[00:00:00] Speaker 05:
The first case for argument is 22-1957, Q3 networking versus ITC.

[00:00:08] Speaker 05:
Mr. Kimball, whenever you're ready.

[00:00:10] Speaker 02:
Thank you, Your Honor.

[00:00:13] Speaker 02:
Justin Kimball for the opponent, Q3 networking.

[00:00:15] Speaker 02:
May it please the court?

[00:00:17] Speaker 02:
The commission's near wholesale and verbatim adoption of intervenors advocacy is not a reasoned decision under the APA.

[00:00:26] Speaker 02:
Thus, it is arbitrary and capricious

[00:00:28] Speaker 02:
It should be remanded.

[00:00:30] Speaker 05:
And is that what you told the commission on review?

[00:00:33] Speaker 02:
Yes, your honor.

[00:00:35] Speaker 02:
In the petition, we said, I believe it is six times, that there was extensive copying.

[00:00:43] Speaker 02:
We've cited that in our brief.

[00:00:44] Speaker 02:
And I can give you additional sites here.

[00:00:46] Speaker 05:
Yeah, but extensive copying doesn't at least do it for me.

[00:00:51] Speaker 05:
Because what you started off by saying, which is what I think you would like the case to be about, was it sufficiently reasoned decision under the APA?

[00:01:02] Speaker 05:
Did you make that argument to the commission?

[00:01:05] Speaker 02:
We did not cite the APA, Your Honor.

[00:01:07] Speaker 02:
No, we did not.

[00:01:08] Speaker 02:
We said, for example.

[00:01:09] Speaker 04:
Who really cares?

[00:01:12] Speaker 04:
I mean, if the ALJ copies a bunch of findings, in fact,

[00:01:16] Speaker 04:
in conclusions of law.

[00:01:18] Speaker 04:
These are huge records.

[00:01:20] Speaker 04:
The proceedings have a huge number of issues, and they're incredibly compacted in time.

[00:01:26] Speaker 04:
This is the way it works.

[00:01:27] Speaker 04:
As long as the ALJ looked at this, and then he pointed out to the commission that there was copying.

[00:01:34] Speaker 04:
And the commission apparently was on notice and still found that the ALJ's decision was OK.

[00:01:39] Speaker 04:
It appears that they copied it.

[00:01:40] Speaker 04:
As long as we know that they reviewed

[00:01:43] Speaker 04:
the ALJ's findings and agreed with them to the extent they did.

[00:01:49] Speaker 04:
It seems an incredibly weak argument to me.

[00:01:51] Speaker 04:
I think if you had an argument about the sufficiency of the findings and think they're wrong, rather than this kind of insubstantial procedural argument, you should be focusing on why the commission is wrong, not how it went about making a decision.

[00:02:07] Speaker 02:
Thank you, Your Honor.

[00:02:08] Speaker 02:
A couple of responses.

[00:02:09] Speaker 02:
So I'll maybe start at the end and go backwards.

[00:02:13] Speaker 02:
So with respect to making specific substantive arguments, so we do identify some such arguments.

[00:02:20] Speaker 02:
It is impossible, seriously, within the page limits that we have to address all of the issues because of the amount of copying.

[00:02:28] Speaker 02:
So it wasn't just a piece here and a piece there.

[00:02:31] Speaker 05:
We have literally- Why do I understand what you're saying?

[00:02:33] Speaker 05:
It was impossible to address the issues because of the copying?

[00:02:36] Speaker 05:
What has one got to do with the other?

[00:02:38] Speaker 02:
Oh, because, so, yes, Your Honor.

[00:02:41] Speaker 02:
The issue is this.

[00:02:42] Speaker 02:
So what we have is we have respondents file these post-hering briefs to very long issue point out.

[00:02:49] Speaker 02:
90% plus of that is copied into the initial termination blessed by the commission.

[00:02:54] Speaker 04:
All that means is that ALJ agreed with them.

[00:02:57] Speaker 02:
Well, it could mean that.

[00:02:58] Speaker 02:
That's fair.

[00:03:01] Speaker 02:
But we don't know why the ALJ agreed with them, because it's just their arguments.

[00:03:07] Speaker 02:
It's their advocacy.

[00:03:08] Speaker 02:
It's not what we would normally see.

[00:03:10] Speaker 05:
Well, he agreed with their advocacy.

[00:03:13] Speaker 05:
He puts it in as his.

[00:03:16] Speaker 05:
Otherwise, he could copy what they said and put it in quote marks and then say, I agree with everything they said.

