[00:00:00] Speaker 04:
Next case for argument is 23-1475, Apple v. Gesture.

[00:00:06] Speaker 04:
Ms.

[00:00:07] Speaker 04:
Bosswood, please proceed.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:10] Speaker 03:
May it please the Court?

[00:00:12] Speaker 02:
The board properly held nearly all of the claim.

[00:00:15] Speaker 02:
Can I ask about that?

[00:00:16] Speaker 02:
Just a preliminary housekeeping thing.

[00:00:18] Speaker 02:
There's an overlap between, you weren't counsel, but on the case we just heard, there's an overlap of claims.

[00:00:24] Speaker 02:
So can you just give me the numbers and tell me, this is broad, this includes more than the first, right?

[00:00:29] Speaker 02:
But does it include the entirety of the first appeal?

[00:00:32] Speaker 02:
Yes, Your Honor.

[00:00:33] Speaker 03:
So there are 31 claims in the 431 patent.

[00:00:36] Speaker 03:
In our case, the board held unpatentable 29 of those 31.

[00:00:41] Speaker 03:
It upheld the patentability of claims 11 and 13, which is the subject of Apple's appeal.

[00:00:46] Speaker 03:
In the unified appeal, only the independent claim seven claims are at issue there.

[00:00:53] Speaker 03:
That's the apparatus claim as opposed to the two sets of method claims.

[00:00:56] Speaker 02:
But that's part of the cross-appeal here.

[00:00:58] Speaker 03:
is your honor.

[00:00:59] Speaker 03:
I can get into details about sort of how each of them affects each other.

[00:01:03] Speaker 03:
I think the key points to understand are the court has to address our appeal regardless of the outcome of the unified appeal because claims 11 and 13 were upholding the unified proceeding and unified has not challenged those on appeal.

[00:01:19] Speaker 03:
There are however parts of

[00:01:23] Speaker 03:
our response to gesture technologies cross-appeal that the court would not have to decide here, depending on how the unified appeal comes out, if that is helpful.

[00:01:34] Speaker 03:
And so I'll explain in my rebuttal why gesture technologies cross-appeal arguments are meritless.

[00:01:42] Speaker 03:
As to his two remaining claims, claims 11 and 13, the board legally erred by considering only whether Numizaki states

[00:01:50] Speaker 03:
that the TV telephone of its fifth embodiment is a cellular phone without considering what both the board and gesture technology had previously acknowledged was Apple's argument, namely that a person of ordinary skill would have understood that Numizaki's fifth embodiment is directed to problems that particularly affected cellular video phones at the time

[00:02:14] Speaker 03:
and therefore that a cellular phone implementation was obvious in view of the TV telephone disclosure combined with the knowledge of a person of ordinary skill in the art.

[00:02:23] Speaker 03:
Gesture technology has never disputed that key point, which forms the core of Apple's obviousness case.

[00:02:30] Speaker 03:
Indeed, gesture technology primarily asked this court not even to consider the merits of Apple's argument, focusing instead on an unstoppable theory that is both inexcusably forfeited and unsupported by any factual basis.

[00:02:44] Speaker 03:
If we look at the merits, it's clear that while the board understood Apple's argument at the hearing, in its final written decision, it addressed only an anticipation theory, not the obviousness argument that it had recognized Apple was making.

[00:02:58] Speaker 03:
If we look at Appendix 518, this is from the hearing transcript.

[00:03:03] Speaker 03:
And this is where, in colloquy with Gesture Technologies Council, Judge Hugo, who ended up offering the final written decision, characterizes Apple's argument.

[00:03:14] Speaker 03:
He says that the argument is that, quote, a person of ordinary skill would have understood that Nimazaki's focus on lower communication costs is a concern applicable to cellular phones.

[00:03:28] Speaker 03:
He goes on to recite our expert's testimony.

[00:03:30] Speaker 03:
that it was a concern uniquely applicable to cellular phones and not other types of wireless or wired connections.

[00:03:37] Speaker 03:
He says, you know, so it seems like that's petitioner's main support.

[00:03:42] Speaker 03:
That issue is not addressed in the final written decision at appendix 31 to 32.

[00:03:49] Speaker 03:
The board simply never analyzed what it had recognized was Apple's argument.

[00:03:54] Speaker 03:
and I think for that reason a... What page was that thing on?

[00:03:59] Speaker 03:
That I was quoting from Appendix 518, Your Honor, and it starts at line two.

[00:04:05] Speaker 00:
And this is from the oral argument?

