[00:00:00] Speaker 05: Our final argued case this morning is Lincoln v. Samson, 2023-2346. [00:00:06] Speaker 05: Mr. Schreiner again. [00:00:11] Speaker 01: Good morning, Your Honors. [00:00:13] Speaker 01: I'm Steve Schreiner, here to address the Board's decision and the IPR involving the 400 patent. [00:00:20] Speaker 01: This appeal involves three [00:00:22] Speaker 01: discrete issues of claim construction and one issue of statutory construction. [00:00:26] Speaker 01: I know there's a lot of interest in the printed publication issue. [00:00:30] Speaker 05: Let me address that first. [00:00:32] Speaker 05: Yes, Your Honor. [00:00:36] Speaker 05: Some of the issue with respect to some of the claims clearly relates to whether Martin is a printed publication. [00:00:47] Speaker 05: And that apparently is in accordance with recent patent office practice. [00:00:55] Speaker 05: Why should we overturn an established practice? [00:01:00] Speaker 05: It's plausible. [00:01:02] Speaker 05: It's rational. [00:01:05] Speaker 01: The province of the court is to interpret the statute and not defer to PTO practice or even PTO agency interpretation. [00:01:17] Speaker 01: We don't have agency interpretation here. [00:01:19] Speaker 01: We have the regulations set forth by the office indicating that this type of 102E1R is within the ambit of printed publications under Section 311B. [00:01:29] Speaker 00: So let's look at the statute. [00:01:32] Speaker 01: Pardon me? [00:01:33] Speaker 00: Let's look at the statute. [00:01:34] Speaker 00: Yes. [00:01:36] Speaker 00: Under 311B, does the reference to printed publications not include a published patent application? [00:01:44] Speaker 01: It does not include a published patent application. [00:01:47] Speaker 01: that was not published before the critical date. [00:01:50] Speaker 01: of the Patent Act issue pursuant to the long-standing judicial construct. [00:01:54] Speaker 00: So it's a printed, working with the statutory language. [00:01:58] Speaker 00: It's a printed publication. [00:02:00] Speaker 00: Is it not a printed publication? [00:02:01] Speaker 00: It's printed and it's published. [00:02:03] Speaker 00: How is printed publication? [00:02:06] Speaker 00: The second question, which may be what's the date that we associate with that, which is answered in another portion. [00:02:14] Speaker 00: But as to whether or not it fits printed publication, are you really disputing that? [00:02:19] Speaker 01: He published patent application, is a printed publication as of some date. [00:02:24] Speaker 00: Exactly. [00:02:25] Speaker 00: So all printed publications are... [00:02:30] Speaker 00: we have a certain priority date. [00:02:33] Speaker 00: The other part of the statute refers to 102, which includes 102E, which establishes what with respect to printed publications is the appropriate filing date as prior art, right? [00:02:47] Speaker 00: So that's the way I come together by suggesting the statute is, I can't say 100% clear, but pretty clear on its face. [00:02:57] Speaker 01: I respectfully submit that the statute is clear on its face. [00:03:01] Speaker 01: But printed publication, what Your Honor is proposing is that printed publication under Section 311B has a different meaning than printed publication under Section 102. [00:03:11] Speaker 01: And we know that the case law tells us there's a presumption that the same term used in a statute in multiple places means the same thing. [00:03:19] Speaker 01: And we know also that our interpretation of a statute is guided by established judicial construction. [00:03:26] Speaker 01: And we have over nearly 150 years of established judicial construction [00:03:31] Speaker 01: that a prior art printed publication means a reference that was publicly available before the critical date of the patent. [00:03:38] Speaker 00: Well, until 1999 in the statute, there was not a publish. [00:03:42] Speaker 00: A publication requirement came in under Section 122. [00:03:46] Speaker 00: So if you agree, as I think you have, that published applications do constitute printed [00:03:55] Speaker 00: publications. [00:03:56] Speaker 00: They come under that umbrella. [00:03:58] Speaker 00: Then why isn't the question then, and does the statute in any way dictate that certain printed publications have some certain treatment with respect to the filing date and others have a different treatment? [00:04:10] Speaker 00: Why is that? [00:04:11] Speaker 00: Because E2 does call E1, does call out published applications. [00:04:19] Speaker 01: Your Honor referenced the AIPA of 1999. [00:04:21] Speaker 01: The AIPA of 1999 [00:04:23] Speaker 01: first created 102E1 type prior art, and it also introduced inter-parties re-examination. [00:04:30] Speaker 01: So Congress had the opportunity at that point to change the language governing