[00:00:00] Speaker 04: The next case on the docket is appeal number 22-1016, Click to Call Technologies versus Ingenio. [00:00:11] Speaker 04: Mr. Schick, did I say your name correctly? [00:00:14] Speaker 01: Shee. [00:00:15] Speaker 04: Shee, Mr. Shee. [00:00:17] Speaker 04: You may proceed when you're ready. [00:00:18] Speaker 01: May it please the court. [00:00:19] Speaker 01: My name is Dan Shee on behalf of Click to Call Technologies. [00:00:23] Speaker 01: The district court's judgment was riddled with multiple independent errors, each of which [00:00:29] Speaker 01: requires overturning the judgment. [00:00:32] Speaker 01: I'd like to focus on the IPR estoppel issue, because especially after the Caltech decision, that issue has become particularly and even more clear cut. [00:00:43] Speaker 01: Section 315 imposes IPR estoppel on any grounds that were raised or could have been raised in an IPR. [00:00:52] Speaker 01: And we know from the SAS decision and from Caltech that the scope of an IPR is defined [00:00:59] Speaker 01: by the petition, not by any institution decision. [00:01:03] Speaker 01: The DiZono reference could have been raised, undisputably, reasonably could have been raised in the IPR petition. [00:01:09] Speaker 01: It wasn't. [00:01:10] Speaker 01: Instead, Ingenio relied only on grounds based on the Freeman reference for Claim 27. [00:01:17] Speaker 01: So we clearly fall within the scope of what IPR-STOPL covers, and the Caltech decision confirms that the scope of IPR-STOPL... Excuse me, let me ask you, what do you make or what do you say about footnote 5 [00:01:34] Speaker 00: in the Caltech decision, where I guess Judge Lynn wrote, SAS was decided while IPR proceedings remain pending before the board. [00:01:43] Speaker 00: Accordingly, we need not decide the scope of preclusion in cases in which the board declined to institute on all grounds and issued its final decision pre-SAS. [00:01:54] Speaker 00: We're in that ballpark, aren't we? [00:01:57] Speaker 01: We're in what the footnote is sort of referring to. [00:02:00] Speaker 01: And so yeah, what Caltech did was it interpreted the statute correctly. [00:02:03] Speaker 01: And so we are definitely within the scope of how Caltech interpreted the statute. [00:02:08] Speaker 01: So now the question is, should this court make some sort of judicially created exception to that scope of IPR-STOPL for cases that involved a partial institution? [00:02:21] Speaker 04: Or put another way, is this a case where Shaw still applies? [00:02:25] Speaker 04: Because Footnote 5 and Caltech said, hey, we're not addressing this issue that may have existed in Shaw. [00:02:32] Speaker 04: And so your question might be whether Shaw can be distinguished. [00:02:36] Speaker 01: Well, Shaw absolutely can be distinguished. [00:02:38] Speaker 01: Shaw was addressing a issue that was raised in the IPR, a petition, and then wasn't addressed in the final written decision. [00:02:46] Speaker 01: Here, we're in a world where it's a, in that could have, recently could have raised realm, and there is no reason. [00:02:52] Speaker 04: As I understand it, is that because the IPR was instituted on DiZono, that [00:03:01] Speaker 04: that were in the realm of could have raised because in fact, the PTO did consider DeZono and it was the petitioner's choice not to raise claim 27. [00:03:13] Speaker 01: The petitioner raised claim 27, but asserted only Freeman grounds, just not the DeZono grounds. [00:03:22] Speaker 01: You know, the partial institution here is kind of neither here nor there with regard to why IPR estoppel should apply. [00:03:30] Speaker 01: If you play it out, if the complaint is they were somehow prejudiced because Claim 27, the Freeman grounds on Claim 27 weren't addressed, well, let's play that out. [00:03:40] Speaker 01: You know, if the final written decision had addressed the Freeman grounds, Ingenio might have won or lost on them. [00:03:46] Speaker 01: We think lost. [00:03:48] Speaker 01: But in any event, the DeZono-based grounds for Claim 27 would have been a stop. [00:03:54] Speaker 01: So whether it was a partial institution or a full institution doesn't matter. [00:03:58] Speaker 04: Can I ask you, with the situation, the case would be analogous to Shaw, I think, if the PTO had instituted on the Freeman grounds, but not the DeZono grounds, right? [00:04:10] Speaker 01: No. [00:04:11] Speaker 04: Let me ask you a different question. [00:04:13] Speaker 04: Forget about that question. [00:04:15] Speaker 04: I guess my question is you would agree that they're not a stop from raising the