[00:00:00] Speaker 04: So seven, power integrations versus semiconductor components. [00:00:49] Speaker 04: Good morning. [00:00:50] Speaker 02: Good morning. [00:00:51] Speaker 04: Can I just ask you, before you get into your argument, I just want to know what the status is of this corresponding district court litigation going on in this case. [00:01:02] Speaker 04: And I know there was a remand on damages. [00:01:05] Speaker 04: Is there anything going on in that case that we ought to know about? [00:01:08] Speaker 02: We were just in front of Judge Chesney, actually, last week. [00:01:13] Speaker 02: And so she recognizes the case has been remanded to her. [00:01:17] Speaker 02: She was unaware this case was being argued today. [00:01:19] Speaker 02: And basically, we agreed to report back. [00:01:22] Speaker 02: So she hasn't yet scheduled the case for further proceedings. [00:01:26] Speaker 04: Is it officially stayed or she's just? [00:01:28] Speaker 02: It's not officially stayed. [00:01:29] Speaker 02: And in fact, what we agreed to do was to get back to her with a status after this argument and or the opinion in this case, depending on how long it takes. [00:01:40] Speaker 02: OK, thank you. [00:01:41] Speaker 04: You can proceed now. [00:01:42] Speaker 02: OK. [00:01:44] Speaker 02: I'd like to start with and spend most of my time on the Section 315B issue, because I think it cuts across. [00:01:53] Speaker 02: Well, it potentially obviates the other issue in this appeal and actually affects a large number of other appeals on this court's docket. [00:02:00] Speaker 02: And on that, I'd like to start with what the legal framework is. [00:02:04] Speaker 04: But we haven't decided this issue, right? [00:02:06] Speaker 04: The issue of the 315B issue about the filing versus the institution? [00:02:10] Speaker 02: You have not. [00:02:11] Speaker 02: You have not. [00:02:11] Speaker 04: Are you aware of cases that have actually been argued that are pending decision in our court that present that issue? [00:02:17] Speaker 04: Or are you just talking about all these other IPRs that you all have? [00:02:21] Speaker 02: So two questions there. [00:02:23] Speaker 02: I'm not aware of a pending case that has that specific issue. [00:02:28] Speaker 02: When I say legal framework, I'm referring to the court's two recent opinions, applications, and internet time. [00:02:33] Speaker 02: I believe Judge Raina sat on that panel, and the World's case, which Your Honor sat on, which addressed the 315B framework, how do we approach assessing what privity and real party and interest is, what evidence do you look at, what are the burdens, and so forth. [00:02:50] Speaker 04: But you're... This is a different issue. [00:02:52] Speaker 04: This is really construing these words. [00:02:54] Speaker 02: It is. [00:02:55] Speaker 02: It is a statutory construction issue. [00:02:58] Speaker 02: There are a couple of... I think there's at least three really important stakes, really, to put in the ground here. [00:03:03] Speaker 02: Now, number one, as both those cases, applications, and internet time and worlds emphasize, the burden is on the petitioner to show that it has standing. [00:03:14] Speaker 02: The burden is not on the patent owner to show that there's a privity problem. [00:03:20] Speaker 02: And in this case, clearly the board reversed that burden. [00:03:24] Speaker 02: And if you go look at the two board cases that this board cites to, the Harris case [00:03:30] Speaker 04: That goes to, we can go one of two ways in this case, which I think you're suggesting. [00:03:36] Speaker 04: Either we agree with you on the statutory construction point, end of story, well, leaving aside all these other issues of inclusion, or we say at a minimum there was enough to require discovery here in terms of the facts that were raised. [00:03:51] Speaker 04: So is that your point? [00:03:52] Speaker 04: Correct. [00:03:53] Speaker 02: And there's actually a third thing, right? [00:03:55] Speaker 02: So if we're right on statutory construction, everyone agrees we win. [00:03:59] Speaker 02: This IPR is barred. [00:04:00] Speaker 04: Except for their preclusion issues, right? [00:04:03] Speaker 04: Like whether you were precluded. [00:04:04] Speaker 02: OK. [00:04:04] Speaker 02: And we could talk about that separately. [00:04:07] Speaker 02: Yes. [00:04:09] Speaker 02: Then the second point is, yes, at a minimum, and we made this argument below, we at least made a showing that we should have been entitled to discover. [00:04:19] Speaker 02: I mean, to say on this record that we were merely speculating [00:04:23] Speaker 02: that Ahn was behaving on behalf of the Fairchild is fairly remarkable, and I can go through that evidence. [00:04:29] Speaker 04: You mean even if the filing is as of the filing? [00:04:31] Speaker 02: Even if it's as of the filing. [00:04:33] Speaker 02: Even if it's as of the filing. [00:04:34] Speaker 02: I mean, look at what we had as of that date. [00:04:37] Speaker 02: We had a confidentiality agreement between the parties that acknowledged a common legal and commercial interest. [00:04:45] Speaker 02: We had a definitive merger agreement between the parties. [00:04:49] Speaker 02: We have... No, I understand. [00:04:50] Speaker 02: Okay, okay, all that. [00:04:51] Speaker 03: So go back to statutory... Wait, did you have a third option? [00:04:54] Speaker 03: I thought I heard you say a third option. [00:04:57] Speaker 02: The third option is even if you look only at the time of the filing of the petition, the evidence as of that time we think is sufficient to show privity or proxy relationship. [00:05:11] Speaker 03: So you're saying you don't even need discovery. [00:05:13] Speaker 03: You think right now there's... I do. [00:05:15] Speaker 02: I do, in view of this court's cases and in view of the backdrop here, I think we should win. [00:05:23] Speaker 02: So let me get back. [00:05:26] Speaker 01: So let's get back to the evidence. [00:05:29] Speaker 01: You refer to the agreement. [00:05:32] Speaker 01: Basically, that was an agreement to agree sometime in the future. [00:05:37] Speaker 01: That was not a fully executed contractual agreement. [00:05:42] Speaker 02: Well, not entirely sure. [00:05:44] Speaker 02: I mean, both of the agreements were certainly fully executed. [00:05:47] Speaker 02: The merger hadn't happened yet. [00:05:48] Speaker 02: If you're talking about the merger agreement. [00:05:52] Speaker 02: Well, that's true. [00:05:53] Speaker 02: But in a way, it's hard to see why the formal closing of the merger should be a sine qua non, right? [00:06:02] Speaker 02: We can all agree. [00:06:03] Speaker 02: And in fact, we agree in this case, once it closed. [00:06:06] Speaker 01: Well, it's because at some point, if they do close, then you're going to argue, [00:06:10] Speaker 01: Look, they closed on this merger, they're