[00:00:38] Speaker 04:
Our next case is ESIP Series 2 versus Who's in Life USA, 2019-16-59.

[00:01:00] Speaker 04:
Mr. Hill, when you are ready, are you going to split your argument?

[00:01:04] Speaker 04:
I'm sorry?

[00:01:04] Speaker 04:
Are you splitting your argument?

[00:01:06] Speaker 02:
Yes, I am.

[00:01:08] Speaker 04:
So you're gonna take seven minutes.

[00:01:10] Speaker 04:
You've got 12 and you'll take seven minutes before the yellow light goes on.

[00:01:18] Speaker 02:
May I please court Gordon Hill representing the appellant AESIP Series 2.

[00:01:25] Speaker 02:
The board's final written decision should be reversed because Pujen's IPR petition did not meet its evidentiary burden.

[00:01:35] Speaker 02:
Pujen's IPR petition

[00:01:37] Speaker 02:
Did not identify?

[00:01:38] Speaker 01:
Do we have authority to review this particular determination?

[00:01:43] Speaker 01:
The 312 determination?

[00:01:45] Speaker 02:
Yes, Your Honor, I think we do.

[00:01:47] Speaker 02:
In this instance, ESIP is seeking review of the board's actions that acted outside of its statutory authority.

[00:01:57] Speaker 01:
We have never ruled that we have authority to review a real party and interest determination that's made pursuant to 312, correct?

[00:02:08] Speaker 02:
I think that's correct, Your Honor.

[00:02:11] Speaker 05:
And why would we?

[00:02:12] Speaker 05:
That's part of the institution decision, which is not reviewable.

[00:02:16] Speaker 05:
When we reviewed real party and interest in Wi-Fi one, it's because it affected the final decision and whether the board was properly acting within the one-year time limit.

[00:02:27] Speaker 05:
But you're not suggesting that a finding of these other two parties would implicate a time limit, are you?

[00:02:33] Speaker 02:
Yes, we are.

[00:02:34] Speaker 05:
Where in your brief did you argue that?

[00:02:37] Speaker 05:
I'm not sure the page, but it talks about how this brief... Did you argue to the board that these parties are real parties in interest and that they were sued more than one year before the petition was filed?

[00:02:52] Speaker 02:
Yes.

[00:02:53] Speaker 02:
Where?

[00:02:54] Speaker 02:
To the board?

[00:02:55] Speaker 05:
Where to us or the board?

[00:02:56] Speaker 05:
I don't remember seeing any of this.

[00:02:58] Speaker 05:
I mean, if this is the case, this is a clear Wi-Fi 1 decision, but I didn't see any of that argument.

[00:03:05] Speaker 02:
The board finds that doTERRA was one of the parties that was also a co-defendant in the underlying district court case.

[00:03:14] Speaker 02:
So they had been served with the complaint.

[00:03:16] Speaker 05:
In your blue brief, where you say the board's decision should not have been instituted because one of the real parties in interest was sued more than a year before the petition was filed.

[00:03:27] Speaker 02:
No, it does not say that in the brief.

[00:03:30] Speaker 05:
Well then, haven't you waived that argument?

[00:03:33] Speaker 02:
No, it's not an argument about the implication of the one year bar, because... Well, you just told me it was.

[00:03:42] Speaker 05:
Is it or isn't it?

[00:03:43] Speaker 05:
Are you arguing a Wi-Fi one case, or are you arguing a separate case that the board's initial institution decision of who is a real party in interest, whether or not it implicates a time bar, is still reviewable?

[00:03:58] Speaker 05:
Is it the former, the time bar, or is it just the latter?

[00:04:02] Speaker 02:
Well, it would implicate the time bar if the parties are named.

[00:04:08] Speaker 02:
But in this case, the correction was never made.

[00:04:10] Speaker 02:
So the implication for the time bar never really came up at the board level.

[00:04:17] Speaker 05:
You didn't argue that on appeal that the proper party in interest was this other party, and they had been sued more than a year in advance.

[00:04:26] Speaker 05:
That would make, under Wi-Fi 1, the board's final decision

[00:04:31] Speaker 05:
In excess of its authority, but all you're asking us to do is review the institution decision in isolation from the final decision, which close have said we can't do.

[00:04:44] Speaker 02:
Well, QOZO does allow for review of board decisions that act outside the statutory authority.

[00:04:50] Speaker 05:
Final board decisions.

[00:04:52] Speaker 05:
That's what's reviewable by us, the final board decision.