Freeman grounds. [00:04:21] Speaker 01: I would not agree with that, but that would certainly be a different argument because we'd be in a place where they might argue that they haven't had their day on the Freeman-based ground. [00:04:30] Speaker 01: However, [00:04:31] Speaker 01: I will note that as the statute is properly interpreted with the understanding that the IPR scope is defined by the petition, the Freeman-based round is stopped. [00:04:44] Speaker 01: Now, should there be some judicially created exception to that? [00:04:47] Speaker 01: I think not. [00:04:49] Speaker 01: The IPR partial institution arose from a misreading of the statute by the PTAB, thinking that it had the authority to do that. [00:04:59] Speaker 01: One doesn't remedy a misreading of the statute by further misreading the statute. [00:05:03] Speaker 01: Instead, the remedy is to go back to the PTAB and seek vacator of the partial institution decision, thereby undoing the final written decision. [00:05:14] Speaker 01: And in fact, this court, and in fact, in your honor, Judge Stoll's opinion in [00:05:19] Speaker 01: Atlantic Gas Flight versus Bennett Regulator just about a week ago. [00:05:23] Speaker 01: This court reaffirmed that the patent board has the authority to reconsider its institution decisions and to vacate them if it so decides. [00:05:32] Speaker 01: And the interesting thing about that case was in that case the court, in that case the final written decision had already issued and this court had affirmed the final written decision. [00:05:44] Speaker 01: And yet the PTAB was found to have the authority to [00:05:48] Speaker 01: on remand to reconsider its institution's decision and then vacate it. [00:05:54] Speaker 01: So that's the remedy that Ingenio could have taken post-SAS or even post the exhaustion of the appeals in this case, sorry, in the case of the IPR appeals. [00:06:05] Speaker 01: um, could have sought to vacate the IPR partial institution's decision and avoid, uh, IPR estoppel effects, um, rather than complaining to this court about the scope of IPR estoppel under the statute. [00:06:24] Speaker 01: So IPR estoppel absolutely should apply, but that's, so that, that's in the Freeman base ground, but it's absolutely should apply to the DeZono base ground, which was omitted from the petition. [00:06:35] Speaker 01: Um, so, uh, on that ground, the judgment below needs to be, um, with respect to claim 27 needs to be overturned. [00:06:45] Speaker 00: And if that happens, there'll be a determination as to infringement with respect to claim 27. [00:06:54] Speaker 01: At trial? [00:06:55] Speaker 01: Yeah. [00:06:55] Speaker 01: We would proceed to trial. [00:06:57] Speaker 01: Yeah. [00:06:57] Speaker 01: I mean, this court should vacate the decision below and remand for a trial on the claim, which is the infringement, of course. [00:07:07] Speaker 01: So, if the court decides based on the IPR estoppel ground, it doesn't actually need to reach the other grounds of error for claim 27. [00:07:16] Speaker 01: I may touch on those, but I'd like to turn now, unless there are questions about IPR estoppel, to what happened with claims 24 and 28. [00:07:25] Speaker 01: Claims 24 and 28, the district court's summary judgment order decided to disallow, click the call from asserting, continue to assert those claims. [00:07:36] Speaker 01: Those were the claims that survived 27, 24, and 28 were the claims that survived the IPR. [00:07:42] Speaker 01: The district court's disallowance of 24 and 28 was over the express agreement of the parties to litigate those three claims. [00:07:52] Speaker 01: And that's an agreement that was endorsed by the district court. [00:07:54] Speaker 04: This was like eight years later, right? [00:07:57] Speaker 04: Eight years later, and you think that there was an express agreement by both the parties to have those claims litigated because you identified them and nobody noticed until later that no, actually, claims 24 and 28 weren't identified as asserted claims when you were asked to identify them eight years earlier, right? [00:08:18] Speaker 01: Oh, I think, Judge, your question is assuming that there's a possibility that Ingenio simply overlooked that those claims were being asserted in this fight. [00:08:30] Speaker 04: I hear what you're saying, but I don't see an affirmative statement by them saying, oh, we agree that these will be the claims and that it's OK for them to amend the claims that are considered by the court. [00:08:42] Speaker 04: I don't think it's fair to assert that they didn't appreciate, that they [00:08:46] Speaker 