[00:00:00] Speaker 02: Is council here for Jerry Harvey audio holding against 1964? [00:00:06] Speaker 02: Please come forward. [00:00:31] Speaker 02: Okay, this is appeal number 18, 1299. [00:00:33] Speaker 02: Jerry Harvey, audio holding against 1964 ears. [00:00:39] Speaker 02: Mr. Ravitcher. [00:00:44] Speaker 01: Thank you, Your Honors. [00:00:45] Speaker 01: Good morning. [00:00:46] Speaker 01: May it please the Court? [00:00:47] Speaker 01: Appellant is satisfied to rest on their briefs. [00:00:50] Speaker 01: If the Court has any questions, we'd be more than delighted to answer them. [00:00:54] Speaker 02: Any questions for Mr. Ravitcher? [00:00:57] Speaker 02: Any questions? [00:00:58] Speaker 01: The only one issue I would like to just address briefly that they raise in their reply in their opposition brief that we didn't fully address is the adequacy of our notice of appeal under rule of procedure 15. [00:01:11] Speaker 01: That rule only requires we identify the order we're appealing from, which is the final written decision here, which is exactly the same as in applications for internet time, which is the principal case we rely on for their inadequacy of identifying the real partisan interest. [00:01:23] Speaker 01: Rule 30 is the rule that requires us to identify the issues. [00:01:26] Speaker 01: They can see we did that at the time that we designated the materials for the appendix. [00:01:31] Speaker 01: Any further questions? [00:01:32] Speaker 01: Thank you, Your Honor. [00:01:42] Speaker 02: Thank you. [00:01:42] Speaker 02: Ms. [00:01:43] Speaker 02: Holman. [00:01:44] Speaker 00: Thank you, Your Honor. [00:01:44] Speaker 00: May it please the court. [00:01:49] Speaker 00: I would just like to briefly address, since Mr. Ravisher said that they were appealing from the final written decision in this case, that one of the major issues that's up on this appeal is whether there was an appropriate determination by the board under Section 312A2 of the AIA concerning the real parties in interest. [00:02:11] Speaker 00: That decision was made only in the institution decision in this case, and they cited [00:02:18] Speaker 00: There's been citation to the RPX case as well as the Wi-Fi 1 on Bonk case, both of which concern section 315B, which is the time bar. [00:02:26] Speaker 03: You can't appeal from the institution decision. [00:02:28] Speaker 03: The question is whether that issue became part of the final decision. [00:02:32] Speaker 03: It's a separate question. [00:02:34] Speaker 00: Yes, Your Honor. [00:02:35] Speaker 00: And that issue did not become part of the final written decision because the patent owner did not re-raise that argument in their patent owner response. [00:02:42] Speaker 00: It was only in the patent owner preliminary response to which the petitioner had no right of response. [00:02:47] Speaker 00: The petitioner was not allowed to respond. [00:02:50] Speaker 00: And the board did not rule on it in the final written decision because it was not preserved. [00:02:54] Speaker 00: There are CFRs that regulate the aspect that if you want to actually have a particular outcome, you have to raise it in your patent owner response. [00:03:03] Speaker 00: And they did not. [00:03:05] Speaker 00: So the 312A2 determination in this case was only in the institution decision. [00:03:10] Speaker 00: And considering Mr. Ravitcher arrested on the briefs with respect to everything else, petitioner will as well, unless the court has any questions. [00:03:21] Speaker 00: Thank you. [00:03:21] Speaker 02: OK. [00:03:23] Speaker 02: Thank you, Mr. Ravitcher. [00:03:25] Speaker 02: There isn't very much to rebut. [00:03:28] Speaker 02: You have a few minutes, but no new issues. [00:03:32] Speaker 01: Yes, Your Honor. [00:03:32] Speaker 01: 312A2 is a jurisdictional issue, so it can be raised at any time. [00:03:37] Speaker 01: It would have been futile to re-raise it in our patent-owner response because we had made a motion for discovery, which petitioner objected to, the board denied. [00:03:46] Speaker 01: It would have just been a waste for us to repeat verbatim the same arguments with the same evidence we relied on in our preliminary response to just repeat it in our patent-owner response. [00:03:55] Speaker 01: So there was no waiver there by not putting it there, just requiring