[00:04:55] Speaker 05:
The initial board decision is not appealable.

[00:04:58] Speaker 05:
So only things that merge into the final board decision are appealable.

[00:05:03] Speaker 02:
The Supreme Court said that things that were related to the institution decision with respect to being related on the merits would be considered non-reviewable.

[00:05:13] Speaker 02:
They specifically pulled out Section 312A3 because that had to do with the merits of the case and so they decided that was not reviewable.

[00:05:25] Speaker 05:
But of course the merits are actually what is reviewable on appeal.

[00:05:29] Speaker 02:
Oh absolutely, yes.

[00:05:31] Speaker 05:
The merits are reviewable, but the... So you're saying that appeal bar only applies to basically the board's initial decision on the merits, but not other preliminary decisions that have no effect on the final decision.

[00:05:51] Speaker 02:
Yes, that is correct.

[00:05:53] Speaker 05:
Where in Quozo does it say that?

[00:05:54] Speaker 02:
In Quozo, it specifically points out that

[00:05:59] Speaker 02:
The reason the Supreme Court said that issues under 314A3 were not reviewable is because they were closely related to the final decision.

[00:06:11] Speaker 02:
They described it as a mine run with respect to the idea of the final decision, but they left open the possibility.

[00:06:19] Speaker 02:
It doesn't say it's reviewable.

[00:06:21] Speaker 02:
It does say that that's still something that can be considered.

[00:06:24] Speaker 01:
Why wouldn't this just be a typical mine run type issue?

[00:06:29] Speaker 01:
going to the sufficiency of the petition.

[00:06:33] Speaker 02:
Well, it does go to the sufficiency of the petition because it's based on the plain statutory language of 312.

[00:06:41] Speaker 01:
All you're doing is naming a real part of an interest.

[00:06:47] Speaker 01:
What's the difference there?

[00:06:48] Speaker 01:
I mean, it would make a difference if it was related back to 315B issue.

[00:06:54] Speaker 01:
In this case, it wasn't.

[00:06:56] Speaker 01:
The board said that there were no claims being made that 315B was an issue.

[00:07:05] Speaker 01:
So you don't have that.

[00:07:08] Speaker 01:
And all you're left with is 312.

[00:07:12] Speaker 01:
And that just goes to whether you fill in the different blanks or not.

[00:07:17] Speaker 05:
The initial sufficiency is precisely what is covered by the appeal bar.

[00:07:23] Speaker 05:
What's appealable to us is the final written decision on the IPR.

[00:07:30] Speaker 05:
And unless some of those decisions from that initial decision merge into the final decision as they do with the time bar,

[00:07:41] Speaker 05:
Like we said in Wi-Fi 1, then decisions that, initial preliminary decisions that don't affect the final decision are part of that preliminary institution decision that the statute says is unreviewable.

[00:07:55] Speaker 05:
Can you explain to me how if we disagree with the board and find these people real party in interest, it would change the results here?

[00:08:06] Speaker 02:
It would show that there was a statutory violation at the stage of instituting this decision.

[00:08:11] Speaker 02:
What's the statute?

[00:08:14] Speaker 02:
312A2.

[00:08:15] Speaker 05:
That statute... But that's part of the preliminary decision.

[00:08:19] Speaker 05:
It's not part of the final decision.

[00:08:21] Speaker 05:
It's not part of the final decision, but it's still... And that's the point of the appeal bar, is that you don't get to upset the final decision for technical violations in the preliminary institution decision.

[00:08:34] Speaker 05:
Only violations that go to the final decision and affect it are reviewable.

[00:08:42] Speaker 05:
as in the time bar in Wi-Fi 1.

[00:08:45] Speaker 02:
I respectfully disagree that that's what Quozo Speed says.

[00:08:49] Speaker 05:
Well, you can argue that all you want.

[00:08:51] Speaker 05:
Quozo doesn't say anything like that.

[00:08:55] Speaker 02:
The decision in Quozo Speed rests on the idea.

[00:08:58] Speaker 05:
I understand what you're arguing about, Quozo, and it was explicitly rejected.

[00:09:03] Speaker 05:
You're saying essentially all the appeal bar does in Quozo is

[00:09:09] Speaker 05:
is deny review of that initial assessment of whether or not it's likely unpatentable or not in closely related questions.

[00:09:17] Speaker 05:
But Closeau rejected that argument and said it is much broader than that.

[00:09:21] Speaker 05:
So do you want your answer to your rebuttal?

[00:09:23] Speaker 05:
Do you want to talk about the merits?