[00:04:07] Speaker 03:
That's from the oral argument, and what he's quoting from there is our expert Dr. Peterson's testimony

[00:04:12] Speaker 03:
his declaration at Appendix 907 to 908 in support of the argument that Apple made in its petition at Appendix 167 that likewise discusses what a person of ordinary skill would have understood about Numizaki's fifth embodiment and its focus on communication costs.

[00:04:30] Speaker 00:
But if I remember correctly, in your brief you say that maybe the board

[00:04:36] Speaker 00:
misunderstood the reliance on the newspaper article as well, right?

[00:04:41] Speaker 00:
Is it a newspaper article?

[00:04:42] Speaker 04:
I think they did, Your Honor.

[00:04:43] Speaker 00:
That's from your Times article.

[00:04:44] Speaker 00:
I'm having trouble with that, so I wanted to ask you about it.

[00:04:48] Speaker 00:
And the reason why is that I see on page A906 your expert specifically said that

[00:04:56] Speaker 00:
a person of ordinary Australian art would have understood that the conference record system is more commonly referred to as a video conference system than video conference telephones.

[00:05:07] Speaker 00:
And such video conference telephones were also known as cellular video phones.

[00:05:14] Speaker 00:
And that incites that article.

[00:05:16] Speaker 00:
Correct.

[00:05:16] Speaker 00:
And so it seems to me this is a problem that the expert made.

[00:05:21] Speaker 03:
That piece of it, the board rejected that statement in Dr. Beaterson's testimony, sort of equating, essentially opining that these two terms are synonymous.

[00:05:30] Speaker 03:
We're not challenging that.

[00:05:31] Speaker 03:
What the board failed to address was the rest of Dr. Beaterson's testimony that goes on at 907 and 908 about why a person of ordinary film art, he talks about this focus on communications costs of being specifically applicable to cellular videophones.

[00:05:47] Speaker 03:
And he says, for that reason, a person with an ordinary skill in the art reading Miyazaki's TV telephone embodiment, which specifically calls out communication costs as a reason for implementing it that way.

[00:05:58] Speaker 03:
He says, a person with an ordinary skill in the art would have understood it to be a cellular videophone.

[00:06:04] Speaker 03:
And when he uses the New York Times article there,

[00:06:07] Speaker 03:
is to say, yes, okay, some of the videophones were not prevalent at the time in the marketplace, but they were being introduced commercially.

[00:06:14] Speaker 03:
You have the Kyocera phone in the New York Times article that is about to be introduced commercially, and so obviously researchers have been working on it up to that time.

[00:06:23] Speaker 03:
And so he says that even though they weren't common in the market, a person would have known about them, supporting his primary opinion that

[00:06:34] Speaker 03:
it's this focus, this common focus on communications.

[00:06:38] Speaker 00:
Well, there's nothing in the article that says specifically you're going to, there's nothing in the art of the patent that refers to cellulite, and this article doesn't prove a video conference to sell those video songs.

[00:06:56] Speaker 00:
So why isn't that enough to respond to that argument?

[00:06:59] Speaker 03:
Because they responded to part of the argument, right?

[00:07:02] Speaker 03:
They responded to the part that says these two terms are synonymous.

[00:07:05] Speaker 03:
Again, fine, we're not challenging that on appeal.

[00:07:08] Speaker 03:
They didn't respond to the substance of his argument, and what the court had recognized at Appendix 518 was the main support for our obviousness argument, which was this common focus on...

[00:07:19] Speaker 03:
communication costs.

[00:07:20] Speaker 03:
I think that's it.

[00:07:22] Speaker 00:
Right.

[00:07:22] Speaker 00:
You could respond to an inference by saying, well, that's an inference, but this is the fact.

[00:07:28] Speaker 03:
But they simply haven't analyzed this.

[00:07:30] Speaker 03:
There's nothing in that discussion that appendix 31 to 32

[00:07:34] Speaker 03:
that addresses our communication cost point, which again was undisputed by gesture technology.

[00:07:39] Speaker 03:
They have never at the board or here disputed that communication costs are a concern that drives the fifth embodiment of Numizaki or that communication costs were specifically and uniquely applicable to cellular video phones at the time.

[00:07:53] Speaker 02:
But you also made the point, and you just referred to it, that cell phones were not prevalent at the time.

[00:07:58] Speaker 02:
And that seems to hurt you rather than help you.

[00:08:00] Speaker 03:
Not probably in the marketplace, your honor.

[00:08:02] Speaker 03:
And that's the reason why Dr. Peterson had to introduce the New York Times article to show, yes, they weren't prevalent in the marketplace.