what types of categories of prior art can be used in these post-ground proceedings. [00:04:40] Speaker 01: Congress did not change the language. [00:04:43] Speaker 01: It left the language as prior art consisting of patents or printed publications. [00:04:48] Speaker 01: If Congress wanted to introduce and include [00:04:51] Speaker 01: the newly created 102e category of prior art, it would have done so. [00:04:55] Speaker 00: I thought you had agreed with me that published applications do constitute prior art. [00:05:01] Speaker 00: I mean, do constitute printed publications. [00:05:04] Speaker 00: They're printed and they're published. [00:05:05] Speaker 00: You're saying that printed publications includes everything other than published applications? [00:05:12] Speaker 01: No, I'm not saying that at all. [00:05:14] Speaker 01: Printed publication is a reference [00:05:16] Speaker 01: that is publicly accessible before the critical date of the patent at issue. [00:05:21] Speaker 01: And that printed publication can be an article or it could be a published patent application. [00:05:26] Speaker 01: In the case of a published patent application, it is only a printed publication pursuant to the established judicial construction. [00:05:34] Speaker 01: It's only a prior printed publication if it was availed publicly accessible. [00:05:38] Speaker 01: before the critical date of the patent. [00:05:40] Speaker 00: I understand your comment. [00:05:42] Speaker 00: And we've got a lot, because all of our cases preceding 99, 99% of our printed publication cases deal with books, accessible library. [00:05:54] Speaker 00: And those certainly have these requirements you state when it was available to the public. [00:06:02] Speaker 00: But there's nothing inherent [00:06:04] Speaker 00: And again, in Congress's inclusion of a printed publication to include published applications. [00:06:12] Speaker 00: And if that's true, why does the law or the statutory language preclude a different filing date under 102, which is also referenced in 311B, to apply that? [00:06:26] Speaker 00: That's the law, too. [00:06:27] Speaker 00: I mean, we're dealing with combining two statutory provisions. [00:06:32] Speaker 01: Section 311B, I think, can fairly be characterized as a filter. [00:06:38] Speaker 01: It identifies certain categories of prior art that can be considered in IPRs. [00:06:43] Speaker 01: Section 102 sets forth these various categories of prior art, such as on sale, in public use. [00:06:52] Speaker 00: But don't we all agree that the legislative history here was pretty focused and the reason for [00:06:59] Speaker 00: including the term printed publications, was to include evidentiary issues that belong better in the district court, right? [00:07:07] Speaker 00: I mean, that's the whole history. [00:07:09] Speaker 01: I'm not sure I follow the question. [00:07:10] Speaker 03: Oh, OK. [00:07:11] Speaker 03: The idea is to channel documentary challenges to the board and keep the non-documentary defenses to district court, right? [00:07:21] Speaker 01: I understand that. [00:07:22] Speaker 01: That was the intent and that's the structure. [00:07:23] Speaker 01: You would agree with that? [00:07:25] Speaker 01: No, respectfully not. [00:07:26] Speaker 01: That was not the intent. [00:07:27] Speaker 01: There's no evidence in the legislative history of the AIA or the AAPA that the language, prior art patents or printed publications, encompasses all quote unquote document based prior art. [00:07:41] Speaker 01: We know from your decision in Qualcomm that for example, AAPA in the patent, which is document based prior art, is not a permissible basis in an IPR because it is not a prior art patent or a prior art printed publication. [00:07:56] Speaker 01: We know that, for example, you can have on-sales where there's a written offer for contract accompanied by a specification, and that's document-based. [00:08:05] Speaker 01: But we know that that would not be permissible in an IPR because that is on-sale prior art. [00:08:10] Speaker 01: It is not a prior art printed publication. [00:08:13] Speaker 00: If we were to adopt your view of the statute, [00:08:16] Speaker 00: It's a practical matter. [00:08:18] Speaker 00: Does that mean that the petitioner would bifurcate various grounds for obviousness and the grounds that include an application and they require the prior art date to go with the application filing? [00:08:34] Speaker 00: They could pursue those in district court. [00:08:36] Speaker 00: And they could pursue the others. [00:08:38] Speaker 00: There wouldn't be an estoppel, would there? [00:08:41] Speaker 00: Because if you're not allowed, under your view, you're not allowed to bring that before the board. [00:08:46] Speaker 00: So is that the way the system would work, in your view, that you would