04: They agreed. [00:08:48] Speaker 04: You're asserting that they acquiesced, and I just don't see that. [00:08:51] Speaker 01: Well, I think we have to take Ingenio at their word in their district court brief at appendix 3658 in their footnote 1. [00:09:01] Speaker 01: They say there that they raise no issue in the status report with proceeding with claims 24, 10 minutes, 27, and 28, quote, to preserve its, Ingenio's, declaratory judgment counterclaims. [00:09:15] Speaker 01: So they admitted that they wanted, they agreed to litigate all three of those claims because they wanted judgment on their non-infringement and validity counterclaims with respect to those claims. [00:09:26] Speaker 00: Mr. G, isn't the district court, or in this case I guess it was the magistrate acting for the district court, [00:09:31] Speaker 00: Isn't that person entitled to go back and look at the record and make an independent decision as to what claims are going to be heard based upon the earlier determination and decision that was made to which Judge Stoll referred? [00:09:49] Speaker 00: I mean, the court isn't bound, is it, by the colloquy between the parties? [00:09:57] Speaker 01: The parties presented to the court a status report proposing to litigate the three claims and to lift the stay and to proceed with that and to proceed to some, they wanted to file a summary judgment motion before other litigation occurred, but to litigate all three of those claims. [00:10:21] Speaker 01: That was in the status report at the status conference [00:10:26] Speaker 01: It was just confirmatory discussion about proceeding with all three of those claims. [00:10:30] Speaker 04: So your view is that the district court judge was not able to rely on the statements, the notice of claims selected at A1258? [00:10:38] Speaker 01: That notice filed before the IPR. [00:10:42] Speaker 01: After the IPRs were over, before the state was lifted, the parties had a status conference, of course, because a lot of time had passed. [00:10:50] Speaker 02: So there's this huge time frame that I think that Judge Stoll was identifying in [00:10:55] Speaker 02: was, at least I'm struggling with, did anything happen in terms of like updates to the court where there was going to be kind of this switch in claims or was it just literally there's first the statement I think back in 2013 and then there's the status conference in 2020 or so? [00:11:10] Speaker 02: I'm just trying to figure out was there anything intervening where there was some type of communication there might be the switch. [00:11:16] Speaker 01: The case was stayed for seven years. [00:11:19] Speaker 01: Once the IPRs were exhausted and the court said, okay, file a status report so that we can get going again, the parties conferred and developed a joint status report that I've been referring to. [00:11:30] Speaker 02: So the answer is there's nothing, no communication with the court between like that initial [00:11:36] Speaker 02: time period, the 2013 and then the 2020 status on changing the claims. [00:11:40] Speaker 02: Is that right? [00:11:40] Speaker 01: Apologies for interrupting. [00:11:42] Speaker 01: No, not absolutely no communication. [00:11:44] Speaker 01: The court did ask for just periodic status updates on the course of the IPR. [00:11:51] Speaker 04: But no communication regarding what claims were being asserted. [00:11:55] Speaker 01: Right. [00:11:55] Speaker 01: There was no opportunity for that. [00:11:58] Speaker 01: But the critical thing is this isn't about, I'm not talking about a motion to leave to amend here. [00:12:04] Speaker 01: What I'm talking about is there was an actual agreement that the district court overlooked a year later after the status conference when deciding the summary judgment issue. [00:12:18] Speaker 01: And it was arbitrary and capricious to go back on an agreement that the court had endorsed to litigate all three claims. [00:12:25] Speaker 01: And an agreement that was not simply a matter of overlooking or negligence, but one that in general itself says that it wanted because it wanted to proceed on its counterclaims. [00:12:36] Speaker 04: Mr. Shee, during to your rebuttal time. [00:12:38] Speaker 01: Oh, apologies. [00:12:39] Speaker 01: Thank you for the advice. [00:12:42] Speaker 04: Thank you. [00:12:43] Speaker 04: Ms. [00:12:44] Speaker 04: Brule? [00:12:45] Speaker 04: Did I say your name correctly? [00:12:46] Speaker 03: You said it exactly right, and I'm very impressed. [00:12:49] Speaker 04: That never happens. [00:12:51] Speaker 04: Please proceed when you're ready. [00:12:53] Speaker 