[00:03:22] Speaker 02:
Well, respectfully, what I would say is, so that's generally not what we see.

[00:03:26] Speaker 02:
That's not what we see in legal opinions.

[00:03:29] Speaker 02:
That's what has been criticized in the cases that we've cited.

[00:03:35] Speaker 02:
Normally, the advocates make their arguments.

[00:03:37] Speaker 02:
Judges, as you all do, you receive those.

[00:03:40] Speaker 02:
You wrestle with them.

[00:03:41] Speaker 02:
Then you explain your reasoning why one side or the other is right.

[00:03:45] Speaker 04:
Well, his reasoning duplicates their reasoning.

[00:03:48] Speaker 04:
And he didn't feel like reinventing the wheel.

[00:03:51] Speaker 02:
So what I would say to that is, I can see that in certain respects, perhaps.

[00:03:57] Speaker 02:
I do think this is a reasonableness test.

[00:04:00] Speaker 02:
I mean, that's what the cases that we've talked about.

[00:04:04] Speaker 02:
They talk about a zone of reasonableness.

[00:04:06] Speaker 02:
So I understand and see opinions where portions of briefs might be quoted or that very closely track.

[00:04:15] Speaker 02:
And I understand that.

[00:04:16] Speaker 02:
But we're talking about,

[00:04:18] Speaker 02:
the analysis for three patents on infringement and technical DI almost verbatim.

[00:04:24] Speaker 04:
It's hard to... And now he thought they had good arguments and you had bad arguments, so he adopted yours.

[00:04:30] Speaker 04:
Why aren't you challenging the arguments rather than saying, on this record, and I mean, you're doubly in trouble here because not only did the ALJ adopt not all, but maybe most, you told the commission he did that, and nonetheless, they still affirm.

[00:04:47] Speaker 04:
So they looked at it.

[00:04:49] Speaker 04:
They knew there was company.

[00:04:50] Speaker 04:
And they're still OK with it.

[00:04:52] Speaker 04:
Why should we care how the commission operates for its findings, effect, and conclusions of laws as long as we can discern the legal basis and the factual basis for their conclusions and review them under the proper standard?

[00:05:04] Speaker 05:
Unless they're challenged by you on the merits, which you were free to do and you haven't done.

[00:05:10] Speaker 02:
So we've done it in some respects, but understood we haven't challenged the entire opinion.

[00:05:17] Speaker 02:
what I was trying to say earlier is because every because the respondents challenged every element of every claim and because all that was adopted we couldn't within the page limits

[00:05:32] Speaker 02:
even fully overturn all of those issues.

[00:05:36] Speaker 02:
It's very unusual.

[00:05:38] Speaker 05:
We don't get that many ITC cases on appeal, but all of them contain voluminous.

[00:05:45] Speaker 05:
This one was over 300 pages.

[00:05:46] Speaker 05:
I don't think that's outside of the norm of the ALJ opinions we get from the ITC.

[00:05:52] Speaker 05:
No one has ever come up to us and said, it's so voluminous, and we didn't have enough pages, so we couldn't challenge

[00:06:00] Speaker 05:
the merits of the case.

[00:06:01] Speaker 02:
So first of all, I agree with your honor, generally.

[00:06:03] Speaker 02:
I think they're very wrong.

[00:06:03] Speaker 04:
It's not per se wrong just because they copied.

[00:06:06] Speaker 04:
So to say that we couldn't challenge all the evidences of copying, we only challenge the ones where you think the conclusion of law or the factual finding is incorrect.

[00:06:15] Speaker 04:
This happens all the time on appeals.

[00:06:18] Speaker 04:
You can't make every argument on appeal that you think where the district court or the agency or whatever got it wrong.

[00:06:24] Speaker 04:
That's not the way appellate practice works.

[00:06:26] Speaker 02:
Understood.

[00:06:27] Speaker 04:
You pick the important ones.

[00:06:28] Speaker 02:
Yes, Your Honor.

[00:06:29] Speaker 02:
Understood.

[00:06:30] Speaker 02:
And generally, you can identify whatever it is, one, two, three, issues that would overturn the case in your favor.

[00:06:37] Speaker 02:
Here, this is what I'm trying to say.

[00:06:38] Speaker 02:
That's literally not possible to do because of the amount of issues.

[00:06:44] Speaker 04:
You can't read the ALJ's opinion and say, well, I guess on that one, we don't really have a good basis to challenge it.