bifurcate the 210? [00:08:51] Speaker 01: First, if a published application was not prior as of the date of filing the petition, then it could not have reasonably been raised. [00:08:58] Speaker 01: And so it's not subject to 315E2 estoppel. [00:09:01] Speaker 01: So that's the answer to that question. [00:09:04] Speaker 01: The second question about the differential treatment of these proceedings, these obviousness challenges before the board and before the district court, that's baked into the statute. [00:09:13] Speaker 01: The statute says that IPRs can only be conducted based on these certain categories of prior art. [00:09:19] Speaker 01: So it's baked into the statute that the district court proceeding can handle other obviousness type challenges based on on sale, in public use, public knowledge, et cetera. [00:09:28] Speaker 00: But as Judge Stark pointed out earlier, there's clearly a suggestion in Congress in the statutory legislative history that there was a reason for that. [00:09:37] Speaker 00: The reason was because district courts are better shaped to handle evidentiary issues. [00:09:43] Speaker 00: It doesn't seem like this filing date question belongs in that box. [00:09:49] Speaker 01: I think at the end of the day, we can speculate what Congress's intent was. [00:09:55] Speaker 01: We can hypothesize what Congress's intent should have been. [00:10:00] Speaker 01: We can speculate about what would be the best policy and how would be the best way to go about it. [00:10:06] Speaker 01: But here, where we've got statutory language and a structure in the AIA, which is clear, and it's linked to long-established [00:10:15] Speaker 01: judicial construction of printed publications. [00:10:18] Speaker 05: And you're saying that this isn't a 102E situation where a patent, a later issuing patent, is given a prior out status as of its filing date. [00:10:34] Speaker 05: This isn't a patent. [00:10:35] Speaker 05: This is arguably a patent application being asserted to be a printed publication. [00:10:42] Speaker 01: Yes, Your Honor. [00:10:43] Speaker 01: If this reference, the Martin reference here, had actually matured into a patent instead of being abandoned, then it would qualify. [00:10:51] Speaker 00: But you would also say that even as it was published, it could get the filing date of the publication, right? [00:10:59] Speaker 01: It would be entitled to the [00:11:01] Speaker 01: It would be entitled to the publication date for purposes of IPRs, and it would be deemed prior art if that publication date was prior to the priority date of the patent, which of course is not the case here, where the Martin reference is indisputably published after the priority date of the 400 patent. [00:11:21] Speaker 03: But if Martin had matured eventually into an issued patent, it would get the date, it would become prior art as of its date of filing, correct? [00:11:30] Speaker 01: Yes, we agree that it would, because it falls under the category of patent, then it falls within the ambit of 311B. [00:11:37] Speaker 01: But here, this Martin reference did not mature into a patent. [00:11:42] Speaker 01: So the question is under 311B, is it a prior art patent or is it a prior art publication? [00:11:47] Speaker 01: Well, we know it can't be a prior art patent, [00:11:49] Speaker 01: So the question is, is it a prior publication? [00:11:51] Speaker 01: And that takes us back to the longstanding judicial obstruction of that term. [00:11:57] Speaker 05: You're into your bottle time. [00:11:58] Speaker 05: You wish to save it or continue? [00:12:01] Speaker 01: I think I better save it. [00:12:02] Speaker 05: All right. [00:12:04] Speaker 01: Thank you. [00:12:04] Speaker 05: Mr. Modi, you're going to take 13 minutes, and then we'll hear from the Patent Office. [00:12:13] Speaker 02: Thank you, Your Honor. [00:12:14] Speaker 02: Good morning. [00:12:15] Speaker 02: May it please the court? [00:12:17] Speaker 02: Can I ask you a question about that? [00:12:21] Speaker 00: Your friend seems to rest on what seems to have an argument that may have some heft, which is that printed publications, the touchstone, the soil that comes with the term printed publications, requires public accessibility. [00:12:36] Speaker 00: And therefore, why are we saying that a printed publication here, the printed application, gets the prior filing date before it was publicly accessible? [00:12:48] Speaker 02: So, Your Honor, it goes back to the statute. [00:12:49] Speaker 02: We obviously disagree with them. [00:12:51] Speaker 02: I think if you look at Section 311, as you were pointing out earlier, it refers to printed publication, and that's just referring to merely a category of prior art, right? [00:13:01] Speaker 02: And they all even admit that [00:13:03] Speaker 02: applications are published. [00:13:04] Speaker 02: They are a printed publication. [00:13:06] Speaker 02: So really the question here for the court is, what is the effective date of that publication? [00:13:12] Speaker 02: And I think Section 35 USC 102E1 gives us that answer. [00:13:19] Speaker 05: And so from our perspective... That's only with respect to a patent. [00:13:23] Speaker 02: So, Your Honor, with respect to the patent, it would be 102E2, right? [00:13:27] Speaker 02: And with respect to the application, it would be 102E1. [00:13:30] Speaker 02: And I think that actually supports our argument because they're actually... 