merged, and therefore that's dispositive. [00:06:15] Speaker 01: Well, if they haven't merged, why don't we look at it the other way? [00:06:20] Speaker 02: Well, I think you have to look at it both ways, Your Honor, is my point. [00:06:23] Speaker 02: So once it's closed, that's a bookend. [00:06:26] Speaker 02: Once the merger closes, there's no question we have a real party and interest, a privity, a proxy relationship, game over. [00:06:33] Speaker 02: The question is, if you look earlier in time, [00:06:36] Speaker 02: Once the agreement to merge is entered, and we have all these other facts as well, are the parties behaving even then one as a proxy for the other? [00:06:46] Speaker 02: And just as a practical matter and a common sense matter, the answer I think is, of course they are. [00:06:51] Speaker 02: The merger is entered on the assumption these regulatory approvals are going to happen. [00:06:56] Speaker 02: You wouldn't enter a 136 page definitive merger agreement if you didn't think you were going to get Chinese regulatory approval or US regulatory approval. [00:07:06] Speaker 02: In the meantime, how are the parties behaving? [00:07:09] Speaker 02: They're behaving as though that's going to happen. [00:07:12] Speaker 02: And Ahn, in this case, clearly is acting on behalf of Fairchild to set aside and to wipe out this particular IPR and 11 others. [00:07:21] Speaker 02: I mean. [00:07:22] Speaker 02: Can we move back to the statutory? [00:07:23] Speaker 04: Because I think you've responded to it. [00:07:25] Speaker 04: OK. [00:07:26] Speaker 04: But on the statute, you've got two potential options here. [00:07:31] Speaker 04: Statute unambiguous, you win. [00:07:33] Speaker 04: Right. [00:07:33] Speaker 04: Or statute ambiguous. [00:07:36] Speaker 04: But we can't defer to the PTAB here because you would lose under that kind of deference to the non-precedential poor decisions here. [00:07:46] Speaker 04: So where do we go if it's ambiguous? [00:07:51] Speaker 02: Two things on that. [00:07:51] Speaker 02: First of all, even Ahn argues it's not ambiguous. [00:07:55] Speaker 02: So both parties are in front of you saying it's clear. [00:07:57] Speaker 02: Yeah, but we get to decide that no matter what. [00:07:59] Speaker 02: Of course. [00:08:00] Speaker 03: And also, they have very different views about it. [00:08:02] Speaker 02: That's true. [00:08:03] Speaker 03: Which might suggest ambiguity. [00:08:05] Speaker 02: We wouldn't be here. [00:08:06] Speaker 02: Otherwise, would we? [00:08:07] Speaker 02: No, but there's still no deference, even if you look to the PTAB's interpretation, because number one, their regulation, in relevant part, just parrots the statute. [00:08:20] Speaker 04: OK, so we accept that. [00:08:22] Speaker 04: OK, so your position is there's no deference to the regulation, and there's no deference to the PTEP? [00:08:29] Speaker 02: Right, and there's no deference for two reasons. [00:08:32] Speaker 02: Number one, it's merely a parroting regulation. [00:08:35] Speaker 02: And the court in ACWA products specifically addressed that and said, look, if the regulation at issue is merely repeating what the statute says, you don't get deference for that. [00:08:45] Speaker 03: What about the non-precedential decisions? [00:08:48] Speaker 03: Didn't they analyze that? [00:08:50] Speaker 02: I'm sorry. [00:08:54] Speaker 03: The board's non-precedential decisions that interpret the statute, would they get any sort of our deference? [00:09:01] Speaker 02: No, because an interpretation of a regulation that itself is simply parrots, it's just one step removed. [00:09:11] Speaker 02: It doesn't get any. [00:09:13] Speaker 04: What if the PTAB in these non-precedential decisions analyzed the statute? [00:09:17] Speaker 04: Forget the reg. [00:09:18] Speaker 04: They're looking at the statute. [00:09:19] Speaker 04: They've got to decide. [00:09:20] Speaker 04: They say statute means time of filing. [00:09:23] Speaker 04: That's the operative time frame. [00:09:24] Speaker 04: Do we have to defer to that? [00:09:26] Speaker 02: Absolutely not. [00:09:28] Speaker 02: Well, because this court doesn't defer to an agency's determination of its own authority, its own statutory authority. [00:09:36] Speaker 02: That's Wi-Fi 1. [00:09:37] Speaker 02: That was the key takeaway from the Wi-Fi 1 case. [00:09:40] Speaker 02: It's sort of the fox guarding the hen house, right? [00:09:43] Speaker 02: You can't have an agency [00:09:45] Speaker 02: telling you what their statutory jurisdiction is, and then coming in front of you and saying, you have to defer to me on what I'm telling you my statutory jurisdiction is. [00:09:53] Speaker 04: And the case there is? [00:09:54] Speaker 02: It's Wi-Fi one. [00:09:55] Speaker 04: But hasn't the Supreme Court spoken on virtually every aspect of this deference question? [00:10:01] Speaker 04: You don't know the, OK. [00:10:02] Speaker 02: Well, they've spoken most clearly, the SAS case, most clearly dealt with the issue of where the statute is clear and unambiguous. [00:10:11] Speaker 02: There's no deference. [00:10:13] Speaker 04: So let's go back to figuring out whether it's ambiguous or unambiguous. [00:10:18] Speaker 04: But you say, I'm sorry, at the end of the day, you say there's nothing to defer to here. [00:10:22] Speaker 02: Correct. [00:10:23] Speaker 04: So we've got an ambiguous question, and therefore it's up to the court to decide the best reading of the study. [00:10:29] Speaker 02: Absolutely. [00:10:30] Speaker 02: Absolutely. [00:10:30] Speaker 04: And I think that... But why is this, assuming we're there, why is this necessarily the best reading? [00:10:38] Speaker 04: For example, we all know what the filing date is. [00:10:41] Speaker 04: This institution date is kind of fluid. [00:10:44] Speaker 04: I mean, where is the policy if we're going to play policy today? [00:10:47] Speaker 04: What is the policy? [00:10:49] Speaker 04: And we don't know when they're going to institute. [00:10:50] Speaker 04: So if the merger is complete on Monday, they could institute on Tuesday. [00:10:54] Speaker 04: They could have instituted on the previous Friday. [00:10:57] Speaker 04: That seems kind of an arbitrary thing, therefore, on which to hinge this. [00:11:02] Speaker 02: You look at both is the answer, right? [00:11:04] Speaker 02: I mean, so I think the real issue here is why should the board acting in a quasi-judicial capacity [00:11:11] Speaker 02: put the blinders on, and look only at one point in time, and consider nothing else that has happened up to the point of their decision. [00:11:20] Speaker 02: And the policy answer to that is very clearly in our favor, because the legislative history is very clear. [00:11:27] Speaker 02: Congress intended to prevent serial attacks on patents. [00:11:34] Speaker 02: That's what's going on here. [00:11:35] Speaker 02: This is attack