[00:08:08] Speaker 03:
But again, by the time that you have one being introduced commercially, a cellular video phone being introduced commercially at the same time,

[00:08:15] Speaker 03:
as a 431 patent two years after Numizaki.

[00:08:19] Speaker 03:
And so what he's trying to establish is that, and what he opines, is that that means that researchers will really focus at the time.

[00:08:28] Speaker 03:
And he describes how, and this is an appendix, 907 to 908.

[00:08:36] Speaker 03:
He talks about the fact that

[00:08:42] Speaker 03:
said at 908, a Fosita would have understood that Nimazaki's fifth embodiment is directed to improvements to make such cellular video phones commercially viable.

[00:08:52] Speaker 03:
So right at the time that they are hitting the market, you have this technology that's going to help facilitate that process.

[00:08:57] Speaker 00:
What about the statement that the petition includes no analysis regarding whether the transmission functionality is equivalent of a wireless cellular transceiver or cell phone?

[00:09:09] Speaker 00:
I mean, like, even if there's some

[00:09:14] Speaker 00:
article that says these are prevalent.

[00:09:17] Speaker 00:
I mean, there's nothing that says it's equivalent.

[00:09:20] Speaker 00:
Now, isn't that responsive?

[00:09:21] Speaker 03:
I apologize, Your Honor.

[00:09:23] Speaker 03:
The equivalence analysis there, I believe, is the 112F equivalence analysis.

[00:09:28] Speaker 03:
Claim 11 is a means-plus-function claim.

[00:09:30] Speaker 03:
And so if we were arguing anticipation, we would have to show that Numizaki discloses

[00:09:36] Speaker 03:
the cellular transceiver or its equivalent.

[00:09:38] Speaker 03:
I believe that that's the equivalence analysis that the board is referring to there.

[00:09:42] Speaker 03:
And certainly, we didn't make that argument in the petition, because we were arguing.

[00:09:46] Speaker 00:
You were showing obviousness as well.

[00:09:48] Speaker 03:
We don't have to show it was disclosed, right?

[00:09:50] Speaker 03:
And so the obviousness argument for claims 11 and 13 was that whatever.

[00:09:55] Speaker 00:
Well, you don't have to show that it's disclosed.

[00:09:56] Speaker 00:
But there was no, it would have been obvious to replace the video phone with the cellular phone argument.

[00:10:02] Speaker 00:
Was there in the petition?

[00:10:04] Speaker 00:
Because I looked at it, and I didn't see that.

[00:10:05] Speaker 03:
Because it's not about replacing.

[00:10:07] Speaker 00:
It's about, again, a person with a primary skill in the art reading this prior reference would understand it to disclose cellular.

[00:10:16] Speaker 00:
Even though the reference doesn't say cellular whatsoever.

[00:10:20] Speaker 00:
And no statement, which could have been done, which would have said, hey, the prior art doesn't teach cellular, but cellular would have been known.

[00:10:28] Speaker 00:
Here's a secondary reference that teaches it.

[00:10:31] Speaker 00:
Here's the reason to modify it.

[00:10:33] Speaker 00:
You're not relying on that.

[00:10:35] Speaker 03:
Not a modification, you are.

[00:10:36] Speaker 03:
What we're relying on is the argument in the petition of Appendix 167, supported by Dr. Peterson, at Appendix 907 to 908, that talks about the background knowledge of person-born race.

[00:10:46] Speaker 03:
So I think it's the same analysis as in the real-time data case that we've cited, where it was a single reference to obviousness case.

[00:10:53] Speaker 03:
You had the O'Brien reference, didn't mention dictionary encoding, talked about string encoding.

[00:10:58] Speaker 03:
And the argument was, yes, but here's this other reference, Nelson, that talks about, that demonstrates why a person of ordinary skill would have understood the two to be equivalent, or would have understood the reference in O'Brien to be a form of dictionary encoding.

[00:11:12] Speaker 03:
And what this court said was, you don't have to show motivation to combine those two.

[00:11:15] Speaker 03:
You're not arguing about a modification.

[00:11:17] Speaker 03:
Sure.

[00:11:17] Speaker 00:
The only question here is whether what the board said or not.

[00:11:21] Speaker 00:
for us to understand them to be saying, we don't buy the argument that this prior reference

[00:11:28] Speaker 00:
teaches cellular to a person of ordinary scale ER.

[00:11:31] Speaker 03:
And I think without, yes, and I think without discussing the issue of communication costs at all, which the board had previously... That's a remand argument, though, right?

[00:11:38] Speaker 02:
You've asked for a reversal.

