[00:00:00] Speaker 01:
The last case this morning was U.S.

[00:00:02] Speaker 01:
Inventor of the National Small Business United versus the PTO, 2024-1396.

[00:00:09] Speaker 01:
Mr. Greenspoon.

[00:00:14] Speaker 02:
Good morning, Your Honors.

[00:00:16] Speaker 02:
May it please the Court.

[00:00:19] Speaker 02:
The starry, decisive effect of this Court's decision in Apple v. Vidal mandates reversal.

[00:00:27] Speaker 02:
All that Apple had to show

[00:00:29] Speaker 02:
was that it was a repeat player in PTEP proceedings to show.

[00:00:33] Speaker 01:
Apple was an individual company.

[00:00:35] Speaker 01:
You're an organization.

[00:00:37] Speaker 01:
So you've got to show associational standing.

[00:00:42] Speaker 01:
Apple was a different story.

[00:00:44] Speaker 02:
Apple was an individual company.

[00:00:46] Speaker 02:
But so are the individual companies, name by name in this record, and also pleaded generally in paragraph 5 of the complaint.

[00:00:55] Speaker 02:
And I hope to get to paragraph five of the complaint during my argument.

[00:00:59] Speaker 02:
That's on appendix page 27.

[00:01:00] Speaker 02:
So it showed concrete injury from that, being a repeat player.

[00:01:05] Speaker 02:
That was its injury from discretionary denial rulemaking inaction.

[00:01:10] Speaker 03:
Do you allege that any one member of US inventor is a, quote, repeat player?

[00:01:17] Speaker 02:
The point isn't the repeatness of it.

[00:01:19] Speaker 02:
The point is that Apple was a player who would be injured by the inaction.

[00:01:24] Speaker 03:
the the on rulemaking right but I think as the case comes to us we don't have an organizational standing issue right that that's correct so don't you have to show at least one of your members

[00:01:38] Speaker 03:
if you're going to analogize to Apple as a repeat player, as opposed to the collective of 10,000 of you collectively are a repeat player.

[00:01:47] Speaker 02:
Well, under pleading standards, Lujan says you address standing at the level of the case.

[00:01:54] Speaker 02:
So at the pleading stage of the case, we have the general allegations of repeat.

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need for this kind of rulemaking in paragraph five.

[00:02:03] Speaker 02:
But we do have a specifically named repeat player, and that is Turbeys.

[00:02:07] Speaker 02:
Turbeys was a party who submitted a declaration with the complaint.

[00:02:13] Speaker 02:
And as it turns out, you know, this court acknowledged in Apple v. Vidala can take judicial notice of certain things.

[00:02:20] Speaker 02:
As it turns out, Turbeys correctly predicted with

[00:02:24] Speaker 02:
Amazing clairvoyance that they were going to be another Petitioner or I'm sorry another respondent at the p-tab one more time at least one more time and that in fact did happen I think it was it's named in the reply brief IPR twenty twenty three dash five twenty one I think That was the repeated defense The declaration in in the record is at the end of the complaint so it would be

[00:02:53] Speaker 02:
If your honor will indulge me, it'll be somewhere around the 50s or 60s.

[00:03:00] Speaker 02:
Sure.

[00:03:03] Speaker 02:
So USI and NSBU are, through their membership, repeat players in precisely the same way.

[00:03:09] Speaker 02:
In fact, this is a perfect kind of case for associational standing.

[00:03:13] Speaker 00:
What's the injury here?

[00:03:15] Speaker 00:
What's the injury in fact?

[00:03:17] Speaker 02:
The injury is the risk to property rights that triggers upon the institution of a PTAP trial.

[00:03:26] Speaker 00:
A risk?

[00:03:28] Speaker 00:
So it's potential injury?

[00:03:30] Speaker 02:
It's the same genre of risk described in Massachusetts v. EPA, the Supreme Court case that talks about regulating carbon dioxide as a pollutant.

[00:03:42] Speaker 02:
It's the same kind of risk as an NRDC v. Wheeler, where the D.C.

[00:03:46] Speaker 02:
Circuit talked about the inaction of the agency in regulating CFC.

[00:03:51] Speaker 00:
The risk here is re-bumped.

[00:03:54] Speaker 02:
The risk is not remote.