number four on this patent. [00:11:38] Speaker 02: And Ahn actually agrees the legislative history, quote, describes a policy in favor of preclusion. [00:11:46] Speaker 02: So we all agree what Congress is trying to do here. [00:11:49] Speaker 02: And what the board is doing with its interpretation is frustrating that policy. [00:11:54] Speaker 03: And I was just going to ask you, you said you look at both the time of filing and the time of institution. [00:12:01] Speaker 03: Yes. [00:12:01] Speaker 03: But I think what you might actually be saying is you look in your test [00:12:05] Speaker 03: through the entire institution stage and see if that condition in 315B is met at any point prior to institution. [00:12:14] Speaker 02: That is exactly correct. [00:12:15] Speaker 02: And in fact, that is what, again, the Wi-Fi 1 court en banc said, timeliness may be decided fully and finally at the institution stage. [00:12:27] Speaker 02: So the court, I think, has already answered this question. [00:12:29] Speaker 03: You look at the- Not really, because we weren't considering this exact question in front of us. [00:12:34] Speaker 02: OK. [00:12:35] Speaker 02: Well, I would say it's at least consistent with that observation in Wi-Fi 1. [00:12:39] Speaker 02: And I guess what I'm saying, let me go back to the bookend thing, OK? [00:12:42] Speaker 02: Back to Judge Raina's question. [00:12:44] Speaker 02: I mean, if the question can be answered definitively at institution, it should be. [00:12:50] Speaker 02: If it can be answered definitively at filing, I mean, we think this is such a case. [00:12:54] Speaker 02: There may be other cases where, look, you can look just at, excuse me, filing. [00:12:59] Speaker 02: And you can look at filing and say, they were in privity at filing. [00:13:03] Speaker 02: Fine. [00:13:03] Speaker 04: But what about after that? [00:13:05] Speaker 04: I mean, one of the things you rely on is this regulation for the board that says that you've got to tell the PTAB, notify the PTAB that there's a change in status. [00:13:15] Speaker 04: That doesn't end an institution. [00:13:16] Speaker 04: That's an ongoing requirement, right? [00:13:19] Speaker 04: So why, under your theory of what we're trying to accomplish here, what if the merger went through? [00:13:25] Speaker 04: Let's forget your other argument that what was going on was enough. [00:13:29] Speaker 04: But let's assume it wasn't. [00:13:30] Speaker 04: and the merger goes through a week after institution. [00:13:35] Speaker 04: The regulations say somebody's supposed to notify the PTEL of that. [00:13:38] Speaker 04: But even under your reading of the statute, that isn't going to destroy, that's not going to be a problem. [00:13:45] Speaker 02: That's true. [00:13:46] Speaker 02: And the answer lies in the text of the statute. [00:13:49] Speaker 02: The statute says, not the regulation, which is different in this respect, the statute says review may not be instituted. [00:13:57] Speaker 02: Instituted, OK? [00:13:58] Speaker 02: It doesn't say that once you've instituted, if you've instituted at a time when there's no bar, it doesn't say, well, later if a bar arises, then we have to dismiss. [00:14:07] Speaker 02: So that's a red herring with all due respect. [00:14:10] Speaker 02: I know Ann makes that argument. [00:14:11] Speaker 02: But read the statute. [00:14:12] Speaker 02: The statute is very clear. [00:14:15] Speaker 02: And it at least counts under the statute what the state of the world is at institution. [00:14:21] Speaker 03: So you're just, one thing that I was thinking is that it is potentially a limit. [00:14:27] Speaker 03: on the PTO's power to institute. [00:14:30] Speaker 03: But you're right, it doesn't say it may not proceed or it's barred. [00:14:33] Speaker 03: What do you make of the fact that, and I don't even know if this even matters, but 315A1 says, inter-parties review barred by civil action. [00:14:45] Speaker 03: That's a different language. [00:14:46] Speaker 03: You don't have that same introductory language here. [00:14:49] Speaker 03: It just says, patent owner's action. [00:14:52] Speaker 03: Do you think it makes a difference? [00:14:53] Speaker 03: Is there supposed to be some difference in how [00:14:55] Speaker 03: 315A1 is read where it says it's barred by civil action. [00:15:00] Speaker 03: The next sentence says an inner party's review may not be instituted. [00:15:04] Speaker 03: But before that, it talks about barring. [00:15:08] Speaker 02: The language is different. [00:15:09] Speaker 02: I'm not sure the substantive outcome is different, because 315B says the barring event is that the party or the privity was served with a complaint [00:15:21] Speaker 02: more than one year prior. [00:15:22] Speaker 02: So ultimately, they both relate to what happened in a prior civil action. [00:15:28] Speaker 02: I confess I haven't put them side by side and thought super carefully about whether there's some nuance that matters here. [00:15:35] Speaker 02: I don't think there's anything in the text of 315A that changes the outcome under 315B based on our arguments. [00:15:44] Speaker 04: Can we move on then to the sort of sub-issue part of this, which is [00:15:48] Speaker 04: Leaving waivers side, so let's assume they didn't waive their argument. [00:15:53] Speaker 04: What about the preclusion issue that's been raised in the papers here? [00:15:59] Speaker 04: The other IPRs hanging out there, at least one of which, you didn't appeal the identical 315B ruling. [00:16:08] Speaker 02: So fundamentally, there's sort of two responses to that. [00:16:11] Speaker 02: One is that this is an argument they could have put in their main brief and didn't. [00:16:15] Speaker 04: No, no, no. [00:16:16] Speaker 04: Oh, OK. [00:16:17] Speaker 04: You want to put that to one side. [00:16:18] Speaker 04: I understand your argument about that. [00:16:20] Speaker 04: We'll evaluate it, obviously. [00:16:21] Speaker 04: But leave that aside. [00:16:23] Speaker 02: So issue preclusion is inequitable. [00:16:25] Speaker 02: It's an equitable court-created doctrine. [00:16:28] Speaker 02: And there are well-recognized exceptions to issue preclusion. [00:16:31] Speaker 04: So what's your exception? [00:16:33] Speaker 02: It's the inadequate incentive to litigate this issue to the end in every single IPR where it has arisen. [00:16:41] Speaker 02: And in particular, so there are eight. [00:16:44] Speaker 02: Count them. [00:16:45] Speaker 02: Eight. [00:16:46] Speaker 02: pending appeals in front of this court that hinge on this privity determination. [00:16:51] Speaker 02: And they have found one in which we did not choose to appeal because there were multiple IPRs on that patent. [00:16:58] Speaker 02: That's the 457 patent. [00:17:01] Speaker 02: And the particular claims in that particular IPR on that patent were really not strategically, let me put it