[00:06:51] Speaker 04:
Your presumption is because he copied, it was wrong.

[00:06:55] Speaker 04:
And my response to that is that is an insubstantial argument.

[00:07:00] Speaker 04:
Copying alone does not mean the ALJ got it wrong.

[00:07:03] Speaker 04:
You have to look at what the finding of fact was

[00:07:07] Speaker 04:
or the legal conclusion, and determine whether, under the appropriate standard of review, that's something you want to pursue further, rather than just complain about copying.

[00:07:20] Speaker 02:
So I understand your Honor's position.

[00:07:23] Speaker 02:
I respect it, obviously.

[00:07:25] Speaker 02:
I would say two things.

[00:07:26] Speaker 04:
First of all, are you interested in talking about the merits?

[00:07:30] Speaker 04:
Because I'm done asking you about this.

[00:07:33] Speaker 04:
I mean, you're not going to win with me on this copying issue.

[00:07:36] Speaker 02:
So if you want to waste your time Whatever arguments you think you've preserved in the briefing in this case sure So you're on what we did we did we did we provide some examples to try to demonstrate that there were real issues And it wasn't just copying and so we did that with respect to the seven seven six seven seven patent and a five three And so with respect to the six seven seven patent we identified claim one and we talked about issues with the preamble and claim elements 1 a b and c

[00:08:07] Speaker 02:
So and then with respect to the 853 patent, we just addressed claim one.

[00:08:14] Speaker 02:
But is that properly addressed for us as an issue?

[00:08:17] Speaker 02:
Is that your view?

[00:08:18] Speaker 02:
Yes.

[00:08:19] Speaker 02:
Yes, Your Honor.

[00:08:20] Speaker 02:
I think it's probably for you as an issue.

[00:08:23] Speaker 02:
It's addressed in our opening brief.

[00:08:28] Speaker 05:
Well, you talked about failure to consider contrary evidence.

[00:08:31] Speaker 05:
I didn't know whether that was kind of under the heading of

[00:08:36] Speaker 05:
didn't have a reasoned explanation for a final determination, and didn't consider all the other arguments.

[00:08:43] Speaker 05:
It didn't strike me as you were making a merits decision, although I certainly agree with Judge Hughes.

[00:08:48] Speaker 05:
It's probably what you should have done.

[00:08:51] Speaker 02:
Yes, Your Honor.

[00:08:52] Speaker 02:
So this would be section 3B, starting on page 10 of our opening brief.

[00:08:57] Speaker 02:
Yeah, that's exactly where I am.

[00:08:58] Speaker 03:
What is the merits argument you think you put before us with respect to claim one of the 677?

[00:09:02] Speaker 02:
OK, so we have several now.

[00:09:06] Speaker 02:
Here again, Mr. Polk, you have to win on all three of these, but nonetheless.

[00:09:10] Speaker 02:
First of all, the ALJ appears to have, well, he did not find the preamble limiting, like didn't make a finding of that, but sort of by implication did, because then he required that the accused systems include two communicating devices, which is only present in the preamble.

[00:09:30] Speaker 03:
And your argument is preamble is not limiting.

[00:09:34] Speaker 02:
Actually, yes.

[00:09:35] Speaker 02:
My argument, first of all, is that nobody made the argument one way or the other, but effectively he found it.

[00:09:40] Speaker 02:
But yes, that it's not limiting and that that demonstrates that the ALJ just accepted their brief and didn't.

[00:09:52] Speaker 05:
But the argument you were making here under 3A on page 10 is the pervasive nature of the commission's copying of respondents' briefs.

[00:10:00] Speaker 05:
precludes review on the merits.

[00:10:02] Speaker 05:
So you weren't asking us to review the merits, right?

[00:10:06] Speaker 02:
Yes, Your Honor.

[00:10:07] Speaker 02:
So that goes back to what I was trying to explain earlier, that our view was that it precludes review because of what I described about the extent of the copy.

[00:10:19] Speaker 02:
And I'm trying not to say that again, because I feel like we've gotten past it.

[00:10:23] Speaker 02:
That is what we said.

[00:10:24] Speaker 02:
We said, we don't think that it

[00:10:27] Speaker 02:
it can be fairly reviewed because it isn't clear

[00:10:31] Speaker 02:
the reasons why the ALJ came to this determination.

[00:10:35] Speaker 03:
So we have no merits issues in front of us in this appeal.

[00:10:38] Speaker 03:
You say it's because it's impossible to do, but you concede we have no merits issues.

