[00:00:02] Speaker 04: We have four argued cases this morning. [00:00:07] Speaker 04: The counsel for the first two should be aware that we intend to only hear argument in the first of those two, since they're word for word identical. [00:00:18] Speaker 04: You can proceed, Mr. Cantor. [00:00:20] Speaker 04: You're reserving three. [00:00:28] Speaker 06: Correct. [00:00:28] Speaker 06: Good morning, Your Honors. [00:00:29] Speaker 06: My name is Mark Cantor, and I'm here on behalf of the Appellant Jumsa. [00:00:33] Speaker 04: Mr. Ketter, throughout the blue brief, JEMSA refers to Expedia and TripAdvisor as petitioners. [00:00:42] Speaker 04: For example, the Amazon customers listed as petitioners. [00:00:46] Speaker 04: But that's simply not true. [00:00:47] Speaker 06: Correct. [00:00:47] Speaker 06: That was an error. [00:00:49] Speaker 04: OK. [00:00:50] Speaker 04: What's your obligation as an attorney to correctly present facts to this case? [00:00:55] Speaker 06: I think in the reply I mentioned that we were wrong. [00:00:58] Speaker 01: You didn't actually mention that you were wrong. [00:01:01] Speaker 01: You started referring to the parties using different labels, but I didn't see anything where you admitted that you were wrong. [00:01:07] Speaker 06: I think there's a footnote in the brief that we had confused that if they should be treated the same, then we're sorry for any confusion. [00:01:25] Speaker 06: That's on footnote two. [00:01:53] Speaker 06: I don't know what else to answer the question other than that. [00:01:58] Speaker 06: It was an error, Your Honor. [00:02:02] Speaker 04: It was certainly wrong. [00:02:02] Speaker 06: Absolutely. [00:02:04] Speaker 03: It certainly didn't make our preparation for this case any easier, trying to figure out who you were talking about. [00:02:12] Speaker 06: I agree, Your Honor, and I apologize to the court. [00:02:15] Speaker 03: So the real question here, I gather, is whether or not Amazon should have been named as a real party in interest. [00:02:22] Speaker 06: I think the question is not whether they should have been named. [00:02:25] Speaker 06: The question is whether they are. [00:02:27] Speaker 03: Well, whether they are. [00:02:28] Speaker 03: Yeah. [00:02:29] Speaker 03: It's a slightly different. [00:02:30] Speaker 03: Whether they are there. [00:02:31] Speaker 03: Right. [00:02:31] Speaker 03: Okay. [00:02:32] Speaker 03: All right. [00:02:33] Speaker 03: So in order to make under the world case, your motion to terminate has to do more than just say, I think Amazon is a real party in interest, right? [00:02:45] Speaker 03: Of course. [00:02:46] Speaker 03: You can't just say that. [00:02:47] Speaker 03: So I've got a copy of the [00:02:51] Speaker 03: motion to terminate here in front of me. [00:02:53] Speaker 03: And I see that in two places you say the bare allegation. [00:02:59] Speaker 03: Petitioners failed to identify Amazon as a real party in interest. [00:03:05] Speaker 03: I'd like you to go through the motion to terminate and point out where there is some putative evidence that Amazon is a real party in interest [00:03:17] Speaker 03: in this proceeding because of its conduct with regard to this proceeding. [00:03:23] Speaker 03: I want you to exclude all of the conduct of Amazon or anybody else in Virginia or in Texas for purposes of the hypothetical as irrelevant. [00:03:36] Speaker 03: Do you have any? [00:03:39] Speaker 03: Is there anything in the petition you can point me to? [00:03:42] Speaker 03: that averse conduct of Amazon with regard to these IPRs? [00:04:15] Speaker 03: 2357, volume one. [00:04:18] Speaker 06: I've got the actual. [00:04:24] Speaker 03: I just printed and cleaned it up. [00:04:27] Speaker 03: So the question is, what conduct of Amazon with regard to the IPR is not with regard to Texas or Virginia? [00:04:39] Speaker 06: Your Honor, I don't believe there is anything in the record below [00:04:44] Speaker 06: that Amazon drafted the IPR or controlled the IPR. [00:04:50] Speaker 06: Okay? [00:04:50] Speaker 06: I don't believe that. [00:04:51] Speaker 03: I think what we said was... Under the Taylor factors. [00:04:54] Speaker 03: Is there any evidence under any of the Taylor factors of conduct of Amazon with regard to the IPR procedure? [00:05:03] Speaker 