[00:03:57] Speaker 02:
We have shown that through our statistical showing.

[00:04:00] Speaker 02:
I'm going to be arguing that's not even necessary for us to show.

[00:04:02] Speaker 02:
Apple didn't need a statistical showing.

[00:04:05] Speaker 02:
Apple simply relied on the difference in the standard of proof among the distinct fora.

[00:04:12] Speaker 02:
And that was enough for this court to show that Apple had a concrete injury from discretionary denial rulemaking inaction that it did not like.

[00:04:23] Speaker 02:
So again, paragraph five in the complaint, I would also mention paragraph six, eight, and 45.

[00:04:29] Speaker 02:
Those are also paragraphs that adequately allege the concrete injury.

[00:04:34] Speaker 02:
And remember, under Lujan, we're at the pleading stage.

[00:04:38] Speaker 02:
And then, of course, we went far beyond the pleading requirements by attaching the Malone and Sherman declarations.

[00:04:43] Speaker 02:
And we supplied details to support the allegations.

[00:04:46] Speaker 03:
I think the district court seems to place a lot of emphasis that the first step in the causation chain depends on a third party actor.

[00:04:54] Speaker 03:
taking a step here filing a petition to institute an IPR.

[00:05:00] Speaker 03:
And there seems to be a lot of case law, especially coming from the Supreme Court, that says when your articulated injury is dependent on the actions of an unrelated third party, that's going to be pretty hard to show that that's anything other than a speculative

[00:05:14] Speaker 02:
If that were a flaw in standing for my clients, that would have been a flaw for standing for Apple.

[00:05:23] Speaker 02:
Because Apple did not have the clairvoyance to know when it was going to be sued in district court.

[00:05:28] Speaker 02:
that would trigger it to file an IPR against its patent infringement opponent.

[00:05:35] Speaker 02:
But the other response to the issue, Your Honor, is that certainly after the AHM case from the Supreme Court, I think I'm saying that right, the one we noted in our reply brief that issued just a week before the response brief, that case really nailed down that the Supreme Court is looking for

[00:05:58] Speaker 02:
We're looking at the question of third-party actions and the uncertainty arising from third-party actions when you're dealing with an unregulated entity, unregulated by the agency.

[00:06:09] Speaker 02:
And here certainly, I mean, these patents are highly regulated by the agency, particularly when they're dragged into IPR.

[00:06:16] Speaker 02:
So again, Apple did not need any clairvoyance to name any future IPR opponent, and it showed substantial risk that a fresh lawsuit would happen, triggering a fresh IPR.

[00:06:28] Speaker 02:
under which it would be burdened by unfavorable rulemaking inaction.

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And again, we went far beyond the pleading requirements, naming tentails, turvays, as specific parties who accurately predicted their imminent harm from rulemaking inaction.

[00:06:43] Speaker 02:
And also

[00:06:43] Speaker 03:
If you prevail on this appeal, what happens next?

[00:06:47] Speaker 03:
You have standing, but you have not.

[00:06:50] Speaker 03:
Then you go back and try and prove that there should have been notice of comment rulemaking, or is it something different than that?

[00:06:56] Speaker 02:
Correct.

[00:06:57] Speaker 02:
And this is one of the inaccuracies of the government.

[00:07:00] Speaker 02:
They say that we're seeking an injunction, which is not correct.

[00:07:03] Speaker 02:
What we're seeking is judicial review of the denial of a rulemaking petition.

[00:07:08] Speaker 03:
So what happens is... So the district court could still say the director did nothing wrong, even if you win this appeal, we would send it back?

[00:07:17] Speaker 02:
Of course.

[00:07:17] Speaker 02:
In this procedural posture, we're only talking about getting the doors to the courthouse open for my clients.

[00:07:23] Speaker 02:
So the question of whether the agency acted arbitrarily and capriciously in denying the petition is not before this panel.

[00:07:31] Speaker 03:
I have a sense that there have been some developments with respect to director discretionary denials of petitions.

[00:07:41] Speaker 03:
None of that's in our record, of course.

[00:07:42] Speaker 03:
It didn't exist at the time of your briefing.

[00:07:45] Speaker 03:
Does that have any impact on what we do in this appeal, or should we ignore all of that?