[00:10:43] Speaker 04:
Well, didn't he adopt a finding a fact or a conclusion of law that you could have challenged on the merits and said, this is a wrong interpretation of the law, or this is a wrong claim construction, or his finding that there is no infringement here is incorrect as a factual matter?

[00:11:00] Speaker 04:
There are all those findings in there that you could have challenged on the merits.

[00:11:04] Speaker 02:
To your point, we would have needed to find one or more some manageable amount that would actually turn this around and send it back.

[00:11:12] Speaker 04:
It would have been true if he'd written the opinion from scratch, word for word, and ruled against you on every single issue, right?

[00:11:20] Speaker 04:
It makes no difference whether he copied or not.

[00:11:23] Speaker 04:
You lost on every single issue.

[00:11:25] Speaker 04:
And you have to win on a bunch of them to prevail.

[00:11:29] Speaker 04:
But you could have argued, at least to the commission, because you get more pages there, I think, that he got all of them wrong.

[00:11:36] Speaker 04:
And he could explain why he got them wrong.

[00:11:38] Speaker 04:
He didn't do it.

[00:11:39] Speaker 04:
Actually, before the commission, we did try to do that.

[00:11:41] Speaker 04:
Well, you didn't do it to us.

[00:11:43] Speaker 02:
And that has to do with, yes, Your Honor, that is true.

[00:11:46] Speaker 02:
We did not do that here.

[00:11:48] Speaker 02:
What we tried to say is that we do think in.

[00:11:51] Speaker 04:
I mean, if there were too many findings against you for you to raise here to win, then maybe you shouldn't have taken the appeal at all.

[00:12:01] Speaker 02:
Fair enough, Your Honor.

[00:12:03] Speaker 02:
I hear what you're saying.

[00:12:04] Speaker 02:
We felt, and we felt like the cases that we cited supported this argument that it wasn't a recent decision.

[00:12:10] Speaker 02:
But I accept.

[00:12:14] Speaker 02:
your comments.

[00:12:16] Speaker 02:
I suppose at this point I'm into the rebuttal.

[00:12:18] Speaker 02:
I suppose I'll save it.

[00:12:19] Speaker 02:
Thank you.

[00:12:27] Speaker 05:
Mr. Lieberman, you first up.

[00:12:40] Speaker 01:
Good morning.

[00:12:41] Speaker 01:
May it please the court.

[00:12:43] Speaker 01:
I will start with responding to the issues that were discussed in the council's argument.

[00:12:51] Speaker 01:
So on the first issue, the problem for Q3TPs, it's not the length of the ID.

[00:12:59] Speaker 01:
It's just the fact that they lost on many issues.

[00:13:03] Speaker 01:
And won on some, right?

[00:13:07] Speaker 01:
No.

[00:13:07] Speaker 01:
Actually, they didn't win on anything.

[00:13:09] Speaker 05:
The commission didn't.

[00:13:11] Speaker 05:
I don't think it prevailed on validity.

[00:13:13] Speaker 01:
Well, the validity, they prevailed on the validity, but as for the infringement and technical prong on all of the issues.

[00:13:21] Speaker 05:
Yeah, the economic prong and the validity they prevailed.

[00:13:24] Speaker 05:
It could have been worse for them.

[00:13:25] Speaker 05:
They could have had more issues to appeal.

[00:13:27] Speaker 01:
The commission decided not to take the position on the economic prong.

[00:13:36] Speaker 01:
To summarize what happened here is that there were two problems with the Q3's position.

[00:13:43] Speaker 01:
First, they waived their argument that the commission determination is arbitrary and capricious.

[00:13:51] Speaker 01:
They waived this argument.

[00:13:52] Speaker 01:
They never raised it properly before the commission.

[00:13:57] Speaker 05:
And his answer to that in the briefing at least was,

[00:14:01] Speaker 05:
Well, he had copying all over the place.

[00:14:05] Speaker 05:
Clearly, he put the commission on notice that he had a problem and a concern with the fact that the ALJ copied.

[00:14:12] Speaker 01:
Well, there are certain requirements as to proper raising the issues for the commission's review.

[00:14:22] Speaker 01:
There is a precedent of this court.

[00:14:24] Speaker 01:
the decisions of Finnegan and Smith-Kline, and also the Commission rule 210.

[00:14:29] Speaker 05:
So what more would he have had to do to appropriately preserve the right?

[00:14:33] Speaker 05:
Would he have had to say, every time he said, they copied it?