06: Just what they said to the court below. [00:05:04] Speaker 03: Is the answer to that no, correct? [00:05:07] Speaker 06: I do not believe that... So in the petition... There's nothing in the petition itself. [00:05:11] Speaker 06: And I think as a fact, there are no facts. [00:05:15] Speaker 06: that Amazon actually wrote the IPR or controlled the IPR? [00:05:18] Speaker 03: Is it undisputed that there are no facts in the record that would support naming Amazon as a real party in interest for its conduct in these proceedings? [00:05:32] Speaker 06: I do not agree with that. [00:05:34] Speaker 03: All of your evidence is with regard to Amazon expediting other people's participation in [00:05:42] Speaker 06: And in this particular proceeding. [00:05:43] Speaker 03: Pardon me? [00:05:44] Speaker 06: And Expedia's participation in this proceeding. [00:05:48] Speaker 06: Expedia is a real party in interest in this proceeding. [00:05:50] Speaker 03: Expedia was named as a real party in interest in this proceeding. [00:05:52] Speaker 03: Correct. [00:05:53] Speaker 03: So what? [00:05:54] Speaker 03: They were named. [00:05:56] Speaker 03: Why does that mean Amazon has to be named? [00:05:58] Speaker 06: Amazon took over for Expedia one week after the IPRs were filed and before institution. [00:06:06] Speaker 06: Amazon stood in the shoes of Expedia. [00:06:10] Speaker 03: Where? [00:06:11] Speaker 06: What do you mean, where? [00:06:14] Speaker 06: Where? [00:06:14] Speaker 03: Where? [00:06:14] Speaker 03: Yeah, in the IPRs? [00:06:16] Speaker 06: Yeah. [00:06:16] Speaker 06: Amazon, it's in the declaration of Mr. Shearer, which is attached to our motion. [00:06:21] Speaker 06: He said that Amazon counsel took over the case after the IPRs were filed. [00:06:28] Speaker 01: Took over the IPR involvement on behalf of Expedia, or took over involvement in Texas litigation on behalf of Expedia? [00:06:37] Speaker 06: Everything on behalf of Expedia. [00:06:38] Speaker 06: There was no limitation. [00:06:40] Speaker 06: It said Amazon took over Expedia. [00:06:42] Speaker 01: OK. [00:06:42] Speaker 01: And Expedia was named as a real party interest. [00:06:45] Speaker 01: Correct. [00:06:45] Speaker 01: Provided some money, I guess, to the petitioners. [00:06:49] Speaker 01: Correct. [00:06:50] Speaker 01: But did not. [00:06:51] Speaker 01: I think that it's undisputed that they had no control over the IPR. [00:06:57] Speaker 06: There's nothing in the record. [00:06:58] Speaker 06: That's correct. [00:06:59] Speaker 01: Can I ask you something else? [00:07:00] Speaker 01: It's related to what Judge Cleverger asked you. [00:07:03] Speaker 01: I read your motion to terminate before the P tab. [00:07:08] Speaker 01: And the way I read it was that it's primarily saying the main theory that you have is that the parties that were named as a real party in interest to the IPRs, that those parties are in fact parties in the DJ action. [00:07:28] Speaker 01: And because they're in fact parties to the DJ action, 315A applies. [00:07:34] Speaker 01: What I don't see in your petition [00:07:37] Speaker 01: is an argument that Amazon is a real party in interest to the IPRs, and therefore 315A applies. [00:07:47] Speaker 01: I see it on one page in two sentences. [00:07:50] Speaker 01: I think that it's page 2371. [00:07:53] Speaker 01: But I don't see an analysis that goes with that. [00:07:57] Speaker 01: I see something that says, and also establish Amazon and its customers as RPIs. [00:08:03] Speaker 01: I also see something that says the actions of these parties establish that Amazon and its customers are RPIs. [00:08:08] Speaker 01: But those are, there's no discussion of the tailored factors with respect to whether Amazon is an RPI to their IPR. [00:08:18] Speaker 06: Yeah, I'm not going to sit here and tell you that the petition wasn't as good as it could be. [00:08:23] Speaker 01: It's not a petition, it's a motion to terminate. [00:08:25] Speaker 06: I'm sorry, the motion to terminate. [00:08:27] Speaker 01: But it's important, because you had the burden of proof [00:08:31] Speaker 01: And you took a particular theory, a different theory, and now you're arguing a totally different theory on appeal. [00:08:38] Speaker 01: So to tell me that it's not that good isn't going to answer