[00:07:49] Speaker 02:
You know, I was thinking about this last night.

[00:07:53] Speaker 02:
wondering if that question would come in.

[00:07:55] Speaker 02:
The answer is absolutely yes.

[00:07:56] Speaker 02:
And it's really based on the style of briefing by my friend in the response brief.

[00:08:03] Speaker 02:
They tried to distinguish the Apple v. Vidal case by saying that, to paraphrase, the winds were blowing in their direction at the agency based on Director Vidal's various actions on discretionary denial, making it plausible that rulemaking would emerge in their favor.

[00:08:23] Speaker 02:
I think that works against them today because I think it's very fair to say the winds are blowing much more in the direction favorable to patentees and inventors on this issue of discretionary denial.

[00:08:37] Speaker 02:
So I think the argument from my friend backfires.

[00:08:39] Speaker 02:
So I think that's the effect of recent developments.

[00:08:41] Speaker 03:
Presumably you would have to amend your complaint on remand to add that if you wanted that allegation to be part of the case.

[00:08:47] Speaker 02:
I don't know the answer to that question.

[00:08:49] Speaker 02:
I haven't thought that through, but it's something we're certainly open to.

[00:08:53] Speaker 00:
So go back to Judge Stark's question.

[00:08:56] Speaker 00:
What is it that you're looking for?

[00:08:58] Speaker 00:
Not an injunction, but a mandamus?

[00:09:01] Speaker 02:
It would be a ruling.

[00:09:03] Speaker 02:
This is an APA case seeking judicial review of the denial of a citizen's rulemaking petition.

[00:09:10] Speaker 02:
So what we would be seeking is a declaration from the court that the denial was arbitrary and capricious and therefore remanding to the agency.

[00:09:20] Speaker 02:
That's the ultimate relief that we would be entitled to under this section of the APA.

[00:09:26] Speaker 02:
So I think I already mentioned, but Apple, I'll complete the analogy to Apple, then I'll move on.

[00:09:33] Speaker 02:
But they did not need to allege or prove any statistical showing or differential outcomes in the PTAB versus district court proceedings, because all that Apple had to do in this case was point to the preponderance standard at the PTAB.

[00:09:48] Speaker 02:
versus the clear and convincing standard in federal court.

[00:09:50] Speaker 02:
And that was all that this court needed to appreciate, that Apple would benefit from more difficult discretionary denial.

[00:09:59] Speaker 02:
So this appeal is the flip side of the same coin minted by this court in Apple v. Vidal.

[00:10:05] Speaker 02:
The only difference is one without a distinction.

[00:10:07] Speaker 02:
In fact, it slightly favors standing in our case.

[00:10:10] Speaker 02:
which is that we complain about denial of a rulemaking petition, while APP will complain generically about the absence of formal rulemaking.

[00:10:19] Speaker 02:
I seem about to enter my rebuttal time, so unless there are further questions, I'll reserve the rest of my time.

[00:10:24] Speaker 01:
That'll be fine, Mr. Shaw.

[00:10:48] Speaker 04:
May it please the court, Whaley Shaw for the PTO.

[00:10:51] Speaker 04:
There are two threshold questions, two threshold jurisdictional questions in this case, mootness and standing.

[00:10:57] Speaker 04:
This court may choose which to address first, and if the court agrees with the government on either, this case cannot proceed.

[00:11:04] Speaker 04:
So unless the court has a preference, I'll begin with the mootness issue.

[00:11:10] Speaker 04:
The thrust of plaintiff's petition for rulemaking is that plaintiffs wanted the PTO to engage in rulemaking on the topic

[00:11:16] Speaker 04:
of discretionary denials of institution of IPR and PGR.

[00:11:20] Speaker 04:
That's consistent with the Fifth Circuit litigation in which U.S.

[00:11:23] Speaker 04:
Inventor asserted that PTO unlawfully failed to conduct notice and comment rulemaking on discretionary denial.

[00:11:30] Speaker 04:
That case was ultimately dismissed for lack of standing.

[00:11:33] Speaker 04:
It's also consistent with plaintiff's complaint in this case where they principally argue that the denial of their petition was unlawful for the same reason.

[00:11:40] Speaker 04:
That notice and comment was required.