[00:14:37] Speaker 05:
I think he also mentioned, and they didn't deal with a lot of the issues that I raised, would he have had to say, and that was arbitrary and capricious, and failed to satisfy recent decision-makers?

[00:14:47] Speaker 01:
No, they had to develop their argument and to present the concise argument

[00:14:54] Speaker 01:
as required under this president and under the commission rule.

[00:14:57] Speaker 04:
But I think his concise argument is that because it was wholesale copying, it was arbitrary and capricious.

[00:15:03] Speaker 04:
That may be a loser argument, but there's not much more to it.

[00:15:06] Speaker 01:
Well, but they didn't even put this argument in the petition.

[00:15:10] Speaker 01:
They never said that it's arbitrary.

[00:15:11] Speaker 05:
Oh, no, that is why my question to you is if they had said that in the petition, if they had said not just they copied, they copied, they copied,

[00:15:18] Speaker 05:
But they copied, and therefore it was arbitrary and capricious, and we are missing any reason decision-making.

[00:15:24] Speaker 05:
Would that have been sufficient to preserve the issue for appeal?

[00:15:27] Speaker 01:
Well, as a hypothetical, we consider that, but I don't think that will suffice, because there should be some

[00:15:35] Speaker 01:
citing, at least of the record, some citation of the authorities.

[00:15:39] Speaker 01:
Now, in this petition that they filed... Well, that's a merit.

[00:15:42] Speaker 05:
I mean, so you're saying it wouldn't have been sufficient, it seems to me, because they would have lost it because they didn't give you enough, not that it was waived.

[00:15:49] Speaker 01:
No, but even if it's one issue, they have to properly raise this issue before the commission.

[00:15:55] Speaker 01:
And there are certain requirements that they have to satisfy.

[00:15:58] Speaker 04:
out of more than 100 pages.

[00:16:00] Speaker 04:
I'm not sure why you're finding this hypothetical.

[00:16:03] Speaker 04:
If they say there's wholesale copying that renders the ALJ's decision arbitrary and capricious because it doesn't show reason decision making and it violates the APA, that raises the issue, doesn't it?

[00:16:17] Speaker 01:
Well, that raises the issue.

[00:16:21] Speaker 01:
They believe that that raises the issue.

[00:16:23] Speaker 01:
But I thought the Commission... Under this unprecedented... And again, it's an expression of disagreement.

[00:16:33] Speaker 01:
It's complaint.

[00:16:33] Speaker 01:
I agree with that.

[00:16:34] Speaker 01:
But it's not a properly presented argument according to the President and according to the Commission rules.

[00:16:43] Speaker 01:
But again, in this case, it's not dispositive because they...

[00:16:50] Speaker 01:
failed to argue that it's artificial before the commission.

[00:16:54] Speaker 01:
And they also disregard and don't comply with controlling precedent that governs this issue of alleged copying.

[00:17:04] Speaker 01:
And under this precedent, and we cited it in our brief, that various decisions, including Supreme Court decision in Anderson v. Bessemer City, even where the judge

[00:17:19] Speaker 01:
the parties proposed findings, those findings become the findings of the court, and they can be challenged on appeal under the appropriate

[00:17:31] Speaker 01:
legal standard, which is, in this case, would be substantial standard.

[00:17:36] Speaker 05:
But if I understand your argument, and this is the argument that I think the interveners presented quite clearly, there's a waiver argument here.

[00:17:46] Speaker 05:
It may or may not carry the day.

[00:17:48] Speaker 05:
It's a strong one that they didn't include the challenge under the APA to the deficiency.

[00:17:55] Speaker 05:
They just said there was copying, full stop.

[00:17:57] Speaker 05:
Right.

[00:17:58] Speaker 05:
But even if.

[00:18:00] Speaker 05:
They had, even if the argument made on appeal had been preserved below, is clearly insufficient for the reasons that your brief and the intervener's brief outline, right?

[00:18:13] Speaker 01:
That's exactly correct.

[00:18:15] Speaker 01:
They never argued before this court that their emissions determination is not supported by substantial evidence.

[00:18:25] Speaker 01:
They never challenged the merits of it.

[00:18:28] Speaker 01:
determination, that's exactly what they did before the commission.

[00:18:33] Speaker 01:
So before the commission, they waived the argument that the determination is arbitrarily capricious.

[00:18:38] Speaker 01:
But by not arguing in their opening brief that the determination is not supported by substantial evidence, they waived that argument too.