my question or alleviate my concerns. [00:08:43] Speaker 01: I really think that you need to tell me where it is that you argued that Amazon was an RPI in the IPR. [00:08:52] Speaker 06: I think that if you look at the exhibits on the argument, we talk about what they told the court. [00:08:58] Speaker 06: And they told the court that Amazon was the real party in interest. [00:09:04] Speaker 06: Where? [00:09:05] Speaker 06: Where's that in there? [00:09:06] Speaker 06: It's attached as exhibits. [00:09:08] Speaker 03: We've got the record here. [00:09:10] Speaker 01: You're saying in Texas, you've got to be clear here. [00:09:14] Speaker 01: You're saying that they, being the Amazon customers, told the Texas court that Amazon was the real party in interest. [00:09:23] Speaker 01: Correct. [00:09:23] Speaker 01: In Texas. [00:09:25] Speaker 01: But that doesn't go to the theory [00:09:27] Speaker 01: I mean, maybe it does, but I don't see where you set forth a theory and an argument for why Amazon is a real party in interest to the IPR. [00:09:39] Speaker 01: So, like I said, the theory that you have here is a different one. [00:09:43] Speaker 06: Yeah, the theory that we're primarily saying is that Amazon was acting as a proxy. [00:09:50] Speaker 06: for the Amazon customers by filing the DJ. [00:09:54] Speaker 06: They filed a DJ in Virginia. [00:09:57] Speaker 06: The Amazon customers said Amazon's the real party and interest to this. [00:10:02] Speaker 06: I'll tell you the exact language they used. [00:10:05] Speaker 06: All the parties, including Booking.com, who's a petitioner in what they filed in Texas. [00:10:11] Speaker 03: Are you talking now about what's going on in Texas? [00:10:15] Speaker 06: I'm sorry, Your Honor. [00:10:16] Speaker 03: Are you talking about what's going on in Texas? [00:10:18] Speaker 03: Correct. [00:10:19] Speaker 03: Why does that have any bearing at all? [00:10:21] Speaker 06: Because in Texas, when you're sued for infringement, you have a choice. [00:10:25] Speaker 06: You have a choice. [00:10:25] Speaker 06: You can stay in the court and litigate it, or you can do an IPR. [00:10:28] Speaker 03: Texas lawsuits were brought by you. [00:10:30] Speaker 03: You were the plaintiff in Texas, right? [00:10:33] Speaker 06: Yeah. [00:10:33] Speaker 06: So the defendants have a choice. [00:10:35] Speaker 06: If they want to challenge validity, they can go to the patent office by filing an IPR within one year. [00:10:39] Speaker 03: And you did not name Amazon as a defendant? [00:10:42] Speaker 06: We did sue Amazon there. [00:10:44] Speaker 03: In Texas? [00:10:44] Speaker 06: Yeah. [00:10:46] Speaker 06: See, this is where they're wrong on the record. [00:10:48] Speaker 06: They listed the Amazon case as a related case in their petition. [00:10:52] Speaker 06: JEMSA versus Amazon in Texas for infringement. [00:10:57] Speaker 01: What's the chronology on that? [00:10:58] Speaker 01: When was Amazon sued? [00:11:01] Speaker 06: Amazon filed a D.J. [00:11:02] Speaker 06: in Virginia, and a few days later, they were sued in Texas. [00:11:06] Speaker 06: That's their motion to transfer it back. [00:11:07] Speaker 01: So just so I have an understanding, JEMSA sued. [00:11:12] Speaker 03: But Amazon did not file the IPR. [00:11:15] Speaker 03: Right? [00:11:16] Speaker 06: Correct. [00:11:16] Speaker 06: Well, not directly. [00:11:18] Speaker 03: They didn't file the IPR. [00:11:19] Speaker 06: They did not. [00:11:21] Speaker 03: Right. [00:11:21] Speaker 03: And your argument is somebody else filed it on behalf of Amazon? [00:11:26] Speaker 06: What I'm saying is Amazon is... See, that's the test that I think the patent officer... There's no evidence of that. [00:11:32] Speaker 06: No, I agree, but I think... I'm not saying that. [00:11:34] Speaker 06: I'm saying that they are the real party in interest with respect to this IPR. [00:11:39] Speaker 03: Why? [00:11:40] Speaker 03: It's all... Look... You can't point to a single item of behavior [00:11:46] Speaker 03: under the relevant factors of Amazon's behavior vis-a-vis the IPR proceeding. [00:11:53] Speaker 03: You said that earlier. [00:11:58] Speaker 03: You have no evidence that Amazon has lifted its finger vis-a-vis the IPRs. [00:12:04] Speaker 06: Right. [00:12:05] Speaker 06: I'm