[00:11:43] Speaker 04:
The PTO has now given plaintiffs everything they could obtain through judicial relief in this litigation.

[00:11:48] Speaker 04:
The PTO specifically considered

[00:11:50] Speaker 04:
plaintiff's petition and the proposed rule, and it initiated a rulemaking on the topic of discretionary denial.

[00:11:57] Speaker 03:
On that general topic, is there any indication that there are specific requests for what they call essentially a veto for certain small patentees to be able to veto the institution of IPRs?

[00:12:11] Speaker 03:
Is there any indication in our record that that was ever considered?

[00:12:15] Speaker 04:
Yes, there is an indication.

[00:12:17] Speaker 04:
First, in denying the petition for rulemaking, the PTO specifically stated that it would consider the proposal in any future rulemaking.

[00:12:27] Speaker 04:
Then, following the denial of the petition, the PTO issued an advance notice of proposed rulemaking.

[00:12:35] Speaker 04:
And in that advance notice, it specifically considered a

[00:12:40] Speaker 04:
veto power proposal.

[00:12:41] Speaker 04:
I'm sorry, I didn't consider it.

[00:12:42] Speaker 04:
It specifically noted that there had been a proposal to include a veto power, and it requested comment on that proposal.

[00:12:51] Speaker 04:
And then finally, we know from the NPRM that the PTO ultimately decided not to include the veto power in the proposed rule.

[00:13:00] Speaker 04:
But it did, in fact, consider the proposal that plaintiffs presented and decided not to include that

[00:13:08] Speaker 04:
while at the same time initiated a rulemaking on the topic that petitioners requested.

[00:13:13] Speaker 04:
And that's everything that plaintiffs could get through judicial relief, which makes.

[00:13:18] Speaker 03:
In light of everything that's not in the record, but that has been active with respect to discretionary denials in the recent past, wouldn't it be odd for us to say that this dispute is moot when there's a lot of activity ongoing about this topic, and I guess related to that,

[00:13:38] Speaker 03:
if we were to affirm, does anything prevent them from filing a new petition in light of current events?

[00:13:46] Speaker 04:
I don't think anything prevents them from filing a new petition.

[00:13:50] Speaker 04:
But I would disagree with the suggestion that, based on some reading of political winds, that this court should decide whether or not the cases move.

[00:13:59] Speaker 00:
In fact, if- Would the agency oppose or fight against the filing of a new petition?

[00:14:05] Speaker 04:
I don't, I mean, I don't think, you know, plaintiffs have every right under the APA to file a petition for rulemaking, so I don't think, I'm not aware that the agency has any particular... No, no, I was asking whether you would oppose it.

[00:14:18] Speaker 04:
Whether I would oppose the filing of a petition for rulemaking?

[00:14:21] Speaker 04:
I mean, I, no, I don't have any position on that.

[00:14:25] Speaker 04:
I think, you know, it's permissible under the APA for them to petition for rulemaking.

[00:14:29] Speaker 01:
I find it curious that you raised that you argue mootness first seems to me standing relates to whether you can get in the door and mootness starts getting into merits.

[00:14:45] Speaker 04:
So I think both mootness and standing are threshold jurisdictional questions, and this court can take up either one of them first, so I'm happy to discuss both.

[00:14:56] Speaker 04:
So if the court would prefer, I'm happy to shift to the standing question.

[00:15:00] Speaker 01:
Please shift.

[00:15:03] Speaker ?:
OK.

[00:15:03] Speaker 04:
So with regard to standing, plaintiffs have failed to adequately allege that at least one identified member faced, at the time of the complaint, a substantial and imminent risk that all of the speculative links in the chain between denial of the petition for rulemaking and actual cancellation of their patent claims would occur.

[00:15:25] Speaker 04:
And that requires, as we discussed in our briefs, that requires a series of speculative possibilities to occur.

[00:15:32] Speaker 04:
One, the filing of a petition for IPR or PGR against one of these identified members by a third party that's not before this court.

[00:15:40] Speaker 04:
Two, that the petition actually satisfy the statutory criteria for institution.

[00:15:47] Speaker 04:
Three, that the director or the PTO would not otherwise deny the petition as a matter of discretion under the existing standards for discretionary denial.