[00:18:47] Speaker 05:
What about the secondary argument, which I think they did preserve arguably below, which is?

[00:18:53] Speaker 05:
They said there was copying.

[00:18:54] Speaker 05:
They didn't recite the APA.

[00:18:57] Speaker 05:
But then they also complained that their arguments were never considered by the ALJ.

[00:19:03] Speaker 05:
What about that argument?

[00:19:04] Speaker 05:
And that argument, I think, is made to us as well.

[00:19:07] Speaker 05:
That's sort of part two of their argument.

[00:19:10] Speaker 05:
What do you have to say about that?

[00:19:11] Speaker 01:
So hoping per se, under the controlling president, it's not

[00:19:17] Speaker 01:
There is nothing wrong with copying.

[00:19:21] Speaker 01:
It's not a practice that is encouraged.

[00:19:27] Speaker 01:
But copying in itself, it doesn't create

[00:19:31] Speaker 01:
it does indicate an error.

[00:19:32] Speaker 05:
I stopped talking about copying, though.

[00:19:34] Speaker 05:
I'm talking about something maybe related.

[00:19:36] Speaker 05:
But it was copying, and I think we can treat it as a separate issue, that they never responded to any of the arguments, or most of the arguments.

[00:19:45] Speaker 01:
There was the second argument.

[00:19:47] Speaker 05:
OK.

[00:19:47] Speaker 05:
So that's what I want you to address.

[00:19:48] Speaker 01:
OK.

[00:19:48] Speaker 01:
The second argument was that ALJ didn't discuss expressly, didn't mention explicitly every

[00:19:58] Speaker 01:
single argument and every single piece of evidence that were presented by Q3.

[00:20:03] Speaker 01:
That was their complaint.

[00:20:06] Speaker 01:
Again, they waived it because they never argued that the Commission's determination is arbitrary and capricious for that reason before the Commission, so it's also waived.

[00:20:16] Speaker 01:
But, substantively, it's also governed by certain precedent which says that the Commission's determination is presumed

[00:20:26] Speaker 01:
to have considered all the arguments and all the evidence, even if the judge didn't expressly mention that.

[00:20:35] Speaker 01:
And Q3 just disregards that.

[00:20:38] Speaker 01:
They argue as if this precedent doesn't exist.

[00:20:43] Speaker 01:
I'm sorry.

[00:20:43] Speaker 05:
I see.

[00:20:43] Speaker 05:
No, it's time.

[00:20:44] Speaker 05:
We've divided.

[00:20:45] Speaker 05:
You've split the time with the intervener.

[00:20:47] Speaker 05:
So let's hear from the intervener.

[00:20:49] Speaker 01:
OK.

[00:20:50] Speaker 01:
Thank you.

[00:21:08] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:21:12] Speaker 00:
There are at least four problems with Q3's arguments.

[00:21:15] Speaker 00:
First, Q3 did not raise its complaint of arbitrary and capricious decision-making by copying before the Commission.

[00:21:22] Speaker 00:
So the argument's been forfeited.

[00:21:24] Speaker 00:
I've heard questions about what would have been sufficient.

[00:21:28] Speaker 00:
I don't think it would have been much.

[00:21:29] Speaker 00:
I think a paragraph would have been enough to raise this issue before the Commission.

[00:21:34] Speaker 00:
Q3 wouldn't have necessarily needed to raise it for every single limitation.

[00:21:38] Speaker 00:
But a simple paragraph explaining, citing the cases that it's provided to this court would have been sufficient to raise this issue.

[00:21:45] Speaker 05:
But just preserve it.

[00:21:46] Speaker 00:
To preserve it.

[00:21:47] Speaker 05:
But not to win it in your view.

[00:21:48] Speaker 00:
Exactly.

[00:21:48] Speaker 00:
Exactly.

[00:21:49] Speaker 00:
Just to preserve it before the commission.

[00:21:51] Speaker 00:
Because what would have happened then?

[00:21:52] Speaker 00:
We would have had a response where we could have responded to it.

[00:21:55] Speaker 00:
We could have cited the cases that we've cited to your honors.

[00:21:57] Speaker 00:
And then the commission could have commented on it.

[00:21:59] Speaker 00:
We don't have the benefit of that because it wasn't raised.

[00:22:02] Speaker 03:
Would they have to at least cite the APA or the arbitrary and capricious standard in that paragraph?

[00:22:07] Speaker 00:
I would expect so because of this court's precedent that says a very perfunctory statement isn't enough to preserve an issue.