[00:09:25] Speaker 02:
Yes, please.

[00:09:26] Speaker 04:
I do.

[00:09:28] Speaker 04:
And then you want to save three minutes for Mr. Payne.

[00:09:32] Speaker 02:
You know what?

[00:09:32] Speaker 02:
I will give Dr. Payne some time.

[00:09:35] Speaker 02:
Thank you.

[00:09:42] Speaker 03:
Your honor, may it please the court, I'm Jack Pate representing ESIF.

[00:09:49] Speaker 03:
The aperture 99 in the CV patent 418, sighted prior art, is not a separator.

[00:10:02] Speaker 03:
And the final written decision got that wrong.

[00:10:05] Speaker 03:
In the appendix 19 and 20, 25 through 28, they got it wrong.

[00:10:09] Speaker 03:
They quoted three times, misquoted every time, and changed the meaning of CB by the things they left out.

[00:10:20] Speaker 03:
Now, second of all, the decision provided no rationale for why you should dismantle Cronenberg's device.

[00:10:30] Speaker 03:
Literally, every part, taking apart, modifying each component, leaving out some of the components, and then substituting a modified subset of Cronenberg's components into the aperture of CV.

[00:10:44] Speaker 04:
To take a second reference as part of an obviousness projection doesn't mean you incorporate it totally.

[00:10:53] Speaker 04:
Kronenberg redacted spiral arrangements and occupied passages, and that's all that was missing from the first CV patent, isn't that right?

[00:11:06] Speaker 03:
No, that's not all that was missing from the CV patent.

[00:11:08] Speaker 03:
First of all, the aperture is not a separator, and so they left the whole separator 150 in CV 418 patent.

[00:11:18] Speaker 03:
They left it all there.

[00:11:20] Speaker 03:
In the patent in question, the whole separator 150 is there.

[00:11:24] Speaker 03:
What happened was the board ignored column 10.

[00:11:28] Speaker 03:
This is at appendix, I think 495, 496.

[00:11:32] Speaker 03:
That shows you inside the CB reference, the 418.

[00:11:38] Speaker 03:
They ignored column 10.

[00:11:39] Speaker 03:
And they misquoted in column 8 and 9 so that you, in fact, they put an ellipsis in place of the number 100

[00:11:48] Speaker 03:
And the number 100, go looking for 100 opening, it's not the aperture 99.

[00:11:53] Speaker 03:
It's the top opening in the overall housing of the 16, of the atomizer 16.

[00:12:03] Speaker 03:
And when you look for what the wall 100 is, it's the cylindrical wall inside that whole separator.

[00:12:09] Speaker 03:
So all the discussion about smashing and crashing of droplets, comminuting to smaller sizes, and then only the cloud of finest droplets going out, that is ignored.

[00:12:21] Speaker 03:
And in column 10, see the numbers, the separator 150 and the

[00:12:31] Speaker 03:
And the board got that wrong.

[00:12:33] Speaker 03:
So they put it in the wrong place, substituted the wrong thing, and they're using the arcuate channel.

[00:12:38] Speaker 03:
But CV has to have a whole plate that caps over the top of that arcuate channel, which is not shown.

[00:12:46] Speaker 03:
And by the, okay, I'm out of time, but none of the other references even matter.

[00:12:52] Speaker 03:
They all teach mixing and spraying, and everything that is, everything that twists is not a separator.

[00:12:59] Speaker 03:
None of that other prior art matters.

[00:13:04] Speaker 04:
Mr. Miller.

[00:13:09] Speaker 00:
Thank you, your honor.

[00:13:10] Speaker 05:
May it please the court?

[00:13:12] Speaker 05:
Can you clear up something factually for me?

[00:13:13] Speaker 05:
Absolutely.

[00:13:15] Speaker 05:
Was there any argument to the board below that you shouldn't institute this petition because one of the real parties in interest was sued more than a year before the petition was filed?

[00:13:25] Speaker 00:
No.

[00:13:26] Speaker 00:
And in fact, this is not a Wi-Fi one case at all.

[00:13:30] Speaker 00:
There's two alleged missing real parties in interest.

[00:13:34] Speaker 00:
has the exact same service date as Puget.

[00:13:37] Speaker 00:
So if they had been included, it would have been...

[00:13:41] Speaker 00:
No problem, no 315 one year bar issue.

[00:13:44] Speaker 00:
The parent company, Pujian Hong Kong, has never been served or sued.

[00:13:48] Speaker 00:
So there's no one year bar with them.