[00:15:59] Speaker 04:
Four, that the difference between litigating in

[00:16:03] Speaker 04:
an IPR or PGR proceeding versus litigating in the district court would actually produce a difference in the outcome of that particular case, and five, that any difference in outcomes would survive judicial review or appellate review by this court.

[00:16:17] Speaker 03:
That fifth one is of your own creation.

[00:16:20] Speaker 03:
The district court didn't say anything about appeal.

[00:16:24] Speaker 03:
And in Apple v. Vidal, we didn't say anything about appeal.

[00:16:26] Speaker 03:
So that's not a requirement, right?

[00:16:28] Speaker 04:
I mean, I agree that the district court did not say it.

[00:16:32] Speaker 04:
And it wasn't discussed in Apple.

[00:16:34] Speaker 04:
But I think it's a logical interpretation of standing doctrine that, obviously, the difference in outcomes does not occur until after any appellate rights have been exhausted.

[00:16:43] Speaker 03:
I have a fourth factor.

[00:16:46] Speaker 03:
I don't think you're here to say that the standard of proof is the same in district court and in an IP office, right?

[00:16:55] Speaker 04:
No, the standard of proof is different, but the question is, is that going to produce a difference in outcomes in a particular IPR or PGR that's being litigated by an identified member?

[00:17:07] Speaker 03:
And so wouldn't it even be argued that across the board, if you have to apply a clear and convincing standard in district court,

[00:17:16] Speaker 03:
that it will be harder, and therefore there will be less likely cancellations, just for lack of a better word, of claims than if you only have to prove by preponderance.

[00:17:27] Speaker 03:
That's just inherent in our judicial process, isn't it?

[00:17:29] Speaker 04:
But the point here is plaintiffs have to establish that there is an identified member that will suffer a substantially higher risk

[00:17:42] Speaker 04:
of imminent harm to their patent rights.

[00:17:45] Speaker 04:
And in order for that to occur, it's possible, it's conceivable that there will be a difference between IPR and PGR versus district court litigation because of the standard of proof.

[00:17:59] Speaker 04:
But that doesn't mean that when you stack that on top of all the other events in the chain that have to occur, that they've shown a substantial and imminent risk that, in fact,

[00:18:11] Speaker 03:
You know, we know, and I think arguably are adequately alleged, happen every day that accused infringers file petitions.

[00:18:23] Speaker 03:
They meet the threshold of a reasonable likelihood that one claim will be canceled.

[00:18:27] Speaker 03:
So they're instituted.

[00:18:35] Speaker 03:
We all know that.

[00:18:38] Speaker 03:
And we relied on those similar realities on the flip side of this case in Apple.

[00:18:45] Speaker 03:
So doesn't it just follow, necessarily, that there is at least standing in this case?

[00:18:52] Speaker 04:
No, I think it absolutely does not follow.

[00:18:54] Speaker 04:
And for many reasons, but first I would just point the court to the Supreme Court's precedent, which makes it absolutely clear that just because there is even a statistical likelihood that

[00:19:06] Speaker 04:
among an organization's many members that one unidentified member is likely to be injured.

[00:19:12] Speaker 04:
that that is sufficient.

[00:19:13] Speaker 04:
So in Summers v. Earth Island Institute, the Supreme Court said, since, for example, the Sierra Club asserts in its pleadings that it has more than 700,000 members nationwide, it is probable that some unidentified members have planned to visit some unidentified small parcels and will suffer unidentified concrete harm as a result.

[00:19:34] Speaker 04:
This novel approach to the law of organizational standing would make a mockery

[00:19:38] Speaker 04:
of our prior cases, which have required plaintiff organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.

[00:19:50] Speaker 04:
And I would also point out that there the Supreme Court is referring specifically to allegations, I think, which rebuts the point made by plaintiffs that this requirement doesn't apply at the pleading stage.

[00:20:00] Speaker 04:
So the Supreme Court makes absolutely clear that you cannot rely on a probability that one member of some large organization is going to be

[00:20:08] Speaker 04:
injured, you have to look at an identified individual member.

[00:20:12] Speaker 04:
And here what we have are individual members who have at most one or two or a handful of patents that have been involved in the IPR process, one or two or maybe a handful of times.