[00:11:39] Speaker 02:
That would be, the most you could get is a remand for the board to then discuss why it doesn't agree with you on the low-cost communication.

[00:11:47] Speaker 03:
We've addressed why reversal would be appropriate.

[00:11:49] Speaker 03:
We've also asked for a remand at a minimum.

[00:11:51] Speaker 03:
Yes, Your Honor.

[00:11:53] Speaker 03:
State the remaining time for my review.

[00:11:59] Speaker 04:
Mr. Wittenseller, please come on back up.

[00:12:03] Speaker 01:
Thank you, Your Honor.

[00:12:20] Speaker 01:
May I please call?

[00:12:23] Speaker 01:
On the substance of claims 1113, one thing that struck out to me in preparation

[00:12:28] Speaker 01:
was that neither of Apple's briefs contained the word burden.

[00:12:32] Speaker 01:
And I think that underlies some of the arguments that we see today.

[00:12:35] Speaker 01:
Everyone agrees that Apple's argument was understood by the board and gesture.

[00:12:46] Speaker 01:
But Apple's argument simply was not supported by the evidence.

[00:12:50] Speaker 01:
Dr. Betterson's reliance on the article

[00:12:53] Speaker 00:
What is your best argument for why you think the court addressed their nuanced argument about how there was some sort of financial suggestion that a person of ordinary family art would understand applies to cellular, and that there's another reference that teaches that cellular videophones were in existence?

[00:13:18] Speaker 01:
So your honor, I think it starts with, and Apple's criticism starts with the fact that the word necessarily was used at different times during the proceeding, whether it be the oral argument or even in the final decision.

[00:13:30] Speaker 01:
Now, Apple points to that as evidence that the board applied the wrong standard.

[00:13:36] Speaker 01:
But it actually comes from Dr. Bederson's own supplemental declaration on appendix

[00:13:45] Speaker 01:
1135, he titled his discussion of his opinions pertaining to the cellular transceiver as, quote, my apologies, your honor.

[00:14:05] Speaker 01:
Numasaki's fifth embodiment would have necessarily transmitted information using a cellular transceiver.

[00:14:12] Speaker 01:
And that's addressing his additional supplemental declaration that he put in when it was made clear by both GTP's expert and the board's institution decision that the argument as to claims 11 and 13 simply wasn't backed by habit.

[00:14:27] Speaker 04:
Do you understand Apple's petition to be arguing that

[00:14:32] Speaker 04:
Numizaki disclosed a cell phone.

[00:14:36] Speaker 04:
Numizaki suggested a cell phone when they used the word TV telephone, a word which made me actually giggle.

[00:14:44] Speaker 04:
I was thinking, gosh, is this because it's a Japanese-translated American patent?

[00:14:48] Speaker 04:
What the heck were they going for?

[00:14:49] Speaker 04:
What the hell is a TV tel... Sorry.

[00:14:52] Speaker 04:
What's TV telephone?

[00:14:53] Speaker 04:
Is there like a question on TV?

[00:14:56] Speaker 04:
I think it's video conferencing is the concept, but anyway, it caused me some amusement when I read the patent, because I was like, wow, there's a lot of words in here that don't make sense, and I'm thinking something might be lost in the translation of this one.

[00:15:09] Speaker 04:
But in any event, do you think that, let me go back to my question, do you believe Apple's petition argued that the word TV telephone means cell phone,

[00:15:19] Speaker 04:
that the word TV telephone suggests cell phone, or that a cell phone would be an obvious substitute for a TV telephone, which is what is disclosed in Numizaki.

[00:15:29] Speaker 04:
What do you think is the scope of their patent?

[00:15:33] Speaker 01:
Certainly, Your Honor, and I believe this came up with my counterpart.

[00:15:37] Speaker 01:
I think it's certainly number one.

[00:15:41] Speaker 01:
It may have varied to number two as the proceedings went forward, but it's certainly not number three.

[00:15:46] Speaker 04:
Yeah, I don't see number three anywhere in the petition.

[00:15:48] Speaker 01:
Yeah, as Your Honor pointed out, it's certainly not there.

[00:15:51] Speaker 01:
And so the question then becomes, would a person of ordinary skill in the art looking at Numizaki infer or see that that term, which we don't understand, actually means cellular phone?

[00:16:03] Speaker 01:
And there's simply no evidence for that.

[00:16:05] Speaker 01:
There's no evidence in the article which posted it.

[00:16:08] Speaker 01:
Well, there's no evidence for it.

[00:16:11] Speaker 04:
It was in its infancy at the time.

[00:16:14] Speaker 04:
And I mean, this is a substantial evidence standard of review.