[00:13:50] Speaker 00:
So this is not a one year bar case at all.

[00:13:52] Speaker 00:
I think what council was trying to convey as a one year bar case is if you find that we didn't put all the real parties in interest there, then you terminate, we'll have to refile.

[00:14:04] Speaker 00:
And now there's a one year bar because we have to refile.

[00:14:06] Speaker 00:
I think that's what he was trying to characterize

[00:14:09] Speaker 00:
But that's not Wi-Fi 1.

[00:14:13] Speaker 05:
Wi-Fi 1 is the ultimate decision on the merits was in error because it

[00:14:18] Speaker 05:
It should never have been instituted because of the time bar and therefore the agency was without authority to issue the decision.

[00:14:25] Speaker 05:
Correct.

[00:14:26] Speaker 05:
At all in the first instance.

[00:14:27] Speaker 00:
And that is the only situation where the question of real parties and interests is reviewable by this court, is if it's tied to section 315.

[00:14:37] Speaker 00:
If all you are arguing is what Cuozzo characterizes as a minor statutory technicality in the institution phase,

[00:14:47] Speaker 00:
Section 314 bars appeal and and this court even suggested in its Wi-Fi one holding that a violation of Section 312 a2 is much different than an alleged violation of 315 and the dissent agreed that an argument of

[00:15:10] Speaker 00:
Lacking all the real parties and interests in 312 at the initiation stage.

[00:15:14] Speaker 00:
Nobody thinks that would be appealable.

[00:15:16] Speaker 00:
And it's not appealable.

[00:15:17] Speaker 00:
The main argument of appellants in this case is barred by 314 and it's not appealable.

[00:15:26] Speaker 05:
I assume you have the same argument to the other point on this that the petition didn't show a likelihood of success.

[00:15:34] Speaker 05:
That that's equally an institution decision that's barred

[00:15:37] Speaker 05:
Absolutely.

[00:15:41] Speaker 00:
Correct.

[00:15:43] Speaker 00:
And what's also important to understand is in Kuozo.

[00:15:46] Speaker 00:
The Kuozo Court also said that the real part of a Section 312 type of procedural institution issue is also not appealable simply because you're trying to appeal it through the context of the final decision.

[00:16:04] Speaker 00:
It expressly says we don't accept that interpretation of 314.

[00:16:08] Speaker 00:
So the only argument they're making about real parties in interest here is one where they're trying to say the institution decision was wrong.

[00:16:16] Speaker 00:
It's a direct attack on the institution decision, which is a direct violation of Section 314's appeal bar.

[00:16:24] Speaker 04:
Couldn't you address the merits?

[00:16:26] Speaker 00:
On the merits.

[00:16:27] Speaker 00:
I'll go to the argument that Mr. Pate first started with, and that is the aperture argument.

[00:16:34] Speaker 00:
Now, what they claim in that argument is they want to say that

[00:16:40] Speaker 00:
The hole that is in the separator plate.

[00:16:43] Speaker 00:
There is a structure called the separator plate.

[00:16:46] Speaker 00:
It performs a function of separating.

[00:16:49] Speaker 00:
And they want to claim that the hole in the plate is an independent structure.

[00:16:53] Speaker 00:
And we had to show that the hole independently causes separation.

[00:16:58] Speaker 00:
And it's just an illogical argument.

[00:17:00] Speaker 00:
It's like saying that the void in a donut exists independent of the donut.

[00:17:05] Speaker 00:
What the SEVY patent teaches is that the separator plate includes an aperture.

[00:17:13] Speaker 00:
So the plate with the aperture is all one structure, and that structure is expressly taught in SEVY to cause separation.

[00:17:21] Speaker 00:
How?

[00:17:23] Speaker 00:
It teaches in SEVY in column 8.

[00:17:25] Speaker 00:
At the bottom of column 8, it causes a rapid turn in the flow, and the larger droplets of water cannot make the rapid turn to get to the exit.

[00:17:35] Speaker 00:
Where's the exit?

[00:17:36] Speaker 00:
The aperture.

[00:17:38] Speaker 00:
If there's no aperture in that plate, there's no exit and no separation is happening because everything is staying inside that chamber.

[00:17:45] Speaker 00:
So the aperture is critical to separation.

[00:17:49] Speaker 00:
You cause rapid turning.

[00:17:51] Speaker 00:
You cause collisions with the plate while the smaller particles make it out.

[00:17:56] Speaker 00:
So that's what Sevi teaches.