04: Thank you. [00:12:54] Speaker 03: Good morning, and may it please the court, Amanda Brule, on behalf of Thrive. [00:12:58] Speaker 03: So I'd like to first start preliminarily with Judge Stoll's question, and you were exactly right. [00:13:04] Speaker 03: They did not ask the court for leave to amend their [00:13:08] Speaker 03: their claim selection and instead just put it in the status report and hoped it could proceed that way. [00:13:15] Speaker 03: As counsel said in response to Judge Cunningham's question, I apologize for taking my mask. [00:13:23] Speaker 03: There were periodic updates to the court about the status of the IPR, but in none of those did Click to Call ever raise the fact that they might be changing their claim selection. [00:13:32] Speaker 03: Yes, there was a status report in which Quick Thrive said that it would pursue invalidity of claims 24 and 28, but that was in order to preserve our ability to claim invalidity of those in the event that their infringement allegations were allowed to move forward. [00:13:51] Speaker 03: It did not represent as [00:13:54] Speaker 03: Judge Soll acknowledged anything in the papers that said, hey, we're agreeing to let you redo your claim selection. [00:14:00] Speaker 03: So this argument about some kind of express agreement is just wrong on the papers. [00:14:05] Speaker 03: And so unless there are any additional questions on that, I'd like to move on to the points I would like to affirmatively make today. [00:14:11] Speaker 03: And first, it's IPR estoppel, which does not apply to claim 27, because that claim was not part of the final written decision in the IPR. [00:14:20] Speaker 00: as would be required by the plain language of the statute in order for IVR to be applied. [00:14:30] Speaker 00: a letter on February 28th of this year that came in the wake of Caltech. [00:14:37] Speaker 00: And it concludes, finally, given the impact of the errata, referring to the errata, the Caltech opinion, appellees no longer believe a surreply brief is necessary. [00:14:47] Speaker 00: I would have thought that at that point, [00:14:52] Speaker 00: Pelley would have jumped all over footnote five in Caltech and said, here's why we come, why footnote five answers, gives us an answer to the contention of IPR estoppel. [00:15:12] Speaker 03: Well, your honor, I think the issue there is that footnote five expressly said, we're not deciding IPR estoppel. [00:15:18] Speaker 03: as it applies to cases like ours where there was institution or partial institution pre-SAS. [00:15:24] Speaker 00: Oh, no, I understand. [00:15:24] Speaker 00: I would have thought, though, you would have said, OK, here's the answer to this case. [00:15:29] Speaker 03: Well, we think the answer was already expressly addressed both in our response brief as well as by this court's errata itself. [00:15:38] Speaker 03: So as we noted in our response brief, the plain language of the statute says that [00:15:44] Speaker 03: The petitioner in an IPR is barred with respect to a claim that appears in the final written decision for any grounds it could have raised against that claim. [00:15:56] Speaker 03: And the issue with Caltech was that the decision originally said any claim or ground that could have been raised, but then the errata was issued that corrected that and said a ground that could have been raised for a claim. [00:16:09] Speaker 03: that was in the IPR and in the final written decision. [00:16:11] Speaker 03: And that's entirely consistent with what we've been arguing this whole time, which is that the plain language of the statute simply says that the IPR estoppel only applies to a claim that reaches final written decision. [00:16:24] Speaker 04: But let's say that the PTO instituted on all the issues [00:16:29] Speaker 04: and IPR, you would agree that estoppel applies in that circumstance because though you didn't rely on DiZono for claim 27, you relied on Freeman for claim 27 and claim 27 was an issue. [00:16:43] Speaker 04: So you would say estoppel applies in that circumstance, right? [00:16:47] Speaker 03: Yes, in that circumstance it would, but that's not the circumstance here because claim 27 was not in the final written decision. [00:16:54] Speaker 04: So it's your view that if, let's just assume for a minute that you filed a petition and you didn't challenge claim 27 at all. [00:17:01] Speaker 04: That's right. [00:17:03] Speaker 04: There was no Freeman grounds. [00:17:04] Speaker 04: It was only de Zono based on limited claims that did not include claim 27. [00:17:09] Speaker 04: Your view is that even though claim 