not saying they do, but having someone else file an IPR on the dispute where you say you're in the real party and interest. [00:12:12] Speaker 03: So it's a cat's boy. [00:12:13] Speaker 03: Well, they're the real party of interest in another case. [00:12:15] Speaker 06: Was there a real party interest in all this? [00:12:18] Speaker 03: If eBay and Alex Robert had just... Everyone who has an interest in having the patents invalidated... No, that's not the law. [00:12:26] Speaker 03: Why not? [00:12:27] Speaker 01: Well, how do you define them then? [00:12:28] Speaker 01: What are under the Taylor factors? [00:12:30] Speaker 01: I'm not... Like I said, I really have doubts whether you presented this argument below, okay? [00:12:35] Speaker 01: And I do think that... [00:12:38] Speaker 01: their relationship in the Texas case can matter. [00:12:41] Speaker 01: But I don't see where it's argued here. [00:12:44] Speaker 01: But what I want to know is why don't you walk through some of the Taylor factors with Amazon. [00:12:49] Speaker 01: So you say they have an interest. [00:12:51] Speaker 01: That's one. [00:12:52] Speaker 01: What is their relationship with the actual petitioners? [00:12:57] Speaker 06: With respect to the actual petitioners, the only petitioner that could potentially be involved is booking.com. [00:13:04] Speaker 06: Booking.com filed a motion in Texas saying that Amazon is the real party in interest, OK? [00:13:10] Speaker 01: OK, they don't have a real relationship. [00:13:11] Speaker 01: But you think that because of the way Booking.com went to Texas and explained that all the infringement allegations against us are based on Amazon's product, [00:13:25] Speaker 01: that that makes it so there's some sort of relationship between booking and Amazon. [00:13:29] Speaker 06: Absolutely. [00:13:30] Speaker 06: All I know is you've got booking.com, Amazon, and Expedia telling the Texas court, hey, Amazon's the real partner in interest. [00:13:37] Speaker 06: Validity should be decided in Virginia. [00:13:38] Speaker 01: We know the facts. [00:13:41] Speaker 01: Let me ask you something, OK? [00:13:43] Speaker 01: So my question is this. [00:13:46] Speaker 01: Now, later, gems are realized that booking actually wasn't an Amazon customer, right? [00:13:51] Speaker 06: I believe that's in the record, yes. [00:13:53] Speaker 01: Do you know when those infringement allegations were modified? [00:13:57] Speaker 06: This is what I can't understand from the record. [00:13:59] Speaker 06: Booking files their motion to stay saying that Amazon, it's all about them. [00:14:03] Speaker 06: OK? [00:14:04] Speaker 06: CHEMSA responds saying, no, it's not. [00:14:06] Speaker 06: Booking isn't doing it. [00:14:08] Speaker 06: CHEMSA, Booking replies and says, it's the same thing. [00:14:11] Speaker 06: The case will be decided by Amazon in Virginia. [00:14:16] Speaker 06: So it's very confusing. [00:14:17] Speaker 06: And when the judge stayed the case, he specifically treated booking.com as an Amazon customer. [00:14:24] Speaker 06: OK, so I'm not sure exactly what's going on with booking.com, but there is a filing by CHAMSA, which says that they are not accusing booking.com of using Amazon technology. [00:14:37] Speaker 01: Right, and it seems undisputed on this record that booking is not an Amazon customer. [00:14:43] Speaker 06: I think you're saying that they're not using Amazon technology. [00:14:46] Speaker 06: They have been involved with Amazon, but not with respect to the patent. [00:14:49] Speaker 06: Apparently, Amazon has different services. [00:14:50] Speaker 01: For purposes of this case. [00:14:53] Speaker 06: Yeah. [00:14:53] Speaker 06: You know like my time's almost up, but yeah Yes, it is yeah I think when you talk about the interest of real part of your response time, okay? [00:15:10] Speaker 04: Do you want to reserve the rest oh yes, I'll sit down oh [00:15:25] Speaker 02: Are you breaking up your argument? [00:15:27] Speaker 02: We are. [00:15:27] Speaker 02: I will do 11 minutes, and then Mr. Ramos will do four. [00:15:32] Speaker 02: I think the court hit the issue correctly in the first question it asked, which is the difference between petitioners and RPIs is important here. [00:15:39] Speaker 02: The petitioners are the parties that file the