[00:16:20] Speaker 04:
And I think it's a dumb argument.

[00:16:23] Speaker 04:
You have a lot of different arguments.

[00:16:24] Speaker 04:
If you'd like to continue with this one, you feel free.

[00:16:27] Speaker 04:
If you want to move on to a different one, you feel free.

[00:16:29] Speaker 01:
I'd love to move on, Your Honor.

[00:16:30] Speaker 01:
I would just also point out that to the extent there's any weight given to the argument about

[00:16:37] Speaker 01:
The argument about bandwidth and cost concerns, Dr. Butterson himself actually conceded that those concerns would also apply to both a Wi-Fi or a wired implementation in his declaration.

[00:16:49] Speaker 01:
What I'd like to move on then to your honor is a related issue that again is coming up because of unified patents and how

[00:16:58] Speaker 01:
these different parties interact.

[00:17:01] Speaker 01:
Is our position that from a procedural standpoint, Apple does not have standing to appeal the final written decision as Claims 11 and 13?

[00:17:09] Speaker 01:
And it's that relationship, whether it be real party in interest or... Well, there's just two different questions.

[00:17:15] Speaker 04:
One is standing and one is possibly real party in interest.

[00:17:18] Speaker 04:
I mean, you've sued Apple, so they've got standing, as far as I'm concerned.

[00:17:21] Speaker 04:
That's Article 3.

[00:17:23] Speaker 04:
They're at risk.

[00:17:24] Speaker 04:
You've sued them.

[00:17:25] Speaker 04:
So put standing aside.

[00:17:27] Speaker 04:
What you mean is the real party and interest issue, and I think you've waived it.

[00:17:30] Speaker 04:
So tell me why you haven't waived it.

[00:17:32] Speaker 01:
We haven't waived it, Your Honor, because of we are bringing it up within the context of no standing.

[00:17:40] Speaker 01:
You're bringing it up on appeal.

[00:17:42] Speaker 01:
You never raised it before the board.

[00:17:44] Speaker 01:
Right.

[00:17:44] Speaker 01:
And we couldn't have because of the shark ninja just, presidential opinion before the board.

[00:17:48] Speaker 01:
I think, what Pat?

[00:17:49] Speaker 01:
Because of the, I'm sorry, I didn't hear you.

[00:17:51] Speaker 01:
I'm sorry, Your Honor.

[00:17:51] Speaker 01:
It's the shark ninja, presidential opinion.

[00:17:53] Speaker 01:
We raised it in our briefing.

[00:17:55] Speaker 01:
And essentially what it says is for a period of time,

[00:17:59] Speaker 01:
Pan-owners would raise real party interests and failure to identify all real parties and interests as a ground for dismissing an IPO.

[00:18:09] Speaker 00:
What about our case law like Acoustic, which holds that real party and interest inquiries are waived when the arguments aren't presented to the board?

[00:18:20] Speaker 01:
That's why, Your Honor, we're moving to, that's why our argument is based on the lack of standing.

[00:18:27] Speaker 02:
But Unified came out, and you had at least a week before this opinion came out by the board.

[00:18:35] Speaker 02:
And so you could have gone into.

[00:18:38] Speaker 02:
gone in and asked and advised the board, look, we've got this other opinion.

[00:18:43] Speaker 02:
There's an issue of real party and interest.

[00:18:45] Speaker 02:
You shouldn't move forward on issuing this case.

[00:18:47] Speaker 02:
And from what I could see from the record, as the chief pointed out, you didn't do that.

[00:18:52] Speaker 01:
That's correct, Your Honor.

[00:18:54] Speaker 01:
But it's so opposition that Apple lacks standing under this court's decision in Boeing.

[00:19:00] Speaker 04:
How can you say Apple lacks standing?

[00:19:01] Speaker 04:
They've got injuring facts.

[00:19:02] Speaker 04:
You sued them.

[00:19:04] Speaker 04:
How can you say they lack standing?

[00:19:05] Speaker 04:
Standing is a constitutional concept.

[00:19:08] Speaker 01:
injury in fact because 315 e1 under 315 e1 they cannot continue to continue with the IPR that they filed so you're not arguing article 3 standing you're arguing some sort of statutory standing argument that could have made in the agency it's our position that we could not have made it before the agency with respect to standing because the PTAD doesn't determine

[00:19:36] Speaker 01:
whether they have standing to appeal PTAB decisions to this court.

[00:19:40] Speaker 00:
Do you mind speaking up just a tad?

[00:19:42] Speaker 00:
I'm sorry.