the board. [00:04:00] Speaker 03: address the real party interest issue, even in the context of a time bar where it wasn't raised as part of the argument after the initiation? [00:04:09] Speaker 01: The only time I'm aware of this court addressing real party interest issues as they relate to IPRs is the applications for internet time case and the World v. Bungee case, which World v. Bungee says that 312A to compliance is an important issue. [00:04:25] Speaker 03: And the statutes claim... But aren't those cases in which the issue was raised as part of the argument after the initiation? [00:04:33] Speaker 03: I believe that's correct, Your Honor, but it's... So you're not able to show us any case where we've addressed the issue when it wasn't raised after the initiation? [00:04:44] Speaker 01: That particular issue, no. [00:04:46] Speaker 01: But for example, there are other issues that the court has addressed, including intervening changes of the law, like SAS and our motion for remand. [00:04:54] Speaker 01: to deal with the uninstituted grounds where they correctly say we did not raise that in our patent owner response, but we're nonetheless entitled to raise it on appeal. [00:05:03] Speaker 01: We believe 312A is a jurisdictional issue. [00:05:06] Speaker 01: It goes to the institution decision. [00:05:08] Speaker 01: The board had no jurisdiction to issue its final written decision because the petitioner strategically chose to wait till the last minute to file their petition. [00:05:17] Speaker 01: They couldn't correct it to add the real parties in interest, which are clearly real parties in interest under the application internet time case. [00:05:24] Speaker 01: given the evidence that we submitted regarding the owner, the single owner of these two LLCs and the pseudonym similar incorporated company. [00:05:34] Speaker 01: So we don't believe that it was necessary or would be a judicial use of the board's time to re-raise the exact, I mean we literally could have copied and pasted exactly what we wrote in preliminary response and the board could have copied and pasted exactly [00:05:50] Speaker 01: what they wrote in the institution decision over denying or disagreeing with us on that issue, that'd be just a waste of time and effort. [00:05:58] Speaker 03: There was no record for us to open. [00:06:01] Speaker 03: On this question of the requested remand to address the uninitiated grounds, in the BASF case, we've said we're not going to do that unless you, as the patent owner, show it would make a difference. [00:06:18] Speaker 03: Have you made such a showing here? [00:06:20] Speaker 01: Yes, because we show in our briefs why the underlying obviousness determination wasn't supported by substantial evidence. [00:06:27] Speaker 01: Therefore, this court should reverse that decision. [00:06:29] Speaker 03: Yeah, but you're not addressing my question. [00:06:32] Speaker 03: How are you adversely affected? [00:06:35] Speaker 03: BASF says you have to be adversely affected. [00:06:38] Speaker 03: How are you adversely affected by the failure to address the uninitiated crime? [00:06:43] Speaker 01: The exact same reasons all patent owners are adversely affected by the failure to address uninstated grounds, which this court said in Polaris and PGS and Amazon and other cases where it said this cloud on the, this allows them to get the second bite at the apple at the district court that Congress expressly does not want them to have, which the court discussed in AIT, why it's important to name the real parties in interest so they can't then raise those uninstituted grounds when we go back to the district court. [00:07:11] Speaker 01: because the estoppel doesn't attach to the uninstituted grounds. [00:07:16] Speaker 01: There's no unique harm to us as a patent owner that's different than the harm to all other patent owners, which is why we cite verbatim the quote from the court's decisions identifying the harm to patent owners from the patent office's failure to institute on all grounds. [00:07:31] Speaker 01: There's nothing special about the harm to us. [00:07:36] Speaker 02: Any more questions? [00:07:38] Speaker 02: Any questions? [00:07:39] Speaker 02: Okay. [00:07:40] Speaker 02: Thank you. [00:07:41] Speaker 02: Thank you both. [00:07:42] Speaker 02: The case is taken under submission.