27 is a dependent claim that adds like just a few extra words, that you get to challenge, have a second bite of the apple and validity [00:17:19] Speaker 04: with respect to claim 27 in this report, because you chose to limit the issues that were going to be before the PTL. [00:17:26] Speaker 03: Yes. [00:17:26] Speaker 03: And I would call for that to say that it's not truly a second bite at the apple, because you still have issues of issue preclusion and collateral stopple, which were in the alternative grounds that we raised. [00:17:38] Speaker 03: So yes, I can challenge claim 27, because it wasn't in the petition on Desano. [00:17:45] Speaker 03: but it may rise or fall with the IPR in the PTABS decision based on the independent claim, right? [00:17:52] Speaker 03: So even though I can still challenge it, it's IPR estoppel essentially shuts the courthouse door. [00:17:59] Speaker 03: So in this case, the courthouse door is open, but I may not win depending on how the IPR went. [00:18:05] Speaker 03: But by the, you know, the alternative there is if you say, okay, if a claim is not in the IPR, [00:18:14] Speaker 03: And now you can't challenge it at all in district court, then you're essentially saying petitioners have to either bring all claims or no claims if they ever want to argue in validity again. [00:18:22] Speaker 03: And that's simply not what the statute says. [00:18:25] Speaker 04: Why didn't you go back to the PTO and say, hey, SAS says that you need to institute on all grounds. [00:18:34] Speaker 04: You should institute on all grounds. [00:18:36] Speaker 04: Why didn't you take that option that was open to you? [00:18:39] Speaker 03: Well, frankly, because we had one at the IPR, we didn't want them to reopen and reconsider anything. [00:18:44] Speaker 03: And additionally, that's not required. [00:18:46] Speaker 04: We could have claimed 27 considered. [00:18:48] Speaker 03: We could have, but we were still free to challenge that in the district court. [00:18:51] Speaker 03: So it didn't, we didn't need to go back and say, Hey, we need you to re-institute and then argue it on this other ground. [00:18:58] Speaker 03: Cause we were still open to challenging it based on frankly, any ground at the district court level. [00:19:05] Speaker 03: Any other questions on IPR stop at the moment before I move on? [00:19:08] Speaker 03: Thank you. [00:19:09] Speaker 03: So the next issue I'd like to address is issue preclusion, which prevents Click2Call from relitigating the validity of the elements of independent claim one, which was invalidated during the IPR. [00:19:20] Speaker 03: What Click2Call is trying to do is to relitigate that unpatentability determination because of- Can I ask you just one more question? [00:19:28] Speaker 04: Of course. [00:19:28] Speaker 04: I apologize. [00:19:28] Speaker 04: You're not relying on Shaw at all, right? [00:19:30] Speaker 03: No, we are not. [00:19:32] Speaker 04: Thank you. [00:19:35] Speaker 03: So as far as issue preclusion with respect to the elements of claim one, this court has already rejected the argument in XY LLC, which is offered by Click to Call that says the differing standards of burden of proof and that sort of thing between the PTAB and the district court does not provide an exception [00:19:57] Speaker 03: to issue of reclusion. [00:19:59] Speaker 03: Indeed, the court below considered those arguments and expressly rejected them based on the case law, including precedent from this court. [00:20:07] Speaker 03: Particularly, it found that the exact same issue was present in both cases. [00:20:12] Speaker 03: That was the validity of claim one. [00:20:15] Speaker 03: That it had been fully litigated, both at the IPR stage and then, as your honors likely know, that was argued to the Federal Circuit on multiple occasions and even to the Supreme Court, which eventually affirmed [00:20:26] Speaker 03: the invalidity of claim one. [00:20:28] Speaker 03: And then the only issue decided in the IPR was the patentability of claim one. [00:20:34] Speaker 03: So it was necessary to support the judgment. [00:20:36] Speaker 03: And so the only element of issue preclusion that's left is whether there are special exceptions. [00:20:42] Speaker 03: And the lower court expressly found that there had not based on precedent from this court. [00:20:48] Speaker 04: And moreover, Click to Call has not. [00:20:52] Speaker 04: Is the precedent you're relying on here, that's involving [00:20:56] Speaker 04: the application of collateral stopple in a district court case based on something that occurred in a district