, yeah.

[00:44:31] Speaker 04:
Sorry, I thought you were talking about specifically in the AIA.

[00:44:34] Speaker 04:
Yeah, no, I read that section 6 in the statute says something about... That doesn't cover IPRs?

[00:44:42] Speaker 04:
No, it does.

[00:44:43] Speaker 04:
It does.

[00:44:44] Speaker 01:
You're confusing me.

[00:44:46] Speaker 01:
I mean, I thought it was clear that there was statutory authority for the board to decide to greet and decide a motion to rehear the initial decision not to institute.

[00:45:00] Speaker 04:
Yeah, I apologize for that, and I was thinking specifically in the AIA, but yes.

[00:45:05] Speaker 01:
You almost dropped yourself to the bottom of the sea.

[00:45:08] Speaker 04:
Yes, Section 6 does authorize rehearing as well as the inherent authority of agencies to reconsider their decisions.

[00:45:20] Speaker 01:
I would think your argument would be that they have the statutory authority to rehear, to reconsider, and the inherent authority to

[00:45:30] Speaker 01:
decide how to go about deciding it, lies in the body of that statutory grant.

[00:45:36] Speaker 01:
And that's what distinguishes the case from African-American square.

[00:45:40] Speaker 04:
Yes, I agree.

[00:45:41] Speaker 04:
And I thank you for that.

[00:45:45] Speaker 06:
OK.

[00:45:46] Speaker 06:
Thanks very much.

[00:45:47] Speaker 04:
Thank you.

[00:45:50] Speaker 06:
Well, Mr. Segal, we're going to give you five minutes.

[00:45:56] Speaker 03:
Thank you, Judge Chen.

[00:45:57] Speaker 03:
I appreciate it.

[00:46:02] Speaker 03:
I'd like to begin, Judge Hughes, with a point that you raised about the claim construction issue and I want to make sure that I'm clarifying something about the infringement positions of the parties and also why the different fuels construction is distinct from the separate requirement that the directly injected fuel contain a non-gasoline anti-mock agent.

[00:46:21] Speaker 03:
At issue in the Markman appeal was whether or not the port injected fuel and the directly injected fuel, and I should say fuel or fuels, had to be the same.

[00:46:30] Speaker 03:
And that was the only question at issue on that appeal.

[00:46:33] Speaker 03:
In arguing for that, we pointed to the 100% fuel embodiment to say, look, because 100% ethanol was injected through the port injected system as well as the direct injected system, that provided conclusive evidence that the patent owner did not disclaim a system in which the same fuel or fuels could not be both directly injected and port fuel injected.

[00:46:56] Speaker 03:
The separate requirement, which is the one that we did not appeal from the district court, was the requirement that the directly injected fuel contain a non-gasoline anti-NOC agent.

[00:47:04] Speaker 05:
And with respect to Ford's engines, the contentions of... Yeah, but you put those two together and the logic is that your claim construction, when you won on the first part, meant that the only 100% fuel could be ethanol.

[00:47:20] Speaker 05:
Right?

[00:47:20] Speaker 05:
Because if the unappealed portion required the direct injection to be ethanol, and you won on saying there can be a single fuel system, then it could only, under that logic, be ethanol.

[00:47:36] Speaker 05:
I don't think that's exactly right, Your Honor, because in that instance... Explain to me how you could have a hundred percent gasoline

[00:47:44] Speaker 05:
system when your view is the unappealed part required it to be ethanol.

[00:47:51] Speaker 03:
I've looked at our briefing and I did not see that we argued to the court that you can have a 100% gasoline embodiment at all times.

[00:48:00] Speaker 05:
We did point to the limp home mode in which 100% gasoline was... On answering my question, I don't understand what you're arguing to me when you say that our claim construction in that case didn't permit a 100% gasoline embodiment.

[00:48:17] Speaker 05:
Because if you're relying on the unappealed portion, which you say requires ethanol, right?