IPR. [00:15:41] Speaker 02: They control the IPR. [00:15:43] Speaker 02: They have the right to make arguments. [00:15:45] Speaker 02: They have the estoppel effects. [00:15:48] Speaker 02: They can control appeals. [00:15:50] Speaker 02: RPIs are listed parties that are different from petitioners. [00:15:52] Speaker 02: And I think the questions the court asked drove at that point. [00:15:55] Speaker 02: As Mr. Cantor admits, none of the petitioners have any relationship whatsoever with Amazon. [00:16:01] Speaker 01: Can I ask you this other question that I was asking about their motion to terminate? [00:16:05] Speaker 01: Sure. [00:16:06] Speaker 01: You know, the motion to terminate seems to me to only go to trying to show that Expedia, for example, and booking were parties to the declaratory judgment action in Virginia. [00:16:21] Speaker 01: Correct. [00:16:21] Speaker 01: And that's the only issue the board [00:16:23] Speaker 01: addressed in its opinion. [00:16:25] Speaker 01: Do you agree with my characterization? [00:16:27] Speaker 02: I do. [00:16:27] Speaker 02: I think the way that the argument was presented to the board, the board responded to it. [00:16:31] Speaker 02: And I think in the Western GECO case, this court actually said that's appropriate. [00:16:34] Speaker 02: In that case, it dealt with a control argument that was the focus of the arguments below. [00:16:38] Speaker 02: So the board was responding to the arguments GEMSA presented in its motions. [00:16:42] Speaker 03: Should we treat the decision by the board on the motion to terminate [00:16:49] Speaker 03: with regard to the question of whether or not Amazon should have been named a real private interest, with the subsilentio of the board saying, well, they didn't meet the first test under world insufficient pleading. [00:17:03] Speaker 02: Sure. [00:17:03] Speaker 03: I think, well, so first and foremost, I think the world's case is- Because there are a couple of sentences, or a couple of, I found two points in the motion where they say flat out Amazon should have been named. [00:17:16] Speaker 02: Correct. [00:17:16] Speaker 02: And I think the board does a little bit talk about Amazon as well. [00:17:19] Speaker 02: If you look, for example, at appendix 3491, which is in the board's first decision on this issue, it was paper number 58 in the joint captioned proceedings. [00:17:32] Speaker 02: At the top of that page, the board does talk about the fact that JEMSA has not shown that anybody relinquished control to Amazon. [00:17:39] Speaker 02: So the board was aware of the Amazon issue. [00:17:41] Speaker 02: And I think in our briefing as well, [00:17:43] Speaker 02: If I'm recalling in the red brief at page 47, we quoted some colloquy with the board during a phone call, which is of record, where the board is asking JEMSA's counsel almost the exact questions this panel just asked, which is, what evidence do you have that Amazon had any control over these proceedings at all? [00:18:01] Speaker 02: So I think the board was aware of the issue and responded in the order to the motion as presented. [00:18:06] Speaker 02: But the board was familiar with what the issue was and kind of drove this point home during the period before the motion was filed. [00:18:18] Speaker 02: Does that answer the question? [00:18:22] Speaker 02: So I do think it's important, again, to keep in mind that the petitioners and the RPIs are different analyses. [00:18:26] Speaker 02: And this court's precedent makes clear that the important analysis is, what's the relationship of an alleged RPI to a petitioner with respect to the petition? [00:18:36] Speaker 02: So in AIT, for example, at 897 Fed 1349, this court posed the question, just how close must the relationship between the real party in interest and the IPR petitioner [00:18:48] Speaker 02: or the petition be. [00:18:49] Speaker 02: So I think the court's questions that focus on the fact that the DJ actions are almost irrelevant to whether there's an RPI in the PTAB is exactly what's been contemplated by the EA. [00:18:59] Speaker 03: Almost irrelevant or irrelevant? [00:19:01] Speaker 02: I think it's irrelevant. [00:19:02] Speaker 03: Why do you say almost? [00:19:04] Speaker 03: I think that something worries you about the DJ action? [00:19:10] Speaker 02: I think in certain situations, if there was a DJ where the parties were found to be in some kind [00:19:14] Speaker 02: relationship outside of simply a customer being protected by a vendor, I can envision a situation where FACTS might support a better RPI argument, but here I think it's completely irrelevant. [00:19:24] Speaker 02: There's nothing in the record, as Mr. Cantor concedes, that Amazon had anything to do with anybody other than to file DJs to protect them. [00:19:31] Speaker 01: Would you agree that the outcome would be different if Expedia, for example, in fact, were a petitioner? [00:19:38] Speaker 01: I mean, wouldn't then Amazon would be a real party in interest, right? [00:19:41] Speaker 02: I don't think so. [00:19:42] Speaker 01: I think certainly. [00:19:42] Speaker 01: Why not? [00:19:43] Speaker 02: Because there's no evidence that Amazon had anything to do with Expedia's actions in the PTAB. [00:19:48] Speaker 01: But wouldn't they have a relationship? [00:19:50] Speaker 01: And Amazon's agreed to indemnify Expedia. [00:19:53] Speaker 01: I mean, that's not the situation you have here, but I'm surprised you wouldn't at least concede there that there'd be a colorable argument. [00:20:00] Speaker 02: I think there's a better argument. [00:20:01] Speaker 02: I don't think it's an argument that results in Amazon being an RPI. [00:20:04] Speaker 02: First of all, I don't think there's any relationship [00:20:07] Speaker 02: What's that? [00:20:08] Speaker 04: Your argument there is control. [00:20:10] Speaker 02: Right. [00:20:11] Speaker 02: I think control is an important one. [00:20:12] Speaker 02: I was going to say there's no relationship in the record between Amazon and this proceeding at all. [00:20:17] Speaker 02: And so we're not dealing with 315B, which talks about privity. [00:20:19] Speaker 02: We're dealing with 315A1, which is only RPI. [00:20:22] Speaker 01: You're saying in that example, there would have to be some evidence that Amazon funded it or that could provide some control, maybe in a deminification agreement that said that Amazon is going to be the one who's [00:20:34] Speaker 01: taking control over all litigation aspects, something like that? [00:20:37] Speaker 01: Correct. [00:20:38] Speaker 02: And even I think the case law says that funding in and of itself is not sufficient. [00:20:41] Speaker 02: So it would really have to be something that I think approaches control, which we don't have in the record here at all. [00:20:45] Speaker 02: Which is what RPI is about. [00:20:46] Speaker 02: Right. [00:20:47] Speaker 02: Agreed. [00:20:48] Speaker 02: Agreed. [00:20:49] Speaker 02: So I think that's where we come out with the Amazon issue. [00:20:51] Speaker 02: I thought I'd mention just the standard review to the questions about what the board did. [00:20:56] Speaker 02: This is a substantial evidence question in our mind. [00:20:58] Speaker 02: The board applied the arguments Jemzah made. [00:21:01] Speaker 02: Their finding was supported by substantial evidence. [00:21:03] Speaker 02: I don't think there's any reason to upset that. [00:21:05] Speaker 02: I also wanted to make it clear to the panel. [00:21:07] Speaker 02: I'm sure it came through in the briefing. [00:21:08] Speaker 02: But this was not a motion that was filed out of the blue. [00:21:11] Speaker 02: We engaged in substantial back and forth with the board and with GEMSA, providing voluntary discovery, everything they asked for we gave them. [00:21:18] Speaker 02: So the lack of evidence here is not because it wasn't produced. [00:21:21] Speaker 02: It's because it didn't exist. [00:21:22] Speaker 01: After the board issued its decision, which really primarily focused on [00:21:29] Speaker 01: whether those Amazon customers were parties to the declaratory judgment action. [00:21:37] Speaker 01: Did either party go back to the board and ask for clarification on that point or ask for more of an express ruling on whether Amazon was a real party in interest? [00:21:46] Speaker 02: No, in fact, the next time the board heard about the RPI issue was post-AIT and post-final decision when Gemma went back and said, hey, there's been a change in the law. [00:21:54] Speaker 02: We'd like to refile our motions under the new [00:21:57] Speaker 02: the new law, but we