[00:17:57] Speaker 00:
And any person of skill in the art, after reading Sevi, would know, I guess all we have to do is find more ways to cause rapid changes in direction with potential wall collisions.

[00:18:09] Speaker 04:
And where does an occuate channel form through the wall?

[00:18:14] Speaker 00:
The arcuate channel is taught in Cronenberg, and what SEVI has is a wall with an aperture formed through it, and what Cronenberg teaches is that if you pass a mist in an arcuate channel or a spiral channel or a helix, it will cause more separation.

[00:18:34] Speaker 00:
And so what you have is a teaching that says, hey, instead of just a hole in the wall, why don't we replace the hole with an arcuate channel so that after it hits the wall and goes to the exit, the exit itself is still causing rapid changes in direction.

[00:18:52] Speaker 00:
There was substantial evidence before the board to show that that is a logical combination.

[00:18:58] Speaker 00:
And the most compelling evidence ironically came from appellant's own expert, Dr. Bell, in his deposition testimony.

[00:19:05] Speaker 00:
He was asked.

[00:19:07] Speaker 00:
If I took, if I wanted to place an arcuate channel or incorporate this concept of a spiral channel into SEVY, would it be reasonable or logical to put it where the hole is in SEVY?

[00:19:21] Speaker 00:
His response was, that's the first place you would put it and that would make sense.

[00:19:26] Speaker 00:
So we have two experts saying that if anyone's going to incorporate the prior art teachings in Cronenberg or Guerreau of spiraling mist to improve separation, decrease the average particle size in the mist, the first place you would look, the most logical place you would incorporate that concept is right where the aperture is in SEVI.

[00:19:51] Speaker 00:
And then you would have a wall with an arcuate channel through it.

[00:19:54] Speaker 00:
We don't need to get the wall from other references.

[00:19:59] Speaker 00:
It's already in SIP.

[00:20:00] Speaker 00:
We just need the arcuate channel teaching and the concept of SPRITLE and it is such a well-known concept.

[00:20:07] Speaker 00:
And so on the merits, there was substantial evidence.

[00:20:12] Speaker 00:
The appellant's arguments throughout their briefing appear to misapply the standard.

[00:20:21] Speaker 00:
Because the standard at this stage is substantial evidence.

[00:20:25] Speaker 00:
And they have to show that there was not substantial evidence to support the board.

[00:20:29] Speaker 00:
But the way they argue their briefing, they just want to point to the substantial evidence they think supports their side.

[00:20:38] Speaker 00:
In other words, they're trying to say, if the board had gone with us, there would have been substantial evidence to affirm.

[00:20:43] Speaker 00:
But they don't really show the opposite.

[00:20:47] Speaker 00:
They don't show there wasn't substantial evidence to support.

[00:20:51] Speaker 00:
And that's apparent in some of the arguments they make.

[00:20:54] Speaker 00:
Now, I want to address one of their merits argument, which is about, they try to claim that because our expert

[00:21:03] Speaker 00:
They try to allege that our experts cited the wrong standard for a person of skill in the ARC.

[00:21:08] Speaker 00:
And what they've done is they take one sentence out of his report, out of context, and ascribe error to his entire obviousness analysis.

[00:21:16] Speaker 00:
And if you look at Mr. Smith's report, he says multiple times at appendix 591 to 92, he says,

[00:21:27] Speaker 00:
My understanding is a person of skill in the art will not know anything about the invention.

[00:21:34] Speaker 00:
It's from the perspective of somebody lacking knowledge of the invention and only having knowledge of the prior art up until the priority date.

[00:21:42] Speaker 00:
That's what he says.

[00:21:43] Speaker 00:
That was his standard.

[00:21:45] Speaker 00:
When he was trying to evaluate the level of ordinary skill, in other words, should it be a PhD, should it be someone with a bachelor's degree, the level of ordinary skill, that's a similar standard as developing the level of ordinary skill for 112, 103.

[00:22:02] Speaker 00:
That's all the same.

[00:22:05] Speaker 00:
But when you're attributing knowledge to a person of ordinary skill in the art, that's when you draw the Section 103 delineation of only knowledge in the prior art before the invention and without the invention.

[00:22:28] Speaker 00:
Your Honor, if the court has no more questions, I'm ready to sit down.

[00:22:33] Speaker 04:
No one ever loses points by not using up all his time.

[00:22:37] Speaker 04:
Thank you, Your Honor.

[00:22:40] Speaker 04:
Mr. Hill has to four minutes.

[00:22:45] Speaker 02:
To begin with, I'd like to address some of the arguments with respect to the merits.