[00:22:13] Speaker 00:
So I think a citation or two would have been enough.

[00:22:16] Speaker 00:
This court has commented frequently about what is and isn't enough to raise it.

[00:22:20] Speaker 00:
And here, raising this issue could have been done.

[00:22:23] Speaker 00:
There was no page limit below or anything preventing them from providing a paragraph or two, a cite to the APA, the arbitrary and capricious standard.

[00:22:30] Speaker 03:
And none of that happened here, right?

[00:22:31] Speaker 00:
Correct, Your Honor.

[00:22:33] Speaker 00:
Second, Q3 complains of a failure below to address contrary facts and argument, but Q3 neglects to explain how that is important or how that means the decision is unreasonable and unsupported by the record as a whole.

[00:22:47] Speaker 00:
That creates a separate forfeiture argument because it hasn't raised merits arguments that your honors were asking about before.

[00:22:54] Speaker 00:
And third, even if the court considers Q3's issues presented, there's plenty of evidence of a careful and thoughtful agency consideration of the record.

[00:23:04] Speaker 00:
including but not limited to the commission's decision to adopt the initial determination on only two of the three dispositive issues, the commission's correction of detailed citations to the record, showing that they engaged with the evidence and considered the arguments.

[00:23:19] Speaker 05:
So can I interrupt you just a minute?

[00:23:21] Speaker 05:
I'm trying to figure out, not this case, but hypothetically, what would have been sufficient.

[00:23:26] Speaker 05:
So let's stick with not the copying, but the fact that if one party raises six fulsome arguments,

[00:23:34] Speaker 05:
And we decide or whoever below decides and completely ignores all of those arguments, never even mentions it as if they never read the paper.

[00:23:44] Speaker 05:
Is that a problem?

[00:23:46] Speaker 05:
And if it is, what does the other side have to show?

[00:23:50] Speaker 05:
Does it have to show that these, is it a merits kind of dispute?

[00:23:54] Speaker 05:
Like they were wrong.

[00:23:55] Speaker 05:
It's not procedural because they didn't consider our argument.

[00:23:59] Speaker 05:
They were wrong because our arguments were right.

[00:24:01] Speaker 00:
I think the answer would be ideally both.

[00:24:04] Speaker 00:
They would show that they didn't address any of these six arguments that we've raised.

[00:24:08] Speaker 00:
And in addition, on the merits, they should be considered or at least remanded for a factual finding in the first instance.

[00:24:16] Speaker 05:
But they'd have to make some showing that there's some gravitas or heft or merit to their arguments.

[00:24:23] Speaker 05:
A lot of times, we end our opinions by saying,

[00:24:28] Speaker 05:
considered all the other arguments made by the appellant, and we reject them.

[00:24:33] Speaker 05:
We don't go through every single argument made, and we don't feel we're compelled to do that.

[00:24:38] Speaker 00:
I agree with Your Honor on that point, yes.

[00:24:40] Speaker 00:
And as we've seen in, for example, the DC Circuit has said that the agency can make some missteps, but the burden is still on petitioners to demonstrate that the agency's ultimate conclusions are unreasonable.

[00:24:52] Speaker 00:
as long as there's a clear basis to understand and review the opinion.

[00:24:56] Speaker 00:
And here, there's a 321-page opinion, most of which was adopted by the commission.

[00:25:01] Speaker 00:
It didn't adopt the economic prong aspect of it, but the rest was adopted.

[00:25:05] Speaker 00:
And we have enormous citation to record on those issues.

[00:25:13] Speaker 00:
I want to respond as well to the point that,

[00:25:17] Speaker 00:
the appellants have made about, well, we were limited in word count to this court.

[00:25:20] Speaker 00:
And just point out that in the procedures, the Federal Circuit rules, you can file a motion asking for more word count, which is a procedure that they elected not to do instead of raising this issue that we agree with Judge Hughes is insubstantial.

[00:25:33] Speaker 00:
So there were other avenues, if that was truly the problem, where I think this issue could have been raised to the court in a more fair way so that we could all stand here today and address the merits that they elected not to.

[00:25:44] Speaker 03:
seem like there is at least a few instances where the copying included copying certain type of graphical errors that the parties i'm sure it inadvertently had in their in their briefs is that any kind of red flag it isn't because there's also several instances of where the a l j fixed things fixed changed words and more importantly the commission made some corrections as well to citations on the record should not uh... assume that maybe the a l j was careful

[00:26:13] Speaker 03:
on some days and not careful on other days.