[00:20:25] Speaker 04:
And that is simply not sufficient to show that they suffer a substantial risk, that all of the events in the chain of possibilities that have to occur

[00:20:37] Speaker 04:
cancellation of their patent to occur, that all of those events are in fact likely to occur with respect to any particular plaintiff.

[00:20:47] Speaker 04:
And that is why plaintiffs are unable to establish standing.

[00:20:53] Speaker 04:
I also wanted to speak to the point about Alliance for Hippocratic Medicine, which plaintiffs rely on

[00:21:02] Speaker 04:
for the proposition that any time a regulated party elects some harm from regulation that they automatically have standing.

[00:21:12] Speaker 04:
And that's just not correct.

[00:21:14] Speaker 04:
What Alliance for Hippocratic Medicine says is that where a party

[00:21:21] Speaker 04:
that government regulations that require or forbid some action by the plaintiff almost invariably satisfy both the injury in fact and causation requirements.

[00:21:40] Speaker 04:
government regulations that require or forbid some action by plaintiff.

[00:21:45] Speaker 04:
But here, we're not talking about a regulation that directly requires any of plaintiff's members to do or refrain from doing something.

[00:21:53] Speaker 04:
Rather, it's a rule that governs the exercise of the director's discretionary authority to deny petitions for IPR or PGR, which are not even filed by plaintiffs, but rather filed by third parties

[00:22:07] Speaker 04:
for not before this court.

[00:22:08] Speaker 04:
So that sentence from Alliance for Hippocratic Medicine simply does not apply.

[00:22:16] Speaker 04:
And I would instead point the court, for example, to the DC Circuit's decision in Cierso versus Mnuchin, where a bank that was regulated by the Department of the Treasury nonetheless had to establish standing through all the normal steps in establishing the chain of causation because the harm that ultimately

[00:22:35] Speaker 04:
befell them was the result of action taken by a third party.

[00:22:39] Speaker 04:
Just as here, plaintiffs can only be injured upon the specular act of a third party filing a petition for IPR or PGR that actually satisfies the statutory requirements and then going through all of the other steps that I discussed earlier.

[00:22:57] Speaker 03:
What about the declaration that

[00:23:03] Speaker 03:
or member identification?

[00:23:05] Speaker 04:
Yes.

[00:23:06] Speaker 04:
So I think, first of all, I think plaintiffs themselves argue in their own brief that standing has to be assessed as of the time of the filing of the complaint.

[00:23:17] Speaker 04:
And as of the time of the filing of the complaint, I believe that what we knew about TURBIS as of the time of the filing of the complaint was that they had previously had an IPR petition filed against them.

[00:23:33] Speaker 04:
which the USPTO had actually denied on, I believe, I'm not sure exactly what the ground was, but I believe it was a statutory ground, and so there was no pending IPR petition

[00:23:46] Speaker 04:
against Tervez and the only IPR petition mentioned had been denied.

[00:23:49] Speaker 04:
And so that is not simply not a sufficient reason to believe as of the time of the filing of the complaint that there is going to be this chain of events that occurs that ultimately causes them harm.

[00:24:00] Speaker 04:
Now they're trying to sort of rely on the ex post fact that in fact a petition was filed and they do the same for

[00:24:07] Speaker 04:
Hardin and Hill, they found two members that had IPR petitions filed against them since the filing of the complaint, and then they bring those before the court.

[00:24:19] Speaker 04:
But that's not the way the standing analysis works.

[00:24:22] Speaker 04:
The court should look at what the facts as they existed at the time of the filing of the complaint and consider whether they are sufficient or, as the facts has alleged, whether they are sufficient to establish a substantial risk

[00:24:36] Speaker 04:
of imminent harm in the form of cancellation of patents.

[00:24:41] Speaker 03:
What about paragraph six allegations of the capable repetition yet evading review factor for assessing injury?

[00:24:51] Speaker 04:
Yeah, I'm not sure that the I think that the capable of repetition yet evading review doctrine is an exception to mootness.

[00:24:59] Speaker 04:
And I struggle a little bit to see why it has any application to the standing analysis here.

[00:25:06] Speaker 04:
certainly doesn't apply to the mootness argument that we do make, which I don't think implicates that doctrine.