didn't go back. [00:21:58] Speaker 02: In our view, it was because the board addressed the arguments that JEMSA had made appropriately for the way that they were made. [00:22:03] Speaker 01: And then you had referred us earlier to page 83491 as where you thought that maybe that the board had touched on whether Amazon was a real party in interest. [00:22:12] Speaker 01: I, unfortunately, wasn't able to move through the appendix as quickly, and I don't know which sentence were you particularly relying on. [00:22:18] Speaker 02: So for example, the board in the sentence that starts on page 3490 is quoting an argument that patent owner made. [00:22:27] Speaker 02: where patent owners are arguing that there's been control relinquished to amazon.com. [00:22:30] Speaker 01: Yeah, but it's like it starts with the Taylor factors, because it's finding these parties to be real parties in interest. [00:22:38] Speaker 01: When you look at what their argument there, they're saying the real party is in interest to the territory judgment action. [00:22:45] Speaker 02: Right. [00:22:46] Speaker 02: But my point is, I think the board was considering the Amazon-related arguments that JEMSA had made. [00:22:51] Speaker 03: Where do I? [00:22:53] Speaker 03: draw out of 3491 that the board was focusing on the question of whether Amazon by itself should have been named IPR. [00:23:03] Speaker 03: That's what I thought you were citing 3491 for. [00:23:05] Speaker 02: Oh, I apologize. [00:23:06] Speaker 02: I was simply saying the board understood, I think, what it was GEMSA was arguing with regard to Amazon. [00:23:10] Speaker 02: And I think this panel's questions are correct. [00:23:13] Speaker 02: GEMSA is making a different argument here. [00:23:15] Speaker 02: But in the PTAB, GEMSA's primary argument was that Amazon should have been [00:23:21] Speaker 02: Control was ceded by Expedia to Amazon, and therefore, Amazon was improperly omitted from the RPI listing. [00:23:29] Speaker 02: Unless the panel has further questions, I have nothing more. [00:23:35] Speaker 02: Thank you. [00:23:38] Speaker 04: Your co-counsel can have your time. [00:23:40] Speaker 04: I assume you're seating it. [00:23:59] Speaker 05: Good morning. [00:24:00] Speaker 05: May it please the court. [00:24:01] Speaker 05: My name is Kerry Ramos. [00:24:02] Speaker 05: I'm here arguing on behalf of all the petitioners, but below, I was representing Alibaba. [00:24:10] Speaker 05: And I'm going to be very brief. [00:24:12] Speaker 05: Do you have an interest that deviates from eBay's? [00:24:16] Speaker 05: We do not. [00:24:17] Speaker 05: Nor do we have an interest that deviates from booking.com. [00:24:20] Speaker 05: Are you just sharing some argument? [00:24:22] Speaker 05: That's correct. [00:24:23] Speaker 05: As I said, I'll be brief. [00:24:26] Speaker 05: If the court has any further questions, I can answer them. [00:24:29] Speaker 05: I just wanted to make two points here. [00:24:33] Speaker 05: In the applications and internet time case, this court distilled the question of what is an RPI to an issue as to whether a non-party, quote, desires review of the patent [00:24:57] Speaker 05: and whether a petition has been filed at the non-party's behest. [00:25:04] Speaker 05: First of all, the evidence below, there were representations below, and there was also evidence, because discovery was granted, there was specific evidence that this petition was not brought at the behest of Amazon or with any influence from Amazon whatsoever. [00:25:22] Speaker 05: But I would also make the second common sense point. [00:25:27] Speaker 05: If the suggestion is that Amazon was somehow behind this petition, behind the scenes, even though there's no evidence in the record that it somehow should be, we should imagine there's some collusion that went on behind the scenes, that would have made absolutely no sense. [00:25:49] Speaker 05: Why would Amazon? [00:25:51] Speaker 05: create a 315A problem by filing a DJ action and then filing or having somebody at its behest file the IPRs. [00:26:03] Speaker 05: creating a 315A1 problem, which it could have avoided simply by reversing the order if Amazon is the puppet master behind the scenes deciding this. [00:26:13] Speaker 03: People make mistakes. [00:26:15] Speaker 03: Pardon