court case. [00:21:04] Speaker 04: Is that correct? [00:21:05] Speaker 04: Or do you have any collateral stopple cases you're relying on that are based on the first proceeding being in the PTO? [00:21:13] Speaker 03: I believe in XY LLC it was a judgment from the PTAB on invalidity that was found to control. [00:21:22] Speaker 03: So despite the fact that there is this case law stating that these different claim constructions and burns of proof doesn't negate the issue-proclusive effect of an IPR, Click to Call does go on to try to argue the different claim constructions. [00:21:40] Speaker 03: But they don't really prove anything there. [00:21:42] Speaker 03: All they do is say, these are different. [00:21:44] Speaker 03: You never could have proven in the district court that Desano is met. [00:21:48] Speaker 03: and that therefore there should not be issue preclusion. [00:21:51] Speaker 03: They do seem significantly different, don't they? [00:21:55] Speaker 03: They may be different in wording but they never actually address whether the outcome of those two wordings are actually saying something different and we'd also reiterate that [00:22:05] Speaker 03: At the IPR stage, the claim constructions that were offered by Thrive were the claim constructions that were being offered by Click to Call and District Court. [00:22:17] Speaker 04: But that's not the claim construction that the board adopted. [00:22:20] Speaker 03: That's right. [00:22:21] Speaker 03: But we will note that the claim constructions that were adopted, the PTAB did expressly find that they were consistent with the plain and ordinary meaning, which would be the Phillips construction. [00:22:34] Speaker 03: And yes, the district court did reach a different construction. [00:22:36] Speaker 03: But again, both courts believe that was the plain, ordinary meaning in light of the patent. [00:22:44] Speaker 02: I had one more question on this other issue, the 2428 claims. [00:22:49] Speaker 02: So what about the statement where I think you all made it about their three remaining claims? [00:22:54] Speaker 02: Can you just speak to that a little bit? [00:22:55] Speaker 02: Because it seemed to imply that there was some sort of meeting of the minds, but I just wanted to hear your take on that. [00:23:01] Speaker 03: Of course. [00:23:01] Speaker 03: Right. [00:23:02] Speaker 03: So as Mr. Shee mentioned, in the joint status report, plaintiff's position said, we're proceeding on alleging infringement of claims 24, 27, and 28. [00:23:13] Speaker 03: Because those were part of the original complaint, and they were not decided in the IPR. [00:23:18] Speaker 03: Now, as the briefing mentioned, we had a counterclaim as to invalidity in addition to an offense of invalidity. [00:23:25] Speaker 03: And so in order to preserve our right to proceed on those three with respect to invalidity, we had to include that in the status report as well. [00:23:33] Speaker 03: And frankly, regardless of any agreement between the parties, which we don't stipulate that there was one, the district court still has the authority and the discretion to manage their docket how they see fit. [00:23:45] Speaker 03: And so they had the ability to look back and say, hey, wait a minute. [00:23:48] Speaker 03: You already said you're not going to trial on these. [00:23:50] Speaker 03: I don't want to look at them. [00:23:51] Speaker 03: That was within their discretion. [00:23:53] Speaker 03: And there's been no evidence of that being an abuse of discretion. [00:23:59] Speaker 03: And the final issue I'd like to address, if there are no further questions on that, is the alternative grounds for affirmance. [00:24:05] Speaker 03: I'd note that in a footnote to their brief, counsel noted that there was no [00:24:14] Speaker 03: There was no cross-appeal, but a cross-appeal isn't necessary here because it would not enlarge the scope of what, I apologize, I'm losing my place. [00:24:26] Speaker 03: It would not enlarge the scope of their grounds for relief. [00:24:30] Speaker 03: So there's no cross-appeal as necessary, and that's the Biofora case. [00:24:35] Speaker 03: I can provide a site for you in a minute, I seem to have lost it. [00:24:39] Speaker 03: But on the actual grounds for the alternative grounds, [00:24:43] Speaker 03: Um, as was, uh, in the cited case of sovereign software in Ohio Willow, um, if there's no, uh, addition of patentable weight, the court is allowed to find invalidity based on collateral, the ground stick collateral estoppel. [00:25:00] Speaker 03: Um, so the difference between claim one and 27 don't materially