that way, important. [00:17:09] Speaker 04: I understand your argument. [00:17:09] Speaker 04: I'm just wondering, we're here at the appellate level. [00:17:12] Speaker 04: Yes. [00:17:12] Speaker 04: And your argument suggests that we as an appellate court [00:17:15] Speaker 04: than have to do kind of a fact-based weighing of the equities here? [00:17:21] Speaker 04: I mean, if you're saying determining whether or not there was an incentive, that's a kind of difficult question to answer at the appellate level, is it not? [00:17:30] Speaker 02: Well, I do think ultimately, well, I won't deny it may. [00:17:36] Speaker 02: You have to look at the facts, I think, to exercise your discretion. [00:17:40] Speaker 02: But this court ultimately makes the call on whether there's preclusion or not. [00:17:44] Speaker 02: That's a legal issue. [00:17:45] Speaker 02: And in fact, the court has done it in other cases, and indeed has addressed that issue, and indeed has done it in the cases on sites, this B&B Hardware case, the Max Linear case. [00:17:56] Speaker 02: And those cases are actually pretty instructive, because Max Linear in particular, which they think is their best case, there was preclusion there, because in the prior IPR, another panel of this court had affirmed that the two claims at issue were invalid. [00:18:15] Speaker 02: judicial review by this court of the issue. [00:18:18] Speaker 02: Here, they want to apply issue preclusion, which is, again, an equitable doctrine, to prevent you from addressing the issue ever. [00:18:27] Speaker 02: So if you go with them on issue preclusion, they're saying, you can't address it in this IPR, and you're going to have the same argument in the other seven IPRs. [00:18:35] Speaker 02: You can't ever address this issue. [00:18:39] Speaker 04: And then moving finally onto the waiver piece of this. [00:18:44] Speaker 04: Their brief was ready to go. [00:18:46] Speaker 04: I assume it was at the printers by the time they realized this issue. [00:18:51] Speaker 04: Why are they precluded from them coming back to the court at some subsequent time before we reach our decision and bringing this to our attention? [00:19:00] Speaker 02: Well, I guess, again, that ultimately is a discretionary call. [00:19:04] Speaker 02: And it's up to the court, right? [00:19:06] Speaker 02: And I guess I would say it's sauce for the goose is sauce for the gander. [00:19:09] Speaker 02: If on the one hand, they want a mulligan on that, [00:19:12] Speaker 02: And they were one day late or two days late or whatever. [00:19:15] Speaker 02: OK, fine. [00:19:17] Speaker 02: But then why should we be held to a particularly strict application of issue preclusion where there is a recognized exception to its application where you didn't have an incentive to pursue every issue in every appeal to the end, and where the result of it would be, again, depriving this court of the ability to ever review the issue? [00:19:38] Speaker 04: Well, what if this had come out the day after they filed their brief? [00:19:42] Speaker 04: Where would you be on the waiver, would you say? [00:19:45] Speaker 04: I mean, they filed something subsequently, more recently. [00:19:48] Speaker 04: So what if it had come out the day after they filed their red brief? [00:19:51] Speaker 04: What, in your view, would they have had to do in order to avoid waiver? [00:19:54] Speaker 02: Well, I think there probably wouldn't be a waiver argument then. [00:19:57] Speaker 02: I think we would not have a waiver argument in that scenario, candidly, right? [00:20:02] Speaker 02: I mean, the point is they could have raised it. [00:20:05] Speaker 02: They didn't. [00:20:06] Speaker 02: It's ultimately a super technical argument, which is the argument they're trying to ring us up on. [00:20:12] Speaker 02: So I guess we're just pointing out the flip side of the coin. [00:20:17] Speaker 02: And there's all sorts of reasons why this court should reach the issue. [00:20:20] Speaker 02: I know I'm well over here. [00:20:22] Speaker 04: Anything further? [00:20:23] Speaker 04: Thank you. [00:20:24] Speaker 04: We'll reserve some rebuttal for you. [00:20:25] Speaker 02: Thank you. [00:20:34] Speaker 04: Just to accord the same courtesy to you, did you have anything to add to Mr. Schirkermark's update to us on what was going on in the district court? [00:20:42] Speaker 00: No, Your Honor, we agree. [00:20:43] Speaker 00: The district court hasn't formally stayed, but is looking to see what happens. [00:20:48] Speaker 04: OK, thank you. [00:20:51] Speaker 00: Good morning. [00:20:51] Speaker 00: Representing Semiconductor Components Industries, or SCI, which was a company that, based on its interest in its own products, brought this IPR [00:21:01] Speaker 00: in order to keep the public in possession of technology that is disclosed and suggested in the prior art. [00:21:09] Speaker 00: But I certainly understand that the panel seems particularly interested in the 315b issues. [00:21:14] Speaker 00: So I'll start there and happy to entertain your questions. [00:21:17] Speaker 00: I think, obviously, the key point that the panel raises is, let's look at the statutory text. [00:21:23] Speaker 00: And I'll note that my colleague, in presenting the statutory text, actually stops before the word if. [00:21:31] Speaker 00: If you look at 315B, 315B is divided and says that you're not going to institute if and then gives the condition. [00:21:41] Speaker 00: And the question is, before the court is, what is the date you look at in assessing that condition? [00:21:48] Speaker 00: So it's rather strange to make a statutory argument and ignore that actual text, the text of the condition for the bar. [00:21:55] Speaker 00: And if you look at the text of the condition for the bar, [00:21:59] Speaker 00: You'll see, as the board pointed out in its decision, that the only date referred to in the condition is the file date, is filed. [00:22:09] Speaker 00: That's the date pointed out in the language that actually goes to the condition. [00:22:14] Speaker 03: What about the may not be instituted language that arguably limits the PTO's power to institute? [00:22:22] Speaker 03: The PTO and Interparters Review may not be instituted if. [00:22:28] Speaker 03: And then what if that condition is, why would the PTO be able to say, well, we can institute now because this condition was met at the time of filing? [00:22:44] Speaker 03: It seems to me that that's a limit on their power. [00:22:47] Speaker 00: Well, first of all, I agree that it's a limit on the PTO. [00:22:51] Speaker 00: But what it's a limit based on is something that is the case at filing. [00:22:55] Speaker 00: The limit is conditioned on whether something is filed in a particular condition. [00:23:01] Speaker 03: But that condition is met after the fact when a new real party of interest actually had a case filed against it more than a year