[00:19:42] Speaker 00:
I mean, I agree with you, but I think it'll be easier if you just speak up a little bit more.

[00:19:47] Speaker 00:
Certainly not.

[00:19:47] Speaker 02:
Well, but the statute says 315E1 talks about their ability to maintain a proceeding before the office.

[00:19:55] Speaker 02:
It doesn't talk about appeals.

[00:19:57] Speaker 02:
So I don't understand why that's an answer to why you didn't bring it to the attention of the board.

[00:20:03] Speaker 02:
in a timely fashion.

[00:20:05] Speaker 01:
I think that would apply to if we're asking this court to terminate the Apple IPR or order the PTAB to terminate the Apple IPR.

[00:20:17] Speaker 01:
But here we're saying that because of 315E1 and the estoppel provision there, that Apple no longer has standing here under the court's decision in Boeing versus the Commissioner of Patents and Trademarks.

[00:20:30] Speaker 04:
What about what court decision in Boeing and what do you think it stands for?

[00:20:34] Speaker 01:
So at Boeing, Your Honor, it's Boeing Company versus Commission of Patents, 853 Federal Second, 878.

[00:20:48] Speaker 04:
And what do you think it tells us?

[00:21:00] Speaker 04:
I mean, I just know that all of our standing cases in these IPRs are about people who weren't sued, right?

[00:21:06] Speaker 04:
That's the nature of the standing cases that we have.

[00:21:09] Speaker 04:
It's, oh, goodness, you filed an IPR, but you weren't sued, so you have no injury in fact.

[00:21:14] Speaker 04:
And we say, that's true if you weren't sued.

[00:21:17] Speaker 04:
But when you are sued, you actually have injury in fact.

[00:21:19] Speaker 04:
So I mean, if you're talking about a statutory provision, that seems waivable.

[00:22:00] Speaker 01:
My apologies, Your Honor.

[00:22:01] Speaker 01:
I quoted or cited the following just for the proposition that standing can't be waived.

[00:22:06] Speaker 01:
It was actually the intuitive surgical decision.

[00:22:09] Speaker 01:
It was Ethicon 25, Federal 4th, page 1035, and the pin site is 1043.

[00:22:19] Speaker 01:
quote is once 315 E1 prohibits the petitioner slash RPI slash privy for maintaining an IPR the petitioner RPI privy ceases to be a party under section 141 319 placing it outside the zone of interest established by the congressionally authorized rights appeal in those provisions.

[00:22:40] Speaker 04:
Well yeah I totally get that the problem is you didn't argue 315 to the board and therefore

[00:22:48] Speaker 04:
We don't know if Apple ceases to be or is a real party in interest.

[00:22:54] Speaker 04:
Anyway, why don't you move on?

[00:22:56] Speaker 04:
You've got a lot of other issues.

[00:22:57] Speaker 04:
Can I ask you just one more question?

[00:22:58] Speaker 02:
One more question on that is that what is your view about the impact of what you're asking for?

[00:23:04] Speaker 02:
So you're saying as a consequence of how you're reading the statute, Apple can't proceed with its appeal, but you can appeal, you can continue to proceed with your cross-appeal?

[00:23:15] Speaker 01:
I think it would.

[00:23:16] Speaker 02:
Or does it undo the entire IPR if they were a real party in interest, which nobody's adjudicated yet.

[00:23:23] Speaker 01:
The request of relief here would be limited to claims 11 and 13.

[00:23:28] Speaker 02:
OK.

[00:23:28] Speaker 02:
OK.

[00:23:29] Speaker 02:
Can I ask you one other technical question, which is, I think I recall that in Gray, you were making arguments with respect to this issue about estoppel, standing, whatever we want to call it.

[00:23:39] Speaker 02:
This isn't part of your cross appeal, right?

[00:23:42] Speaker 02:
This is part of your response to the main appeal.

[00:23:45] Speaker 02:
Am I understanding the way this case is going down?

[00:23:50] Speaker 02:
I believe that's right.

[00:23:51] Speaker 02:
And so therefore, under our rules of briefing, you would not be able to, in your gray brief, in this case, in your gray brief, you're confined to the issues raised in the cross appeal.

[00:24:02] Speaker 02:
So those arguments made in gray with respect to the main appeal are not properly raised in the final brief, right?

[00:24:14] Speaker 01:
I think we raised the issue in our...

[00:24:18] Speaker 01:
in our opening brief.

[00:24:19] Speaker 04:
Well, of course you do.

[00:24:20] Speaker 04:
But your opening brief is both a response and a cross appeal.

[00:24:24] Speaker 04:
But these are issues that go not to the cross appeal, but rather than the response.