[00:25:13] Speaker 04:
I mean, the point is, at the time of the filing of the complaint, is there some identified member of one of the plaintiff organizations that can show that harm is substantial and imminent?

[00:25:27] Speaker 04:
And there's no question of, I guess I'm not sure why it would make any difference to apply that doctrine, because it's simply

[00:25:37] Speaker 04:
It speaks to whether a case should be moot when the time frame for litigating a case is so short that the case will be mooted by the time the litigation concludes.

[00:25:47] Speaker 04:
But that's not the argument we're making here.

[00:25:49] Speaker 01:
If the one case that has been cited, a company lost its patent, would the result be different?

[00:25:57] Speaker 04:
No, because we are, because plaintiffs are seeking

[00:26:03] Speaker 04:
not injunctive, but equitable relief, a prospective equitable relief, then the injury they have to show is prospective as of the time of the filing of the complaint.

[00:26:14] Speaker 04:
So the mere fact that, you know, later on there happens to be... It's not a mere fact.

[00:26:19] Speaker 01:
It's not a mere fact.

[00:26:20] Speaker 01:
If they lost their patent, the organization still wouldn't have standing.

[00:26:27] Speaker 04:
Yes, I think because the point is you have to judge as of the time of the filing of the complaint, looking prospectively forward, are there sufficient factual allegations to establish that one of the identified members of the plaintiff organizations

[00:26:42] Speaker 04:
faces a substantial and imminent risk of harm.

[00:26:46] Speaker 04:
It's always possible that after the filing of the complaint, some remote and speculative harm will befall one of the members of the organization.

[00:26:56] Speaker 04:
But that doesn't retroactively establish standing as at the time of the filing of the complaint.

[00:27:01] Speaker 01:
Thank you, counsel.

[00:27:03] Speaker 01:
Mr. Green's phone has some rebuttal time.

[00:27:09] Speaker 02:
Starting with the last point first, Your Honor, last night, not in the record, I alert you, I looked up the outcome of that Turvey's IPR that happened in 2023.

[00:27:19] Speaker 02:
And in fact, they lost most of their original claims, all but three original claims.

[00:27:24] Speaker 01:
So they lost property rights.

[00:27:25] Speaker 01:
At the time earlier, the result was not foreordained.

[00:27:35] Speaker 02:
no it was a but the result even in the earliest days was a such quote-unquote substantial risk that's the language this court used in Apple v Vidal that's the concept from you know that the Supreme Court in the DC Circuit have been using when talking about coastal you know global

[00:27:53] Speaker 02:
global warming causing oceans to rise, and so incremental losses of coastal land will be happening because we're not regulating pollutants in the right way.

[00:28:03] Speaker 02:
This is the stuff of standing.

[00:28:06] Speaker 02:
This is substantial risk of property impairment based on an inaction by the agency that we complain of.

[00:28:14] Speaker 02:
And the way I view the big picture is

[00:28:17] Speaker 02:
We got through the front door with the pleading allegations.

[00:28:20] Speaker 02:
The only job for any court to do is to assess, are those pleading allegations plausible, whether or not they identify an individual by name?

[00:28:29] Speaker 02:
The role played by all these names that keep popping up in the record, as Judge Stark indicated, everybody knows these people are going to come up.

[00:28:37] Speaker 02:
The role that that plays in the legal analysis is just to lock down and solidify the plausibility.

[00:28:42] Speaker 02:
of the pleading allegations.

[00:28:44] Speaker 02:
So I do agree with my friend that we looked at the complaint, but the complaint already has everything that you need to hit all of those sub-factors of standing that the district court expected to see from us.

[00:28:56] Speaker 02:
Very quickly, in response to what's wrong with just filing another petition, well, Your Honor, this is the government.

[00:29:04] Speaker 02:
It took us two years to get a ruling on the first petition.

[00:29:07] Speaker 02:
It took us another year to get judicial review of that denial, now another year here, and here we are.

[00:29:12] Speaker 02:
So we certainly would not prefer to be in a situation where this court affirms and we are forced to file another petition for at least that reason.

[00:29:21] Speaker 03:
Is it correct that your last petition was considered in the course of the rulemaking that post-stated your complaint?

[00:29:30] Speaker 02:
That's not explicitly mentioned.