[00:48:24] Speaker 05:
In your view, the direct, or something else, but not gas.

[00:48:28] Speaker 05:
Can we just say ethanol so we can get rid of the other possibilities?

[00:48:32] Speaker 05:
I don't know what they are.

[00:48:34] Speaker 05:
Your view is, in that claim construction appeal, the unappealed portion required the direct injected to be ethanol.

[00:48:43] Speaker 03:
Sure.

[00:48:44] Speaker 05:
And then your other construction that you did appeal, you argued that there can be a single fuel for both the port and the direct.

[00:48:53] Speaker 03:
That's right.

[00:48:54] Speaker 05:
And so if the direct had to be an ethanol, then the port had to be ethanol too.

[00:48:58] Speaker 05:
That's right.

[00:48:59] Speaker 05:
We didn't hold that.

[00:49:00] Speaker 05:
Don't you think we would have understood us to be affirming just a hundred percent ethanol system if that's what you were arguing to us and you would have argued it more clearly?

[00:49:11] Speaker 05:
And would you have argued it at all because they don't have a hundred percent ethanol system?

[00:49:15] Speaker 03:
I think what we were trying to use that as an embodiment to explain why the same fuel could be both directly injected and port injected.

[00:49:24] Speaker 03:
We weren't using the 100% embodiment to say that the engine always had to have ethanol at all times, which is why we did not appeal the portion of the district course construction because it permitted what we were arguing in our infringement contentions, which was that the direct injection and port fuel injection.

[00:49:40] Speaker 05:
If the result of our claim construction in that case was that

[00:49:45] Speaker 05:
The direct inject had to be ethanol, and that we recognize that the port and the direct could be the same.

[00:49:54] Speaker 05:
Would their system have infringed a system where the direct and the port were the same and it was ethanol?

[00:50:02] Speaker 03:
No, Your Honor.

[00:50:02] Speaker 03:
If it had to be 100% ethanol at all times, no, it would not have done that.

[00:50:07] Speaker 05:
And what would have been French?

[00:50:10] Speaker 05:
I understand their argument was that they didn't infringe because they use gas in both.

[00:50:16] Speaker 03:
That's a misnomer.

[00:50:17] Speaker 03:
Their engines can use a 90% gasoline and 10% ethanol blend.

[00:50:23] Speaker 03:
they do infringe because it is a gasoline that contains an anti-NOx agent, which is ethanol.

[00:50:28] Speaker 03:
So as long as it uses a 90% ethanol blend, it infringes under that construction.

[00:50:33] Speaker 06:
But isn't it also true that a purely gas-only embodiment would also infringe these claims?

[00:50:41] Speaker 03:
We are not taking that position.

[00:50:43] Speaker 06:
But I mean, I need an answer for that question, because if that were true that a

[00:50:51] Speaker 06:
truly gas-only embodiment is captured by these claims, then that would exclude the requirement that you're seeking that the anti-NOC agent be not gasoline.

[00:51:04] Speaker 03:
Agreed, Your Honor.

[00:51:05] Speaker 03:
We agree that a 100% gasoline embodiment is not contemplated by the claims in this case.

[00:51:11] Speaker 03:
I don't know if I have any brief... Just a final thought, please.

[00:51:15] Speaker 03:
One final thought, which is

[00:51:18] Speaker 03:
Judge Chen, with respect to your hypothetical about SAS Institute, I wanted to raise the possibility that had the board simply issued an order granting Ford's request for a stay, and not saying anything about institution, but simply said, we are granting Ford's request to stay reconsideration, pending what happens in future occurrence, that would be reviewable under 314D.

[00:51:40] Speaker 03:
That is not itself a decision whether to institute.

[00:51:43] Speaker 03:
It is simply a decision to stay.

[00:51:45] Speaker 03:
Thank you, Your Honors.

[00:51:46] Speaker 06:
Thank you, Mr. Siegel.

[00:51:48] Speaker 06:
The case is submitted.