[00:26:16] Speaker 03:
Presumably, it took more than one day to put together a 300-page opinion.

[00:26:20] Speaker 00:
I think we don't necessarily need to get that granular into the ALJ's head here.

[00:26:25] Speaker 00:
What we're just concerned with is whether or not there was a reasoned decision, whether or not he considered the record evidence.

[00:26:31] Speaker 00:
And there's plenty of evidence here that he did.

[00:26:34] Speaker 00:
And I want to also point you to appendix page 317.

[00:26:38] Speaker 00:
which is where the ALJ cited to Q3's post-hearing briefs, including the reply that they claim its arguments were ignored for allegations of infringement of the 853 patent.

[00:26:49] Speaker 00:
So yes, maybe there were some typos that were copied over.

[00:26:52] Speaker 00:
I think Judge Hughes hit the nail on the head that this is a tremendous record and a tremendous burden on the agency and a tremendous time limit to these cases move very quickly below, which is to the benefit of all parties.

[00:27:04] Speaker 00:
But because of that, sometimes typos do happen.

[00:27:08] Speaker 00:
And mistakes do happen in citations.

[00:27:11] Speaker 00:
We saw that from the ALJ.

[00:27:12] Speaker 00:
But we saw the commission correcting those citations, showing that they engaged with the evidence.

[00:27:16] Speaker 00:
There were two levels of review here.

[00:27:18] Speaker 00:
It was the ALJ who looked at it, and then the commission that also looked at the issues on the merits, because they didn't even challenge the copying as its own separate issue.

[00:27:27] Speaker 05:
And there were separate concurrences by a couple of commissions.

[00:27:30] Speaker 00:
Absolutely.

[00:27:30] Speaker 00:
And that's significant, too, is that there were concurrences.

[00:27:33] Speaker 00:
And they weren't just broad, general concurrences.

[00:27:35] Speaker 00:
There was a concurrence on a claim construction.

[00:27:37] Speaker 00:
And there was a concurrence as well on an issue of whether there could be infringement under other hypothetical circumstances, showing, again, the extreme level of detail and attention that the commission paid to this case.

[00:27:52] Speaker 00:
There's also just extensive record evidence showing that the ALJ participated.

[00:27:56] Speaker 00:
There were 60 motions filed in this case, including for summary determination that the ALJ had to decide.

[00:28:02] Speaker 00:
By the time he got to writing his opinion,

[00:28:05] Speaker 00:
He had already written and decided 60 motions.

[00:28:09] Speaker 00:
He had already had before him thousands of exhibits, thousands of pages of testimony.

[00:28:14] Speaker 00:
He heard three days of live testimony.

[00:28:17] Speaker 00:
There was extensive consideration provided to this case.

[00:28:20] Speaker 00:
This case is just very far from any of the other cases where we've seen concerns even about decision making.

[00:28:27] Speaker 05:
Thank you.

[00:28:28] Speaker 00:
Thank you, Your Honor.

[00:28:40] Speaker 02:
Your honor, I'll be briefed.

[00:28:45] Speaker 02:
I just want to address just a couple of quick points to answer any other questions that you have with respect to the

[00:28:55] Speaker 02:
forfeiture, we do think that our raising of this issue was sufficient.

[00:29:01] Speaker 02:
And it's different than an example where for cases like Google Tech, which is a case that was cited, where a claim construction was just not brought up, and it was brought for the first time here.

[00:29:11] Speaker 02:
We think we clearly explained under that this was an issue, and we think that that's sufficient.

[00:29:21] Speaker 02:
With respect to one thing, not to belabor or test patience here, but just one other example of why we do see this as an issue, counsel raised the reply briefs.

[00:29:34] Speaker 02:
So that was an example where a reply brief was mentioned.

[00:29:36] Speaker 02:
But in general, the vast majority of the time where respondents, now intervenors, reply briefs were cited,

[00:29:44] Speaker 02:
And not just cited, but quoted in full, by definition could not have addressed our reply, because those were simultaneously exchanged.

[00:29:54] Speaker 02:
That was part of the problem.

[00:29:56] Speaker 02:
So this is why we think it possible to determine that the ALGL did adequately hear both issues and make a fair determination.

[00:30:08] Speaker 02:
And we've cited other examples such as that.

[00:30:11] Speaker 02:
I would be happy to answer any other questions that your honors have.

[00:30:15] Speaker 05:
Thank you.

[00:30:15] Speaker 02:
Thank you, Your Honor.