102E1. [00:13:36] Speaker 02: Exactly, Your Honor. [00:13:37] Speaker 02: And I think that supports our argument. [00:13:39] Speaker 02: I apologize. [00:13:40] Speaker 02: I flipped the two. [00:13:41] Speaker 02: I think that supports our argument because they agree that section for patents, it is prior art. [00:13:47] Speaker 02: under Section 102E1 as if it's filing date, but they of course say that it's not with respect to the publications, right? [00:13:56] Speaker 02: And we think Congress certainly didn't intend that result, and in fact, we believe the statute is clear. [00:14:03] Speaker 02: And that ends the inquiry here, because really, again, the issue is our patent applications, published applications, printed publications, they clearly are. [00:14:12] Speaker 02: And section 102E1 tells us the priority date for those patent applications, as Your Honor pointed out. [00:14:20] Speaker 05: That says, published by another, filed in the United States before the invention for the applicant, the patent. [00:14:30] Speaker 02: That's correct. [00:14:31] Speaker 05: This was published afterwards. [00:14:33] Speaker 02: So, Your Honor, if you look at Section 102E2, as you pointed out, what it tells us is that in that scenario, when it's published after, right, the effective filing date is the filing date of the patent application. [00:14:50] Speaker 05: 102E relates to a patent. [00:14:53] Speaker 02: 102, so if you look at 102, 102E2 relates to a patent. [00:14:58] Speaker 05: 102 relates to a patent. [00:14:59] Speaker 02: Right, right, Your Honor. [00:15:00] Speaker 05: This is not that case. [00:15:01] Speaker 02: So, right, and here we're talking about 102E1, and from our perspective, again, the statute makes clear that you look at, it says, prior art consisting of patents and printed publications, right, pursuant to section 102, and as Judge Pritzker... Yeah, the language in 102E is confusing. [00:15:19] Speaker 00: It is. [00:15:20] Speaker 00: But I don't understand, and your friend correctly or wrong, that there's, that parties dispute the meaning of that, which is that the application [00:15:29] Speaker 00: we'll get the date of the application is the prior date. [00:15:37] Speaker 02: And I think, Your Honor, where we should look at is the case law and, of course, Congress's intent here. [00:15:44] Speaker 02: And I think, Judge Lurie, you pointed to this too. [00:15:47] Speaker 02: There's established patent office practice here. [00:15:49] Speaker 02: We do think, you know, I want to go back and I want to make it crystal clear, our position [00:15:53] Speaker 02: the statute does make it clear, right? [00:15:55] Speaker 02: Under Section 1, both under 102E1 and 102E2, whether it's a patent or a printed publication, the effective prior date is the filing date, right? [00:16:06] Speaker 05: How about with respect to a CBM? [00:16:08] Speaker 05: That's explicit, isn't it? [00:16:10] Speaker 02: It is explicit. [00:16:11] Speaker 05: So if in this very same statutory enactment, Congress made it explicit for a CBM, the fact that it didn't here tells us something. [00:16:23] Speaker 02: And I think it actually supports us, Your Honor. [00:16:25] Speaker 02: In this case, Congress knew what it was doing, and I think this goes back to Judge Post, what you were saying, and Judge Stark, a little bit of what you were saying. [00:16:33] Speaker 02: You have to look at this statute in the context of how this came about, right? [00:16:38] Speaker 02: This concept of using printed publications goes back to 1980s, when the ex parte re-exam statute was constructed. [00:16:44] Speaker 02: Congress used a broad term. [00:16:46] Speaker 02: It said printed publication at that time. [00:16:48] Speaker 02: And it really was directed to precisely what your honors pointed to, that you wanted to have printed art available for re-examination because the other types of art, public use and public sale, were evidentiary issues. [00:17:02] Speaker 02: So that was really not in the purview of the patent office. [00:17:05] Speaker 02: And then you have the AIPA comes in place, JetPros, as you pointed out. [00:17:09] Speaker 02: And that makes patent applications publications, right? [00:17:13] Speaker 02: And when you look at