before the filing of the petition, right? [00:23:14] Speaker 00: No, Your Honor, because the condition is specific to is filed. [00:23:18] Speaker 00: That's how the condition is set forth in the statute. [00:23:20] Speaker 03: It doesn't say you test this at the time of filing. [00:23:23] Speaker 03: You agree with that, right? [00:23:24] Speaker 00: The language is not that specific, Your Honor. [00:23:26] Speaker 00: I certainly agree. [00:23:27] Speaker 00: But I think if you look at the condition language, the only date referred to is the filing date. [00:23:32] Speaker 00: It's when the petition is filed. [00:23:35] Speaker 00: Those are the words of the statute. [00:23:36] Speaker 00: So that's the only date referred to in the condition. [00:23:39] Speaker 04: Just a simple example. [00:23:40] Speaker 04: If the statute said you may not institute if the party that filed was under 18 at the time of filing. [00:23:50] Speaker 04: They're clearly looking at the time of filing, even though it has to do with an institution decision. [00:23:54] Speaker 04: Is that sort of apt? [00:23:56] Speaker 00: I think that would be fair. [00:23:59] Speaker 00: Congress could have put more language in there, but they did put a date in the condition. [00:24:04] Speaker 00: And the date is the filing date. [00:24:06] Speaker 01: Yes, Your Honor. [00:24:07] Speaker 01: The court, in looking at 315B, said that the director is without authority to, we say, institute, but it's really to entertain [00:24:20] Speaker 01: the proceeding if 315B is not met. [00:24:24] Speaker 01: It seems to me that your argument goes back against our decision in Wi-Fi 1. [00:24:30] Speaker 01: It's contrary to Wi-Fi 1. [00:24:32] Speaker 01: If the 315B rests on whether or not the director actually had authority to conduct the proceeding, then why would it have the authority after the filing date? [00:24:48] Speaker 01: Why would we, under those conditions, say the filing date, after the filing date, the director always has authority? [00:24:56] Speaker 00: Well, Your Honor, respectfully, Wi-Fi 1 refers to this as the timeliness of the petition. [00:25:03] Speaker 00: That's how Wi-Fi 1 refers to the 315B test. [00:25:06] Speaker 00: So in its actual wording, it's talking about, was the petition timely? [00:25:11] Speaker 00: So that, again, refers to that filing date of the petition, not is the petition [00:25:17] Speaker 00: Subsequently, even though timely, when filed, subsequently somehow just debarred or found to be problematic, Wi-Fi 1, in focusing, and I agree with you, Your Honor, in focusing on the power of the patent office for IPRs, focuses on the timeliness of the petition. [00:25:36] Speaker 00: So again, the condition they're looking at is the condition at the time that petition was filed. [00:25:42] Speaker 00: That's why the petition is either timely or not timely. [00:25:44] Speaker 04: Why does that make any more sense than institution? [00:25:48] Speaker 00: Well, Your Honor, I think you actually raised there's this policy issue, right, that if institutions are moving target. [00:25:53] Speaker 00: And I direct, Your Honor, asked for Supreme Court guidance on this. [00:25:56] Speaker 00: And I would direct the court to the Grupo Dataflux case, which is 541 US 567. [00:26:05] Speaker 00: And the discussion of this point is at 580. [00:26:09] Speaker 00: And in that case, the Supreme Court specifically talked about how a time of filing rule is useful because [00:26:17] Speaker 00: the facts are subject to change. [00:26:19] Speaker 00: Obviously, this case illustrates the fact that the facts are subject to change. [00:26:23] Speaker 00: And the Supreme Court said, and because constant litigation in response to that change would be wasteful. [00:26:30] Speaker 00: So the Supreme Court was pointing out that the reason you have a time of filing rule is so that you can look at all the facts and figure it out, as opposed to, for example, having an institution decision and realizing, well, we made the institution decision, but the facts changed the night before. [00:26:46] Speaker 00: Or the facts changed even on the day of. [00:26:48] Speaker 00: The Supreme Court has realized there are policy reasons why having a time of filing analysis is superior. [00:26:55] Speaker 03: That doesn't make much sense to me where we're supposed to be looking at what Congress intended, right? [00:27:02] Speaker 03: So we shouldn't look necessarily to a Supreme Court case to determine what the proper policy is. [00:27:07] Speaker 03: Shouldn't we just be looking at what we think we best understand Congress to have expressed by the plain language of this statute? [00:27:14] Speaker 00: Well, Your Honor, I would say that the Supreme Court, in discussing why time of filing is, in a policy matter, superior is relevant. [00:27:22] Speaker 00: But I agree that we should also look at what has Congress been doing? [00:27:26] Speaker 00: How do we analyze where Congress is sitting? [00:27:29] Speaker 00: And I point, Your Honor, to the fact that the inner parties re-exam, so the predecessor to the IPR, that used a different analysis. [00:27:38] Speaker 00: That actually used something much more like issue preclusion, where you looked at the end of the case [00:27:43] Speaker 00: not the filing, but the end of the case to do the analysis. [00:27:47] Speaker 00: Congress clearly was changing its approach by going from the end of the district court case, which is what it looked at in the inner party's re-exam situation in its previous statute, to looking at the filing of the IPR petition, which is what is in the language of the current statute. [00:28:05] Speaker 00: So Your Honor, I would say that we're forfoking sitting on Congress and saying, what happened here? [00:28:10] Speaker 00: I think what happened here is Congress changed [00:28:13] Speaker 00: changed what it was doing between the re-exam and the IPR. [00:28:16] Speaker 03: I want to ask you, you referred to Chief Judge Prost's question about Supreme Court case law. [00:28:22] Speaker 03: Her question actually went to our deference and whether we should be giving our deference to non-precedential opinions of the board interpreting this statutory provision. [00:28:34] Speaker 03: Do you have an answer to that question? [00:28:36] Speaker 00: Your Honor, our position is that those are persuasive, but that we don't believe that they're deferential. [00:28:43] Speaker 00: However, I disagree with my colleague in terms of the regulation that he says just parrots. [00:28:49] Speaker 00: If you actually look at the regulation, which is Rule 42.101, you'll see that the regulation specifically uses the language about may file. [00:29:03] Speaker 00: So the regulation goes beyond, and it actually kind of goes to the language you were suggesting, Your Honor, that Congress could have used, which is to focus on that filing date [00:29:12] Speaker 00: even before you get to the condition. [00:29:15] Speaker 00: And that language is that the person who is not an owner of the patent may file with the office a petition unless the petition requesting the proceeding is filed. [00:29:28] Speaker 04: But that's still mushy. [00:29:29] Speaker 04: I mean, if we get to that point, it's because we've decided that the statutory language is ambiguous. [00:29:35] Speaker 04: And that hardly gives us, I think, a clear cut roadmap to answering the question. [00:29:40] Speaker 04: I mean, I understand what you're saying, but it does [00:29:42] Speaker 04: Can I ask you, even assuming there's the 315B is otherwise and what your friend said was, well, even if you're right on the statutory construction, at a minimum, the board should have given them discovery and probably even likely concluded based on the record that there was a problem here. [00:30:03] Speaker 04: It seems to me, I'm a little troubled because it seems like the only thing the board said, they said something which I find kind of confusing, where they said, [00:30:11] Speaker 04: because ON was not Fairchild's proxy because it had its own interest. [00:30:19] Speaker 04: And what it called its own interest is what the board articulated was it had a multi-billion dollar merger pending at the time of filing of this petition. [00:30:29] Speaker 04: That seems backwards, where that reason is entirely derivative of this thing that we're adjudicating. [00:30:37] Speaker 04: Do you understand my problem? [00:30:39] Speaker 04: Why I think it's a beautiful view to rely on that? [00:30:42] Speaker 00: Your Honor, I think you have to look at that in the context of their description of that merger agreement. [00:30:47] Speaker 00: So at pages A11 and A13, and this is the board's opinion, the board is giving the evidence and the factual background for its conclusion. [00:30:59] Speaker 00: So the board is talking specifically about the conditions in this merger agreement. [00:31:04] Speaker 00: So the board refers specifically to [00:31:06] Speaker 00: And it's in your record. [00:31:08] Speaker 00: I know the board uses other citation numbers, but it's in your record at page 1826 in the third, I believe it's the third volume, Your Honor. [00:31:17] Speaker 00: But specifically, what the board is looking at is these were parties in the same industry. [00:31:22] Speaker 00: So we have all these antitrust issues. [00:31:24] Speaker 00: And the board looks and says, look, this agreement identified that these were parties in the same industry with antitrust issues as a result. [00:31:33] Speaker 00: This merger agreement talks specifically about all the ways in which [00:31:36] Speaker 00: They might not get approval. [00:31:38] Speaker 00: And in fact, the merger agreement sets forth these different time frames for if we don't get approval, this is what happens. [00:31:43] Speaker 00: If we don't get approval, this is what happens. [00:31:45] Speaker 00: That's in the merger agreement that they looked at. [00:31:47] Speaker 00: Going to your question, Your Honor, that was what they found showed that ON had its own interest. [00:31:53] Speaker 00: ON was in this industry with the same types of products. [00:31:57] Speaker 00: And we've got a litigious patentee asserting patents against these types of products. [00:32:02] Speaker 00: And the board says, look at what we did. [00:32:03] Speaker 00: And we looked at the merger agreement, this multi-billion dollar merger. [00:32:07] Speaker 00: And it shows that ON had its own interest. [00:32:10] Speaker 00: And of course, here on appeal, once they said, well, ON had no interest, we showed the court years before any of this they were accusing ON's products. [00:32:17] Speaker 04: There's no question. [00:32:18] Speaker 04: Yeah, but they said they had an interest because they had a merger pending, which suggests to me that they had an interest because they knew they might become part of this other entity. [00:32:28] Speaker 04: And this other entity was being sued. [00:32:31] Speaker 04: That all seems part and parcel of what really makes them not a real party of interest. [00:32:37] Speaker 04: You understand? [00:32:38] Speaker 04: I mean, it's all derivative from the fact that they had a merger pending. [00:32:42] Speaker 04: I think the other side would agree. [00:32:44] Speaker 04: That's why they were one in the same, because at least there was a 50% chance that they were going to be merged into this other entity, which was being sued on multiple patents in district court. [00:32:57] Speaker 04: So it seems to me the pending merger [00:33:00] Speaker 04: is what creates this privity problem? [00:33:03] Speaker 00: Your Honor, their argument certainly is that the pending merger is what creates the privity problem. [00:33:08] Speaker 00: No question. [00:33:10] Speaker 00: The board looked at that specifically and said, well, you might be able to backdate under tailor factor number four. [00:33:17] Speaker 00: You might be able to backdate from the formal merger. [00:33:20] Speaker 00: The board did not say, oh, we're going to wait until the formal merger. [00:33:22] Speaker 00: They looked at the conditions. [00:33:24] Speaker 00: But they said, this IPR petition was well before that. [00:33:28] Speaker 00: So this is on page A13 where the board talks about the conditions. [00:33:32] Speaker 00: Going to your questionnaire, the point the board was making was ON had its own interest, but in view of that merger agreement, ON needed to file because what was going to happen was there was going to be a technicality here where ON with its own products and with an accusation against it was going to lose its right that Congress had given it to file an IPR. [00:33:54] Speaker 00: That's why the merger agreement showed [00:33:56] Speaker 00: that ON had to file this IPR, because otherwise they were going to lose their right. [00:34:01] Speaker 01: When the board reviewed the merger agreement and then entered its analysis, it only did that on the basis of control, correct? [00:34:11] Speaker 00: No, Your Honor. [00:34:11] Speaker 00: They talked. [00:34:12] Speaker 00: Well, first of all, there are two types of control under Taylor. [00:34:15] Speaker 00: So I agree with you that they looked at it from control with regard to controlling the initial litigation. [00:34:22] Speaker 00: and control the IPR, because Taylor has two categories. [00:34:25] Speaker 00: I believe there are categories four and five. [00:34:27] Speaker 00: And our case law already establishes that control is not the single factor. [00:34:31] Speaker 00: That's right. [00:34:32] Speaker 01: When the board addressed that, they say specifically that control is not. [00:34:35] Speaker 01: But it seems here that the board said there's many factors involved here, and control is one of them. [00:34:41] Speaker 01: And then it goes off and just focuses on