[00:24:28] Speaker 04:
So I think the notion is kind of like, remember how I reminded you in the last case, you're coming up on rebuttal.

[00:24:33] Speaker 04:
You can only address the issues that were raised.

[00:24:36] Speaker 04:
It's a similar thing.

[00:24:37] Speaker 04:
In a gray brief, when you have a cross appeal, you can only address the cross appeal.

[00:24:40] Speaker 04:
You can't address the other.

[00:24:41] Speaker 02:
I don't remember the precise what you did in the issues.

[00:24:44] Speaker 02:
But I think there were arguments made with respect to the sustainable standing issue.

[00:24:51] Speaker 02:
is likely improper.

[00:24:52] Speaker 02:
Certainly, Your Honor.

[00:24:53] Speaker 04:
I'm not going to let you move on.

[00:24:54] Speaker 04:
I'm going to say one more thing.

[00:24:56] Speaker 04:
Whether somebody's a real party in interest to the question of fact, I don't get to make questions of fact or decide them.

[00:25:02] Speaker 04:
That's another reason why it's waived if not waived before the board.

[00:25:07] Speaker 04:
Because I can't decide a question of fact in the first instance.

[00:25:09] Speaker 04:
Only the board can.

[00:25:10] Speaker 04:
Then I can review those questions of fact.

[00:25:12] Speaker 04:
So anyway, go ahead.

[00:25:14] Speaker 02:
Are you asking for a remand on that?

[00:25:16] Speaker 01:
I think your honor, one of the issues that patent owners run into is this sort of limbo we're in.

[00:25:22] Speaker 01:
with respect to the timing of when Unified will file patents as well as its members, and when the estoppel attaches, typically after final decision.

[00:25:30] Speaker 02:
Well, here it seems pretty clear.

[00:25:32] Speaker 02:
I mean, you had a final decision in one case, you had a pending proceeding in the other, you run into the board and you said, hey, look at 315E, you should stop what you're doing now, right?

[00:25:45] Speaker 02:
That's how I read this, what I read the statute is contemplating, right?

[00:25:50] Speaker 02:
And you didn't do that here.

[00:25:51] Speaker 01:
We didn't do it here.

[00:25:52] Speaker 01:
We've also been turned down in similar circumstances.

[00:25:56] Speaker 01:
Your Honor, with respect to the remaining arguments, the grounds are very similar between the two petitions.

[00:26:03] Speaker 01:
They're both based on Numizaki.

[00:26:06] Speaker 01:
So if the board has any questions about any of them.

[00:26:09] Speaker 02:
So what happened, just as a logistical matter, if we were to hypothetically affirm the first case, does that

[00:26:17] Speaker 02:
take care of the cross appeal or is in this case.

[00:26:22] Speaker 01:
So in the first case claims 11 and 13 are not an issue because Unified does not have standing to appeal them.

[00:26:30] Speaker 01:
So those stand.

[00:26:30] Speaker 02:
11 and 13 are part of the main appeal right.

[00:26:32] Speaker 02:
They're not.

[00:26:33] Speaker 02:
I asked about the cross appeal not the main appeal.

[00:26:35] Speaker 02:
Maybe I'm confused.

[00:26:36] Speaker 01:
I'm sorry I thought you were referring to that.

[00:26:38] Speaker 02:
No I was referring to the cross appeal.

[00:26:40] Speaker 02:
What issues are left in the cross appeal if we were to

[00:26:46] Speaker 02:
case we just heard.

[00:26:47] Speaker 01:
The remainder would be there your honor.

[00:26:48] Speaker 01:
It's the prior determinations of the board based on Numizaki for the primary claim.

[00:26:55] Speaker 02:
If we were to affirm the claims, we would affirm one, the claims are gone.

[00:27:00] Speaker 02:
So what's left?

[00:27:01] Speaker 02:
Are there any claims left in the cross appeal that wouldn't be covered by the first appeal?

[00:27:07] Speaker 02:
I don't know the answer to this, so I'm asking you.

[00:27:09] Speaker 01:
So the first appeal is claims 11 and 13, and then this appeal is... I'm not talking about the prior appeal.

[00:27:15] Speaker 04:
I think what you mean, your answer to the question is claim 1 and 14.

[00:27:19] Speaker 04:
Your answer to the question should be claim 1 and 14.

[00:27:22] Speaker 04:
This case involves 1, 7, 12, and 14.

[00:27:25] Speaker 04:
The last one involves 7 through 13, so therefore it doesn't involve 1 and 14.