that context, and after that, you have the PTO for over 20 years. [00:17:19] Speaker 02: The PTO, the board, the courts have interpreted both the AIPA and Section 102E and Section 301 or 311 to basically say, yes, you can use printed patent applications under Section 102E1 as prior art. [00:17:38] Speaker 05: If we disagree, the PTO can go to Congress and plug up the hole, right? [00:17:43] Speaker 02: Certainly, Your Honor, they can, but I do believe here that you do have enough against, if you start with the statute, it's clear. [00:17:51] Speaker 00: But do you agree that printed publications encompasses two things, at least with respect to the priority dates, right? [00:17:58] Speaker 00: Because if it's a publication, it's as if the data became publicly accessible. [00:18:04] Speaker 02: So I agree, Your Honor, that [00:18:08] Speaker 02: Even a patent application that's published can have two different dates from a priority perspective. [00:18:14] Speaker 02: It can have a date under Section 102A or B, and it can also have a date under 102E. [00:18:19] Speaker 02: I think perhaps what you're getting at is, and I think you're right, the case law that they're pointing to, it all goes to non-patent application prior art. [00:18:27] Speaker 02: It goes to articles. [00:18:28] Speaker 02: It goes to thesis. [00:18:29] Speaker 02: And in those cases, this court has time and again said it is a public accessibility issue, but when you have patent applications that are printed publications, it is Section 102E that tells us the answer. [00:18:42] Speaker 00: And in that respect, since we're dealing with it follows what it's done with respect to patents, as Judge Stark pointed out, that you go back to the date of filing of the application. [00:18:51] Speaker 02: Exactly. [00:18:52] Speaker 02: Precisely, Your Honor. [00:18:53] Speaker 02: And Congress could not have been more clear. [00:18:55] Speaker 02: And I'll point you to some of the legislative history that's also discussed in the briefs. [00:19:00] Speaker 02: If this Court had a doubt, again, we believe this question is simple. [00:19:03] Speaker 02: The statute answers it. [00:19:04] Speaker 02: But if you had any doubt, for example, if you look at [00:19:09] Speaker 02: The House report, this is for the AIPA, it's 106-287 at 56. [00:19:14] Speaker 02: In amending Section 102E to add published patent applications, the House report stated Congress intended to quote, to treat an application published by the PTO in the same fashion as a patent published by the PTO. [00:19:28] Speaker 02: We think that shows Congress's intent that when it put in printed publications, applications into place, it was intending that they would be used in the same fashion as patents would be. [00:19:39] Speaker 00: But it is not your position that an application that is never published or not published in a certain time is entitled to anything. [00:19:48] Speaker 00: Completely agree, Your Honor. [00:19:49] Speaker 02: That's a different issue. [00:19:51] Speaker 02: And that's not before you today. [00:19:54] Speaker 03: What's your view on a stoppile? [00:19:55] Speaker 03: Do you agree with your friend that [00:19:58] Speaker 03: If we were to agree with the way the board has interpreted the statute, it would essentially, well, it would have an impact on estoppel. [00:20:11] Speaker 02: So I agree, Your Honor. [00:20:13] Speaker 02: I believe it would have an impact on the estoppel. [00:20:18] Speaker 02: It probably wouldn't be stopped in those instances, right? [00:20:20] Speaker 02: Because you could not have raised that prior art, such as Martin, in that instance. [00:20:24] Speaker 03: And I confuse myself. [00:20:25] Speaker 03: If we were to agree with Link's position, which is contrary to the board, then it would be sort of narrowing the estoppel provision. [00:20:33] Speaker 03: And it would, at least as a policy and practical matter, it would undermine some of the efficiencies [00:20:40] Speaker 03: that it appears Congress may have intended to achieve with IPRs. [00:20:44] Speaker 03: Is that right? [00:20:45] Speaker 02: Completely agree, Your Honor. [00:20:46] Speaker 00: And it's completely at odds with what we know to be Congress's intent in defining printed publications to take one group of stuff out because it belonged in the district court because of evidentiary reasons. [00:21:00] Speaker 00: This aspect of it doesn't fit within that, right? [00:21:03] Speaker 02: Completely agree, Your Honor. [00:21:04] Speaker 02: And I think what you have to look at is, and you both make the point, which is, [00:21:09] Speaker 02: from a policy perspective, right? [00:21:11] Speaker 02: If you kind of move down sort of the statutory interpretation route, this would be bad policy, right? [00:21:16] Speaker 02: Because of precisely what you pointed