me? [00:26:15] Speaker 03: Yeah, people make mistakes. [00:26:16] Speaker 03: As your co-counsel admitted, as your adversary counsel admitted in this case, he made some mistakes in his blueberry, giving people the wrong names. [00:26:25] Speaker 05: Lawyers make mistakes. [00:26:27] Speaker 05: Yes, Judge Clevenger. [00:26:28] Speaker 05: But if they made a mistake, that's their mistake. [00:26:33] Speaker 05: It's not the petitioner's mistake. [00:26:35] Speaker 05: It's not a mistake attributable to the petitioners or to the RPIs in this case. [00:26:40] Speaker 04: That's a red herring. [00:26:45] Speaker 05: I have nothing further. [00:26:47] Speaker 05: If the court has any further questions, I'd be happy to answer them. [00:26:59] Speaker 04: Mr. Gander, you have two minutes. [00:27:00] Speaker 06: Thank you, your honors. [00:27:01] Speaker 06: This court decided five cases after the motion to terminate. [00:27:05] Speaker 06: They did change the law regarding this. [00:27:07] Speaker 06: The court below, the panel below, just looked at control. [00:27:12] Speaker 06: We asked, can we brief this? [00:27:13] Speaker 06: You have five new cases. [00:27:15] Speaker 06: It changes the standard. [00:27:16] Speaker 06: They never let us brief it, period. [00:27:19] Speaker 06: This is our first opportunity to brief this new case law, period. [00:27:22] Speaker 06: We did not have a chance to do it below, and we should have had on this record. [00:27:26] Speaker 03: Well, that's talking about the merits. [00:27:29] Speaker 03: The merits of the case. [00:27:31] Speaker 06: As applied to the case? [00:27:32] Speaker 03: Under world, you don't get to argue the merits unless you cross the threshold. [00:27:36] Speaker 06: I think, see, this is one I don't understand. [00:27:39] Speaker 03: And you've said in your brief, it's a question of law, the facts are in dispute. [00:27:44] Speaker 03: You have brought forth no evidence, I mean zero, no evidence of any conduct by Amazon with regard to the IPRs. [00:27:53] Speaker 06: I don't see this is where I have great. [00:27:56] Speaker 03: I don't think you can. [00:27:57] Speaker 03: How can you say that you possibly passed muster on your world to get to America? [00:28:01] Speaker 06: I think the estoppel issue. [00:28:03] Speaker 03: Pardon me. [00:28:03] Speaker 06: The estoppel issue. [00:28:04] Speaker 06: Stop. [00:28:05] Speaker 03: How do you get? [00:28:06] Speaker 03: I'm sorry. [00:28:07] Speaker 03: How do you, what's your response? [00:28:09] Speaker 03: How do you get past the world test, the first test? [00:28:14] Speaker 03: You have to say. [00:28:14] Speaker 06: That's what I'm saying. [00:28:18] Speaker 06: I'm listening. [00:28:20] Speaker 06: OK. [00:28:20] Speaker 06: They told the court that Amazon was the real party in interest. [00:28:24] Speaker 06: That should get us over the threshold. [00:28:27] Speaker 06: You can't tell the court one thing under rule 11. [00:28:30] Speaker 03: They didn't say that they were the real party of interest in the IPR. [00:28:34] Speaker 06: Oh, so you can tell two courts different things? [00:28:36] Speaker 06: Sure. [00:28:37] Speaker 06: I don't believe that's true. [00:28:38] Speaker 03: The interest is- In what case do you have that proposition? [00:28:42] Speaker 03: That if you're a real party in interest in one case, you're a real party in interest in the next. [00:28:47] Speaker 06: If it's the same interest, and the same interest, according to them, was JEMSA's infringement claims against the Amazon technology. [00:28:56] Speaker 06: It's in every single one of their briefs. [00:28:59] Speaker 06: I don't think you can do that. [00:29:00] Speaker 06: And also, this is very interesting. [00:29:02] Speaker 06: I didn't find any law on whether you treat petitioners or RPIs differently in this analysis. [00:29:11] Speaker 06: And it seems that that's kind of some of the questions [00:29:14] Speaker 06: we're looking at today. [00:29:15] Speaker 06: The statute says a petitioner or an RPI files a DHA action. [00:29:20] Speaker 06: They are treated the same under 315. [00:29:22] Speaker 06: I don't think they should be treated differently under the new case decisions by this Court. [00:29:28] Speaker 06: Thank you. [00:29:29] Speaker 04: The matter will stand submitted.