control and nothing else. [00:34:45] Speaker 00: Your Honor, respectfully, I disagree. [00:34:47] Speaker 00: I think they looked at the three [00:34:49] Speaker 00: Taylor factors that are important in this case. [00:34:52] Speaker 00: The first is, according to Taylor, and this is factor number two in Taylor, the substantive legal relationship. [00:34:59] Speaker 00: And that's not one of the control factors in Taylor. [00:35:01] Speaker 00: And that's where the board looked at the merger agreement, looked at the conditions. [00:35:04] Speaker 00: But the legal relationship is a factor of control. [00:35:08] Speaker 00: One of the ways to establish control is by showing the legal relationship of parties. [00:35:13] Speaker 00: Well, Your Honor, in Taylor, the Supreme Court actually treats that one as a separate category. [00:35:18] Speaker 00: This is on, Your Honor, in Taylor and the specific categories Taylor has for privity. [00:35:24] Speaker 00: And this would be in Taylor. [00:35:27] Speaker 00: And the page in Taylor v. Sturgill is 894, Your Honor. [00:35:32] Speaker 00: So the Supreme Court says there's substantive legal relationship. [00:35:37] Speaker 00: There's control of the prior litigation by the new litigant. [00:35:42] Speaker 00: And then there's control of the new litigation by the prior litigant. [00:35:45] Speaker 00: Those are the three categories that are in play here. [00:35:48] Speaker 00: And the board made affirmative findings on all three. [00:35:51] Speaker 00: On the first category, the board made the affirmative finding that, in view of what had happened in the merger with the conditions, and this is that analysis on page A11. [00:36:01] Speaker 00: But were in the board decision, did they focus on that second item, the second factor you just brought up? [00:36:06] Speaker 00: It would be on page A11, Your Honor, where they looked at the potential for a substantive legal relationship, in the words of Taylor, [00:36:14] Speaker 00: They looked at whether the merger agreement, despite not being formally finished, had, despite that, created a substantive legal relationship. [00:36:23] Speaker 00: And they said, well, based on the evidence, you could get back a certain amount. [00:36:28] Speaker 00: But that ON has shown you can't get back before that and that the IPR petition was well before that, like five months before that. [00:36:35] Speaker 00: The second factor they looked at, and they talk about as being proxy, [00:36:38] Speaker 00: is the Taylor v. Sturgell factor number four, which is, did SCI have control over the previous litigation? [00:36:47] Speaker 00: But here, there's no dispute that the invalidity arguments in that previous litigation, the one in California that we just finished talking about, have gone to trial long before even there was a merger agreement or a confidentiality agreement. [00:36:59] Speaker 03: I have a question for you. [00:37:01] Speaker 03: Do I remember correctly that the board [00:37:04] Speaker 03: issued its decision well before some of our more recent decisions flushing out privity, for example, the Western GECO case. [00:37:14] Speaker 00: Certainly, Your Honor, the board issued the decision, I believe, in late 2017. [00:37:18] Speaker 00: So any cases after that? [00:37:20] Speaker 00: Certainly not. [00:37:21] Speaker 00: But the Western GECO board also issued its decision years before the Western GECO decision and still was affirmed with respect to its treatment. [00:37:30] Speaker 00: I would also say- Some of our more recent cases talking about how control is not the number one factor and shouldn't be the- Your Honor, I would ask you, the final written decision specifically says that control is not the only factor. [00:37:43] Speaker 00: It specifically talks about Taylor v. Sturgell and lists the categories. [00:37:46] Speaker 00: It cites to the page in Taylor v. Sturgell where those categories are listed. [00:37:50] Speaker 00: This board knew that that was not the only factor and specifically cited to Taylor, which is what this court has looked to, [00:37:58] Speaker 00: for the number of categories that can apply to privity. [00:38:02] Speaker 04: Your time is up, but let me just ask you to speak briefly on the question of preclusion. [00:38:07] Speaker 04: And why is your friend not right that to do otherwise, we would be telling parties that they're being forced to file appeals on matters they no longer care about? [00:38:22] Speaker 04: It seems odd. [00:38:25] Speaker 04: that we would be compelling people to file all of these useless appeals simply to preserve this one issue, which is not before us. [00:38:34] Speaker 00: So the first thing I'd say, Your Honor, is there is no evidence that this is an unimportant issue. [00:38:40] Speaker 00: It's mere attorney argument. [00:38:41] Speaker 00: And we pointed out in our reply all the other statements they've made that these claims are important. [00:38:46] Speaker 00: So first of all, keep in mind, it's only attorney argument that's unimportant. [00:38:50] Speaker 04: Also, we have the fact that they didn't appeal it. [00:38:53] Speaker 04: And they appealed this one. [00:38:54] Speaker 04: That's right. [00:38:55] Speaker 04: So even on a clean slate with nothing else, we'd assume that parties behave in their interests and that therefore they had a big interest in spending the money for an appeal on this patent and not on the other one. [00:39:08] Speaker 00: Your Honor, first of all, the exception that they're trying to use is very narrowly tailored. [00:39:12] Speaker 00: If you look at the cases they've cited, they are situations where the party essentially had no interest. [00:39:17] Speaker 00: Here, they filed a motion to reconsider. [00:39:19] Speaker 00: They went all the way through arguing it at every stage of the IPR. [00:39:23] Speaker 00: This is clearly not a situation with no interest. [00:39:25] Speaker 03: You're saying in order for us to exercise our equitable discretion, we need to see whether we think that it's correct when they say it wasn't important. [00:39:34] Speaker 00: I think you need to look and see if they have any evidence of that. [00:39:37] Speaker 00: And if there's evidence that it was important and weigh that. [00:39:40] Speaker 04: And the one evidence is that they didn't appeal it. [00:39:43] Speaker 04: And one assumes that issues that are important [00:39:46] Speaker 04: are being appealed, we assume that parties are acting in their self-interest, and they are doing things appropriately. [00:39:52] Speaker 04: And we know they didn't appeal those. [00:39:56] Speaker 04: So otherwise, we are telling them that you have to appeal issues that you've decided you don't want to appeal simply to preserve the right to ever adjudicate this question in this context. [00:40:08] Speaker 00: And Your Honor, that's exactly what happened in BNB hardware. [00:40:11] Speaker 00: In BNB