out. [00:21:18] Speaker 00: Yeah, but that's not... We've got to stick to the statutory language. [00:21:22] Speaker 00: I don't think Justice Gorsuch would appreciate it. [00:21:25] Speaker 00: Right. [00:21:25] Speaker 05: No, and Your Honor, my point is that... Are there any kinds of publications other than patents that are given the benefit of 102E? [00:21:35] Speaker 05: Are there any other kinds of [00:21:38] Speaker 05: publications that are given prior art status as of a date other than when they're published, like when they were submitted to a journal. [00:21:48] Speaker 02: So, Your Honor, I believe the, I don't believe so, other than, for example, if you were able to show when they became publicly accessible. [00:21:58] Speaker 02: So, right, it really goes to, and that's why I think in this case, it's not disputed that these are printed publications, it just goes back to the effective date. [00:22:06] Speaker 05: The question, when? [00:22:08] Speaker 05: As of when? [00:22:08] Speaker 02: Exactly. [00:22:09] Speaker 02: And I think section 102E tells us, gives us that answer. [00:22:13] Speaker 05: 102E1 says before, before the invention, [00:22:20] Speaker 02: That's right, Your Honor. [00:22:22] Speaker 02: And if you go back to look at Section 102, right, what it says is the invention was described in Court 1 and applications were patent published under Section 102 by another filed in the United States before the invention. [00:22:35] Speaker 02: right? [00:22:35] Speaker 02: And it parallels one section 102E2, Judge Laurie, and maybe this is the point you're getting at. [00:22:41] Speaker 02: I just want to make sure that I understand your question. [00:22:43] Speaker 02: Because remember, before we had a 102E1, it was just 102E2, right, which was just a patent. [00:22:50] Speaker 02: And it's been longstanding, going back to Supreme Court case law, [00:22:53] Speaker 02: that when a patent is filed, right, and it issues as a patent, the effective filing date for that patent is its filing date. [00:23:01] Speaker 02: It should be no different. [00:23:02] Speaker 02: The answer should be no different for a published application such as Martin under Section 102E1. [00:23:06] Speaker 02: I hope I addressed your honest question. [00:23:11] Speaker 05: You addressed it, yeah. [00:23:12] Speaker 00: Language in E is not crystal. [00:23:15] Speaker 00: None of it. [00:23:16] Speaker 00: I mean, none of 102 language. [00:23:17] Speaker 00: It all sort of does the same sort of weird description. [00:23:22] Speaker 00: Your Honor, I just disputed that interpretation, right, of 102. [00:23:25] Speaker 02: Exactly. [00:23:26] Speaker 02: Exactly. [00:23:26] Speaker 02: I think it's now disputed that that's how 102E has been applied for forever. [00:23:33] Speaker 02: And I just want to go back to an idea. [00:23:35] Speaker 05: How could it be forever? [00:23:38] Speaker 02: Fair enough, since the system was enacted. [00:23:41] Speaker 02: And I'll just end with that the USPTO, Judge Laurie, I think you started with this and I want to make sure I give the PTO some time as well. [00:23:51] Speaker 02: Since the statute was enacted, right, if you look at, I'm going back to AIPA, right, 1999, the USPTO has interpreted this provision as including [00:24:04] Speaker 02: printed applications, right, that are available for re-exams and IPRs. [00:24:09] Speaker 02: And of course Congress has assumed when it legislates, it's presumed to be aware of administrative and interpretation of the statute. [00:24:16] Speaker 05: So from our perspective... Oh, that almost sounds like Chevron. [00:24:20] Speaker 02: So we're not relying on Chevron. [00:24:23] Speaker 02: We understand, obviously, Chevron is history. [00:24:25] Speaker 02: But if you do go back to even the Loper case, it does say that the court can look at. [00:24:31] Speaker 02: It should pay due respect. [00:24:32] Speaker 02: It's certainly persuasive. [00:24:34] Speaker 01: But again, from our perspective. [00:24:35] Speaker 01: That's Skidmore. [00:24:36] Speaker 01: Sorry, Your Honor. [00:24:36] Speaker 02: Skidmore. [00:24:37] Speaker 02: Sure, Your Honor. [00:24:37] Speaker 02: And from our perspective, again, the statute is clear. [00:24:41] Speaker 02: And this court should affirm on that basis. [00:24:45] Speaker 05: All right. [00:24:45] Speaker 05: Let's hear from the public office. [00:24:55] Speaker 04: Thank you, and may it please the court. [00:25:02] Speaker 04: The issue I see with LINC's argument is that they're ignoring the fact that 311b imposes two separate requirements on a reference to be used in an IPR. [00:25:15] Speaker 04: It both has to be prior art, and then it has to be either a patent or a printed publication. [00:25:22] Speaker 04: And there's no dispute here that a published patent application [00:25:25] Speaker 04: is