[00:29:32] Speaker 02:
So my friend threw around various terms in this world, advanced notice of proposed rulemaking, notice of proposed rulemaking.

[00:29:39] Speaker 02:
Those are different animals.

[00:29:41] Speaker 02:
RFCs, request for comment, are even different.

[00:29:44] Speaker 02:
The NRPM is the only important one in this ecosystem.

[00:29:50] Speaker 02:
The NPRM is the only thing that can actually mature into a final rule.

[00:29:54] Speaker 02:
That is what would be published if our petition were granted by the agency.

[00:30:01] Speaker 02:
So the ANPRM is sort of testing the waters, just like request for comment.

[00:30:04] Speaker 02:
Even in the ANPRM, there was no express mention of our petition.

[00:30:08] Speaker 02:
There was some discussion that a veto power was in the air, but there was no express mention of USMPRM.

[00:30:14] Speaker 03:
But no mention of your petition or a veto idea in the NRPM?

[00:30:18] Speaker 02:
Correct.

[00:30:18] Speaker 02:
It was completely absent in the NRPM.

[00:30:24] Speaker 02:
Step one that we keep hearing about, where it's supposedly speculative that somebody might file an IPR petition.

[00:30:31] Speaker 02:
To this day, I still don't believe I'm hearing that from my friend, because we do have all these individuals that have been named in the record.

[00:30:40] Speaker 02:
And let's not forget, let's go now to the step four that Your Honor talked about, Judge Stark.

[00:30:46] Speaker 02:
Step four, according to the district court, was that there were, you know, we would have to show, our side would have to show that there was a substantially increased risk compared to district court activities.

[00:30:57] Speaker 02:
We're in a universe where many patents are IPR'd without there being any copending district court activity.

[00:31:04] Speaker 02:
And in fact, that very turvay's proceeding, where they lost all but three of their original claims, was one where there was no copending

[00:31:15] Speaker 02:
district court litigation involving that particular company that Turvey's alleged was connected to the Chinese Communist Party.

[00:31:22] Speaker 02:
That was deep in the record and deep in the weeds there, but there are allegations that this was sort of a national security issue that was being played out in the patent office.

[00:31:39] Speaker 02:
Finally, the Turvey's declaration, that's at appendix 101.

[00:31:43] Speaker 02:
That is connected to the complaint.

[00:31:44] Speaker 02:
That is submitted with a complaint.

[00:31:46] Speaker 02:
Paragraph 14 is the one where Turvey's, amazingly in hindsight, with clairvoyance, predicted that they would be attacked by a Chinese entity in a future IPR.

[00:31:57] Speaker 02:
And in fact, they were.

[00:31:58] Speaker 02:
That's paragraph 14 of that declaration.

[00:32:01] Speaker 02:
Before I sit down, I just want to identify, unrelated to my argument, there are two factual errors.

[00:32:06] Speaker 02:
There's the same factual error made at the district court and in Appellee's brief.

[00:32:11] Speaker 02:
flag this for your honors in case there's a written opinion.

[00:32:14] Speaker 02:
That is, the timing of when our petition was filed, it was filed August 27th, 2000, which was before any litigations, before any U.S.

[00:32:25] Speaker 02:
inventor litigation that happened in Texas, before the apple, the doll that happened in Northern California, both the district court and my friend and his brief get that wrong.

[00:32:37] Speaker 02:
They think that this petition that is on review was filed after those litigations.

[00:32:42] Speaker 02:
In fact, it was earlier.

[00:32:44] Speaker 01:
You said there were two errors.

[00:32:48] Speaker 01:
Did you say there were two errors?

[00:32:49] Speaker 02:
Two errors.

[00:32:51] Speaker 02:
Oh, both of them make the same error.

[00:32:53] Speaker 02:
I apologize.

[00:32:54] Speaker 02:
I should have been more clear.

[00:32:55] Speaker 02:
Yes.

[00:32:56] Speaker 02:
I don't fault my friend.

[00:32:59] Speaker 02:
I mean, if the district court made that error, it's easy to creep into the appellate.

[00:33:02] Speaker 01:
Thank you to both counsel.

[00:33:03] Speaker 01:
The case is submitted.

[00:33:05] Speaker 01:
Thank you, Your Honor.

[00:33:05] Speaker 01:
That concludes today's arguments.