alter the question of invalidity. [00:25:10] Speaker 03: or patentability because the concept of advertisement doesn't materially alter that inquiry. [00:25:17] Speaker 03: And that's true for a few reasons. [00:25:20] Speaker 03: In particular, appellants admit that advertisement was known in the prior art because that's all they can point to as showing advertisement in the 836 patent itself. [00:25:33] Speaker 03: is that in the prior art systems, these call bridging was done with advertisements. [00:25:39] Speaker 03: And so for them to now argue that advertisement somehow lends a patentable weight to their invention simply is not true. [00:25:48] Speaker 03: Any further questions? [00:25:49] Speaker 03: Any other questions on that? [00:25:50] Speaker 03: Any further questions? [00:25:52] Speaker 03: OK. [00:25:52] Speaker 03: Well, with that, I'll sit down. [00:25:54] Speaker 03: Thank you very much. [00:25:56] Speaker 03: I appreciate it. [00:25:57] Speaker 03: Mr. Shee, you have about two minutes and 40 seconds. [00:26:02] Speaker 01: Thank you, Your Honor. [00:26:03] Speaker 04: On the collateral estoppel question, the defense- Could you address specifically the language of the statute that says A claim and B claim that is being relied on by Ingenio? [00:26:15] Speaker 01: From the IPR estoppel statute. [00:26:16] Speaker 01: Yes. [00:26:17] Speaker 01: Well, that language has been interpreted. [00:26:21] Speaker 01: So we know from SAS and from the Caltech decision confirming this that the scope of the IPR is determined by the petition, not by the institution decision. [00:26:32] Speaker 01: So a claim and is referring to the IPR, and the IPR is the petition. [00:26:44] Speaker 01: The only place one can raise a ground is in the petition. [00:26:47] Speaker 01: So the idea that the final written decision somehow limits the scope of estoppel is completely false, as this court held in Caltech. [00:26:57] Speaker 04: So your view is because they raised it in the petition. [00:27:00] Speaker 04: It is a claim. [00:27:03] Speaker 01: Because they raised Claim 27 in the petition, it is a claim that was in the IPR. [00:27:07] Speaker 01: And so a stopple should attach to any ground that could have been raised, namely to Zono. [00:27:14] Speaker 01: So unless there are further questions, I'll touch on the collateral stopple issue. [00:27:18] Speaker 01: The defendant has the burden to show the lack of a fact issue on summary judgment on collateral stopple, a lack of a fact issue on identicality. [00:27:28] Speaker 01: They failed that. [00:27:29] Speaker 01: Click to call pointed out key differences in the claim constructions of voice systems and other terms, but we're focusing on voice system. [00:27:40] Speaker 01: That made the difference. [00:27:42] Speaker 01: And not only that, we did not merely point it out and explain why it mattered. [00:27:46] Speaker 01: We even cited evidence in DeZono that the distinction was not present there and therefore mattered as to the inquiry, which was, of course, anticipation, solely anticipation. [00:28:00] Speaker 01: We didn't even have that burden. [00:28:01] Speaker 01: They have the burden to show identicality, the lack of any material difference. [00:28:07] Speaker 01: We pointed out a material difference. [00:28:08] Speaker 01: They never bothered to explain why that wasn't material. [00:28:12] Speaker 01: And they never attempted to rebut the evidence that Click to Call pointed out. [00:28:17] Speaker 01: So I was disturbed to hear the continued mischaracterization [00:28:21] Speaker 01: of our arguments as solely being, well, the claim constructions are different, therefore that's it. [00:28:26] Speaker 01: We didn't just say the claim constructions are different. [00:28:29] Speaker 01: We pointed out the differences, explained why they mattered, and even showed, which was never required, showed that they would actually be outcome determinative. [00:28:38] Speaker 01: So in that matter, there's no identicality. [00:28:42] Speaker 01: And I can point to the district court briefs at 1709 to 11, where this was raised. [00:28:50] Speaker 01: and they cite evidence in DeZono, including, and I'll give you the pin site since the district court brief didn't have the appendix, it was the appendix page 1710. [00:29:01] Speaker 01: I see I'm over, but I'm happy to answer any more questions. [00:29:04] Speaker 04: Any more questions? [00:29:06] Speaker 04: Any questions? [00:29:06] Speaker 04: Okay. [00:29:06] Speaker 04: Thank you, Mr. Shee. [00:29:07] Speaker 01: Thank you. [00:29:08] Speaker 04: The case is submitted.