a printed publication. [00:25:27] Speaker 04: And the question becomes, when did it become prior art? [00:25:32] Speaker 04: And the answer is in 102E1 that it becomes prior art as if it's violent. [00:25:37] Speaker 04: And I think if you look at it that way, the statute makes sense. [00:25:44] Speaker 00: But as I asked Mr. Madin, [00:25:52] Speaker 00: It all brings with it its soil. [00:26:02] Speaker 00: And if you look at printed publications historically, the whole point of printed publication is to make them available prior art at the time they're accessible to the public. [00:26:12] Speaker 00: So you acknowledge that this is a variation of what is historically viewed as a printed publication. [00:26:21] Speaker 04: Correct. [00:26:21] Speaker 04: This is different than the non-patent document cases, where the question is, we don't even know if it was made accessible to the relevant public. [00:26:32] Speaker 04: If something was presented at a conference or in a library in Germany, you have to decide if that's even [00:26:41] Speaker 04: quote unquote, publicly accessible. [00:26:43] Speaker 00: Here there's no question. [00:26:44] Speaker 00: Applications were not printed publications before 1999, right? [00:26:49] Speaker 00: Because they weren't published. [00:26:51] Speaker 00: There wasn't the requirement for publication. [00:26:53] Speaker 00: Correct. [00:26:54] Speaker 04: We're not asserting that non-published, we agree that non-published applications do not fit in 311B. [00:27:02] Speaker 04: The point is that there's no question that published patent application is publicly accessible. [00:27:09] Speaker 04: The agency publishes those applications through its website, and they're accessible to everyone, especially patent examiners. [00:27:19] Speaker 04: The question then becomes, what is the effective prior art date? [00:27:25] Speaker 04: In the non-patent document case, those questions come together into one, because the question is, when it's publicly accessible and when it's prior art, it's the same date. [00:27:37] Speaker 04: But here, we have a special rule for published patent applications that's reflected in 102E. [00:27:45] Speaker 04: And so that is the difference. [00:27:47] Speaker 00: And the similar rule and analogous rule applies to patents themselves. [00:27:51] Speaker 00: Correct. [00:27:52] Speaker 05: Well, patents themselves, that goes back to 102E. [00:27:55] Speaker 05: That's almost forever. [00:27:58] Speaker 05: But 102E1, which you're relying on, says published by another [00:28:05] Speaker 05: before the invention by the applicant for patents. [00:28:09] Speaker 05: So doesn't that show some of our facts here? [00:28:14] Speaker 05: Because this was published after. [00:28:17] Speaker 04: I think the key language in 102E1 is filed in the United States. [00:28:23] Speaker 04: So it's keying the prior effect based on the filing date. [00:28:28] Speaker 04: So if it's filed by another in the United States before the invention, [00:28:34] Speaker 04: than its prior art. [00:28:35] Speaker 03: So you read before the invention as modifying filed and not published. [00:28:39] Speaker 03: Correct. [00:28:43] Speaker 05: Any other final thought? [00:28:46] Speaker 04: I would just say that this would go, that ruling in Link's favor would go against the policies and intent behind both the re-exam statute and the IPR statute. [00:29:00] Speaker 04: And I think that's made clear, and I think that this court has [00:29:03] Speaker 04: held so in Qualcomm and Quad Environmental. [00:29:09] Speaker 05: Thank you. [00:29:09] Speaker 04: Thank you. [00:29:11] Speaker 05: Mr. Schreiner has some rebuttal time. [00:29:14] Speaker 01: Yes, Your Honor. [00:29:16] Speaker 05: Tell us what 102E1 means. [00:29:22] Speaker 01: What 102E1 expresses is that a patent application that publishes under 122B [00:29:31] Speaker 01: is effective as prior art as of its filing date, if that was before... As of the filing date of the application. [00:29:39] Speaker 01: That's right. [00:29:40] Speaker 01: That's 102E1, which, again, our... So you agree with the other side. [00:29:45] Speaker 01: I mean, there's no... No, absolutely not. [00:29:48] Speaker 01: This all goes back to the basic question, the fact that the PTO and Samsung are taking the position, the printed publication under 302E... My only question was about 102E. [00:30:01] Speaker 00: So you agree with the way they read and the Patent Office reads 102E, is allowing printed applications to go back to the filing date of the original application? [00:30:14] Speaker 01: 102E1. [00:30:16] Speaker 01: We agree with that interpretation. [00:30:18] Speaker 01: Now, the Patent Office, the PTO just mentioned the intent and the history. [00:30:25] Speaker 01: If we look at these statutes, the re-examination statute in 