[00:22:50] Speaker 02:
In TQ Delta versus Cisco, this court talked about how a determination with respect to patentability is based on and confined to the reasoning from the board, the reasoning that the board relied upon.

[00:23:06] Speaker 02:
On page 26 of the board's opinion, Appendix 26, the board clearly states that it is looking at a very specific substitution.

[00:23:15] Speaker 02:
C.B.'

[00:23:16] Speaker 02:
's aperture is being substituted for Cronenberg's helical pathway, and the court gives the reason for that as they both perform the same function.

[00:23:27] Speaker 02:
That reasoning is incorrect.

[00:23:29] Speaker 02:
They do not perform the same function.

[00:23:31] Speaker 02:
Yes, the whole is part of a system that performs the function of separation, but that component does not perform a separation function.

[00:23:42] Speaker 02:
They are substituting one component from one system for one component from another system, and the board said you can do that because they function their functional equivalents, but they're not.

[00:23:54] Speaker 02:
That's not the point.

[00:23:55] Speaker 02:
If you're going to substitute systems, that would be one thing.

[00:23:59] Speaker 02:
You can take Cronenberg's separation system and substitute it, but you can't then get the claim language.

[00:24:07] Speaker 02:
So CV does not stand for the proposition that the aperture functions at all as a system, and that's what the board relied upon.

[00:24:15] Speaker 02:
And in reviewing the patentability, that's what this court is looking at is what does the board rely upon when they're looking at it.

[00:24:25] Speaker 02:
I would add that Mr. Smith's declaration speaks for itself.

[00:24:30] Speaker 02:
He attributed the knowledge of the invention to the person having ordinary skill in the art and to the point that the person having ordinary skill in the art was enabled by the disclosure in the 130 patent.

[00:24:45] Speaker 02:
With respect to merits again,

[00:24:48] Speaker 02:
The board's rationale for the combination is not only incorrect, it's insufficient on its face.

[00:24:55] Speaker 02:
As we've talked about, Cronenberg does mention that you can use an arc to a pathway in some respects, but in column three, it specifically limits the modifications that can be made with respect to Cronenberg.

[00:25:09] Speaker 02:
It says that you can substitute the helix

[00:25:13] Speaker 02:
But then it still has to perform an essentially similar, it still has to achieve an essentially similar result.

[00:25:21] Speaker 02:
And when Pugin takes Cronenberg's structure and reconfigures it, changes some of the openings, it no longer performs the same function that it did in Cronenberg.

[00:25:32] Speaker 02:
Now it is a completely different structure.

[00:25:35] Speaker 02:
And that's why a person having ordinary skill in the art would not substitute it.

[00:25:40] Speaker 02:
What they never explain is why a person having ordinary skill in the art would be motivated to chop up Cronenberg and insert it in there.

[00:25:48] Speaker 02:
And the rationale they give that they perform the same function is incorrect.

[00:25:58] Speaker 02:
Forgive me, I would like to get into the appealability just a little bit, because the point is, it's a statutory requirement.

[00:26:06] Speaker 02:
312A2 is still a statutory requirement.

[00:26:09] Speaker 02:
Under the argument from Pujen today, that decision will never be appealable.

[00:26:14] Speaker 05:
We're at a final decision here.

[00:26:18] Speaker 05:
That's the point of an appeal bar.

[00:26:19] Speaker 05:
Some decisions are left to the agency and are not appealable.

[00:26:21] Speaker 02:
Some decisions are left to the agency, but the Supreme Court and this court talked a lot about how an agency decision that is outside the scope of the statute is still appealable.

[00:26:34] Speaker 02:
That's the whole point of an appellate court.

[00:26:37] Speaker 05:
Not every one of them, though.

[00:26:37] Speaker 05:
Only ones that affect the final decision, and that's our precedent in Wi-Fi 1 and other cases.

[00:26:43] Speaker 05:
So unless you can choke... I'm sorry.

[00:26:45] Speaker 05:
You're over time.

[00:26:46] Speaker 05:
I don't need to take you over time to debate this.

[00:26:49] Speaker 02:
I'm sorry.

[00:26:49] Speaker 02:
Can I make just one more comment?

[00:26:51] Speaker 02:
In World's v. Bungie, the court said that the determination of real parties in interest under 312A2 is an important determination because it implicates 315B.

[00:27:05] Speaker 02:
So in World's v. Bungie, this court recognized the relationship between 315B and 312A.

[00:27:11] Speaker 02:
And that relationship is one of the basis for why it should be appealable at this stage as well.