hardware, the party had not appealed [00:40:14] Speaker 00: the decision of the Trademark Trial and Appeal Board. [00:40:16] Speaker 00: And the Supreme Court found that that caused issue preclusion, even though, as you just pointed out, they chose not to appeal, which might suggest they didn't care that much about it. [00:40:26] Speaker 00: But the Supreme Court still found issue preclusion. [00:40:30] Speaker 00: And B&B hardware has been the law for several years now. [00:40:33] Speaker 04: Thank you. [00:40:34] Speaker 00: Thank you, Your Honor. [00:40:42] Speaker 04: I don't want to take all of your time, but could you just spend the first 30 seconds or so telling me why my reading of the statute is wrong, why it wouldn't be just the board cannot institute if at the time of filing the party was under 18 years old? [00:40:58] Speaker 04: Why isn't that kind of a parallel circumstance to what we've got here? [00:41:02] Speaker 02: I think it is parallel as far as it goes. [00:41:07] Speaker 02: If the statute specifically said, and I think this is your hypothetical, the only time you look to determine and the only evidence you consider to determine the condition precedent is at a specific point in time, I agree with your hypothetical. [00:41:24] Speaker 02: But that's not this statute. [00:41:26] Speaker 02: 315B doesn't say what evidence the board can consider in deciding whether somebody is a privity or is a barred party. [00:41:36] Speaker 02: That's why we're here, because the statute actually doesn't say that. [00:41:39] Speaker 02: It doesn't say you can't look up until the time that you actually institute. [00:41:44] Speaker 02: And in fact, it strongly implies the opposite, right? [00:41:47] Speaker 02: Because it says that the board cannot institute unless. [00:41:55] Speaker 02: So I think that's the answer. [00:41:57] Speaker 02: Your analogy is close but not exact to what the statute actually says. [00:42:04] Speaker 02: You asked one other question, Chief Judge Prost, that I don't think I gave you a specific site for, and I'd like to now. [00:42:11] Speaker 02: And that was these non-precedential board opinions, Eris, and I'm blanking on the other one, why you don't defer to those. [00:42:24] Speaker 02: I think you want to look at synopsis as the other one. [00:42:28] Speaker 02: Aqua products, 872 F third at 1320. [00:42:34] Speaker 02: And the principle is that unless the agency's prior decisions are the result of a formal process and a formal rulemaking, they do not get deference. [00:42:48] Speaker 02: And these decisions don't. [00:42:49] Speaker 04: Or it leaves open the question about presidential board opinions, does it not? [00:42:53] Speaker 02: Well, maybe, but these are not. [00:42:56] Speaker 02: These aren't even presidential board opinions. [00:42:58] Speaker 02: And this sort of goes, I think, to Judge Stahl's observation that [00:43:02] Speaker 02: Gee, isn't what's happening here that the board in this case did this analysis and reached this result without the guidance from this court that you've now provided in all these later cases? [00:43:12] Speaker 02: And the answer to that is yes. [00:43:14] Speaker 04: Can you distinguish B&B hardware from this case? [00:43:16] Speaker 02: Right. [00:43:17] Speaker 02: So B&B hardware is a case that was a forum shopping case, right, where a party had lost in one forum and tried it again in another. [00:43:30] Speaker 02: In that case, it was B&B. [00:43:32] Speaker 02: TTAB versus district court. [00:43:36] Speaker 02: So again, it actually goes back to my comment about Max Linear. [00:43:39] Speaker 02: It was not a case where issue preclusion was argued that it should be applied to prevent review entirely. [00:43:47] Speaker 02: The party had an opportunity to litigate the issue. [00:43:50] Speaker 02: They litigated the issue. [00:43:51] Speaker 02: They got an answer on the merits on the issue, didn't like it, and tried to get a do-over. [00:43:56] Speaker 02: That's not at all what's going on here. [00:43:58] Speaker 01: Did B&B Harbor involve parallel decisions like we have here? [00:44:02] Speaker 02: Not like we have here. [00:44:08] Speaker 02: Parallel only in the sense that it was a trademark issue, and the party had lost on the specific trademark issue in front of the board, the trademark board, and then came to district court and tried to litigate the same issue in district court and say, I'm not precluded by what happened over there. [00:44:25] Speaker 02: So really, factually, it's not apposite. [00:44:29] Speaker 02: And the principle is really very, very different. [00:44:32] Speaker 02: Because again, Ann wants you to apply issue preclusion here to prevent entirely your review of this issue. [00:44:39] Speaker 03: Can I ask you just to make sure I'm clear on something? [00:44:41] Speaker 03: There were nine IPRs, and you appealed eight of them? [00:44:45] Speaker 03: Did I hear you say that? [00:44:46] Speaker 02: Well, there actually were 12 filed after the merger, all addressing patents [00:44:54] Speaker 02: Fairchild had either been found to infringe or was accused of infringing. [00:44:58] Speaker 02: The board instituted on nine and not on three. [00:45:02] Speaker 02: And eight of those are on appeal. [00:45:06] Speaker 02: And so the one decision, so eight of them, you have eight cases pending in front of you. [00:45:12] Speaker 03: And so they would want you to have appealed all nine. [00:45:15] Speaker 02: That's their argument. [00:45:16] Speaker 02: Eight out of nine, sorry, you're out of luck, essentially. [00:45:19] Speaker 02: For any of the nine? [00:45:21] Speaker 01: For any, across the board, even though... But why not? [00:45:24] Speaker 01: If you appealed it in the other cases, in so many other cases, why not this case? [00:45:29] Speaker 02: Well, you know, in retrospect, we're sitting there thinking, gee, I guess we should have. [00:45:36] Speaker 02: The why not is because it wasn't important enough in that case to keep that appeal alive against the backdrop of nine, well, I should say eight other IPRs, especially Judge Ware, [00:45:49] Speaker 02: This case was first. [00:45:51] Speaker 02: This is the Bellwether case. [00:45:54] Speaker 02: The issue of privity came up in this case. [00:45:57] Speaker 02: We pursued it vigorously, as you see from this record. [00:46:01] Speaker 02: And we appealed it first in this case. [00:46:03] Speaker 02: And so really, their argument comes down to you didn't serially pursue the same issue eight other times, and therefore, you can't pursue it this time. [00:46:14] Speaker 02: And I don't think you're going to find a case that says that, including the ones they cite. [00:46:18] Speaker 02: I really don't think you are. [00:46:19] Speaker 04: Thank you. [00:46:20] Speaker 04: We thank both sides. [00:46:21] Speaker 04: The argument has been very helpful. [00:46:23] Speaker 04: Case is submitted.