1980, [00:30:29] Speaker 01: There's no legislative history reflecting an attempt to encompass these types of published applications because that category of prior art did not exist. [00:30:37] Speaker 01: In the AIPA in 1999, there's no legislative history indicating that Congress implicitly rewrote that very same language prior art consisting of patents or printed publications to mysteriously include the newly created prior art category 102E1. [00:30:53] Speaker 01: And then with the AIPA in 2011, there's no legislative history there at all. [00:30:58] Speaker 00: But in 122, in the 1999 Act, for the first time, maybe I'm wrong. [00:31:03] Speaker 00: My understanding is for the first time, they required publication of patent applications. [00:31:09] Speaker 00: So prior to that, they didn't constitute printed publications. [00:31:14] Speaker 00: But after the Act, they did, right? [00:31:17] Speaker 01: And correct. [00:31:17] Speaker 01: And they created 102E1, codifying that. [00:31:20] Speaker 01: But what Congress did not do, Congress elected not to modify the statute defining [00:31:27] Speaker 01: the types of prior art that could be permitted in these post grant proceedings. [00:31:31] Speaker 01: Congress maintained the same language, prior art consisting of patents or printed publications. [00:31:36] Speaker 01: If Congress wanted to include the newly created prior art category 102E1, it would have done so, but Congress didn't. [00:31:44] Speaker 01: And so what we have is almost 45 years of history, spanning from 1980 to the passage of the AIPA in 2011, continuing to use that same statutory language [00:31:57] Speaker 01: over the course of nearly 45 years. [00:32:00] Speaker 01: And we know also from the Helsing case that with regard to the passage of the AIA, if there is a previously established judicial construction of the term printed publication, then it's presumed that that's also incorporated into the new legislation that is reenacted using that very same language. [00:32:20] Speaker 01: My friend from Samsung mentioned the legislative history of the AIPA. [00:32:26] Speaker 01: The legislative history of the AIPA doesn't even use the word printed publication. [00:32:32] Speaker 01: Secondly, or thirdly, let me refer to section 901.02 of the MPEP. [00:32:38] Speaker 01: This is cited in Link's brief at page 31 through 32, Link's reply brief. [00:32:43] Speaker 01: In section 901.02, this is a section of the MPEP from 2001 that the PTO cited in favor of its argument. [00:32:54] Speaker 01: Now, what section 901.02 [00:32:56] Speaker 01: is it recognizes published patent applications as being printed publications as of their publication date. [00:33:03] Speaker 01: And I'll read you the language. [00:33:07] Speaker 01: If an abandoned application was previously published under 35 USC 102B, that patent application publication is available as prior art under 35 USC 102A and 102B as of its patent application publication date because the patent application publication [00:33:24] Speaker 01: is considered to be a printed publication within the meaning of Section 102A and 102B. [00:33:31] Speaker 01: So the MPEP which the PCO cites as alleged agency practice and so forth, the one place where it grapples with this issue of published patent applications, it says that [00:33:42] Speaker 01: they are par art as a printed publication as of their publication date. [00:33:49] Speaker 00: I actually didn't think that that was disputed because they're not, I mean that's why we had 122, that printed publications don't consist of applications that never resulted in a printed application. [00:34:03] Speaker 01: Yeah, the point was just that the PTO appointed the 2001 MPEP on this issue as alleged agency practice and nowhere in that [00:34:12] Speaker 01: in those sections of the MPEP pointed out by the PTO, does it actually grapple with the issue of whether 102E1 type prior art is a printed publication within the ambit of the statutory language prior art printed publications, I'm sorry, prior art patents or printed publications. [00:34:31] Speaker 01: And I'd also like to add very quickly that the notion forwarded by the PTO and Samsung that the determination of whether something's a prior art publication is actually a two-step inquiry. [00:34:42] Speaker 01: where first you determine, OK, is it a printed publication as of any time? [00:34:46] Speaker 01: And then if the answer is yes, then you get to go hunt under section 102 for any category of prior art. [00:34:53] Speaker 01: And if it's a prior art under any of those categories, then it's a prior art printed publication. [00:34:58] Speaker 05: Thank you, counsel. [00:35:00] Speaker 05: Your time has been exceeded. [00:35:02] Speaker 05: We have your case. [00:35:04] Speaker 05: The case is submitted. [00:35:05] Speaker 01: Thank you very much.