[00:27:29] Speaker 04:
That should be your answer to Judge Press.

[00:27:32] Speaker 04:
Okay, thank you.

[00:27:33] Speaker 04:
Your time is up.

[00:27:34] Speaker 04:
Let's hear from Ms.

[00:27:35] Speaker 04:
Fosford on rebuttal.

[00:27:51] Speaker 03:
Two points briefly, Your Honors, and I won't address the cross-appeal in substance because my opponent did not.

[00:27:56] Speaker 03:
So I believe this will be the final piece of this argument.

[00:27:58] Speaker 03:
First, on the merits of claims 11 and 13, on the issue of the word necessarily, at appendix 1135, I want to clear up how Dr. Peterson was using that term.

[00:28:07] Speaker 03:
That was, if you have a cellular phone, it necessarily uses a cellular transceiver, not that it necessarily discloses a cellular phone.

[00:28:16] Speaker 03:
And recall that at this point, I want to correct a slight misstatement by the other side.

[00:28:21] Speaker 03:
Claim 13 was instituted on.

[00:28:23] Speaker 03:
Gesture technology did not challenge that in its preliminary patent owner response, and the board found we had established a reasonable likelihood of showing that Numizaki rendered obvious a cellular phone.

[00:28:33] Speaker 03:
The issue was just about the means for transmitting in that cellular phone as to claim 11.

[00:28:37] Speaker 03:
Turning to the issue of what we're calling standing, but which is, in fact, an estoppel issue, Chief Judge Moyer corrects it's a question of fact that this court reviews for substantial evidence.

[00:28:49] Speaker 03:
It's also a question on which the patent owner bears the burden of production, which this court has held in AIT and Vernetics, for example.

[00:28:57] Speaker 03:
They have the obligation to bring this up to the board.

[00:29:00] Speaker 03:
There is a mention of Shark Ninja.

[00:29:03] Speaker 03:
That's actually not addressed in our briefing in this case, so I'm not familiar with that particular decision.

[00:29:08] Speaker 03:
What I am familiar with is, for example, the argument that gesture technology made in this case at appendix 224 to 226.

[00:29:16] Speaker 03:
It argued that the board should exercise its discretion to deny institution under 314D, and the basis for that argument was, Apple is a dues-paying member of Unified Patents.

[00:29:28] Speaker 03:
The idea that they can now say, we didn't know the basis for our stop argument, which is the exact same basis, Apple is a dues-paying member of Unified Patents, is simply implausible, even if the court were to consider it, despite it being raised in their great brief at a procedurally improper point.

[00:29:44] Speaker 03:
Also, again, I don't have the shark ninja case, but what I do have is the memory web versus apple case that is cited in our reply brief.

[00:29:55] Speaker 03:
I think that's instructive as to how the board would in fact view this procedural question of forfeiture.

[00:30:02] Speaker 03:
In that case, recall there had been the memory web unified decision where there was initially a finding of real party and interest that was later vacated by the director.

[00:30:10] Speaker 03:
The patent owner in that case raised an estoppel argument after the hearing in that case, and the board said that was too late

[00:30:21] Speaker 03:
that it had an obligation to raise it in its patented response.

[00:30:25] Speaker 03:
And the response was, well, the final written decision that we think forms the basis for estoppel hasn't issued yet.

[00:30:30] Speaker 03:
The board said, that doesn't matter.

[00:30:31] Speaker 03:
You knew that that proceeding was going on.

[00:30:34] Speaker 03:
You should have put the parties and the board here on notice that this could be an issue, among other reasons, so that we could align the timing and prevent any estoppel from happening in the first place.

[00:30:44] Speaker 02:
But this case went even further than that, because here, they already had the decision.

[00:30:50] Speaker 02:
and they didn't go back to the board in the other proceeding.

[00:30:53] Speaker 03:
I believe the timing is such that this case was on appeal, but I apologize.

[00:30:59] Speaker 03:
I've gotten confused with the timing.

[00:31:02] Speaker 03:
They certainly waited longer in this case.

[00:31:03] Speaker 03:
They didn't raise it until they were on appeal.

[00:31:05] Speaker 03:
They never even tried to raise it at the board.

[00:31:07] Speaker 03:
And for that reason, it's clearly forfeit.

[00:31:09] Speaker 03:
If I may briefly make a point, the intuitive case footnote eight recognizes the difference between constitutional and statutory standing.

[00:31:18] Speaker 04:
Okay, she did not address the cross-appeal, so there is no rebuttal, and besides, her time has expired anyway, so this case is taken under submission.

[00:31:27] Speaker 04:
Thank you both.