[00:00:00] Speaker 01:
First case for argument this morning is 23-2262 IGT versus Zynga.

[00:00:07] Speaker 01:
Ms.

[00:00:08] Speaker 01:
Kurtz?

[00:00:09] Speaker 01:
Did I mispronounce your name?

[00:00:12] Speaker 01:
Please proceed.

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

[00:00:17] Speaker 02:
The board erred in declining interference estoppel to this IPR.

[00:00:22] Speaker 02:
The board's decision that interference estoppel no longer applies to IPRs was contrary to the plain language of section 41.127, contrary to its prior rulings in Mexicam in 2021 and ADAMA in 2016, and was a remarkable and unexplained reversal of office policy.

[00:00:42] Speaker 00:
That's only one of three grounds for declining estoppel here.

[00:00:46] Speaker 00:
What about the other two grounds?

[00:00:48] Speaker 00:
Yes, your honor well The director had two grounds right of which you just described one, but the other ground was that when a threshold issue Sometimes I guess here called standing never mind the connotations of that was shut down the proceeding at that point the 103 issues could not be decided

[00:01:16] Speaker 00:
And under the language of the regulation, it is at least reasonable to read the regulation to say that it covers only what could have been presented and decided.

[00:01:29] Speaker 00:
And then the third graph is the waiver.

[00:01:34] Speaker 00:
The waiver which the director didn't reach.

[00:01:37] Speaker 02:
And she didn't reach that one.

[00:01:38] Speaker 02:
That's right.

[00:01:39] Speaker 02:
So we think that the language is clear in the other direction.

[00:01:46] Speaker 02:
This argument on the threshold issue fails because the clear text of a staple makes clear that once interference is declared and a judgment is entered, the effect within the office

[00:01:59] Speaker 02:
is that the estoppel was created based on Zynga's conduct in terms of what Zynga could have, but did not move on.

[00:02:07] Speaker 00:
But the language says what could have been raised and decided.

[00:02:15] Speaker 00:
And they could have raised the issue, but they couldn't have gotten it decided because there was this threshold

[00:02:22] Speaker 00:
Let's just call it a standing bar.

[00:02:24] Speaker 00:
This is no written description for them to have put all of the claim language into count, to create a count.

[00:02:30] Speaker 00:
So they could not actually have gotten these decided.

[00:02:33] Speaker 00:
Why isn't that the fairer reading of the regulation, particularly against the background of a similar kind of limitation on claim splitting out there in the general common law world of race judicata?

[00:02:46] Speaker 02:
With all due respect, Your Honor, the reason why that's not a fair reading is because it ignores and gives no effect to the second sentence of 41.127, which says, a losing party who could have properly moved for relief on an issue but did not so move may not take action in the office after the judgment that is inconsistent

[00:03:08] Speaker 02:
with that party's failure to move.

[00:03:10] Speaker 00:
So I didn't understand.

[00:03:12] Speaker 00:
I'm glad you referred to that.

[00:03:13] Speaker 00:
And I think that that's an important thing for you to be relying on.

[00:03:16] Speaker 00:
I don't understand what that language take action that is inconsistent with the party's failure to move.

[00:03:26] Speaker 00:
I literally do not understand what that means.

[00:03:28] Speaker 02:
And so as you recognize, interfering to stopple has roots in res judicata principles.

[00:03:35] Speaker 02:
It was applied for close to 100 years, and it was codified in 1984 by rule.

[00:03:42] Speaker 02:
And so that's what we're relying on is the rule.

[00:03:44] Speaker 02:
But the theory of interfering to stopple is that if you're going to put in jeopardy someone else's patent, you need to show all your cards.

[00:03:51] Speaker 02:
And that is focusing on that tenet, which is that if you're going to challenge the validity of my patent in an interference, you need to show your cards.

[00:04:00] Speaker 02:
You can't later go into the office on a new ground and raise yet another attack on patentability.

[00:04:07] Speaker 02:
And Section 135, the statute on interferences, was amended in 1984 at the same time.

[00:04:14] Speaker 02:
which specifically gave the office discretion to address patentability.

[00:04:19] Speaker 02:
While they don't have to reach patentability, cases interpreting that have said they have the authority to reach patentability.

[00:04:28] Speaker 02:
Therefore, they could have reached patentability, notwithstanding the written description issue, but they chose not to in this case, thinking that actually, in the opinion, it wouldn't be fair to ICT, because here they are challenging our patent.

[00:04:44] Speaker 02:
And it's interesting, the Adama case parallels significantly to that of IGT, because there, there was a written description issue that had been decided adversely.

[00:04:58] Speaker 02:
And so in that case as well, it was decided on written description grounds, and a stop will apply.

[00:05:06] Speaker 02:
Similarly, in Kenmore's.

[00:05:09] Speaker 02:
there were grounds that were not raised.

[00:05:12] Speaker 02:
And when I say were not raised, they didn't seek authorization before the board to bring that motion, to challenge that ground of invalidity.

[00:05:19] Speaker 02:
And they were barred by interference estoppel.

[00:05:23] Speaker 02:
So we think that the language has been clearly applied for decades.

[00:05:28] Speaker 02:
And most recently, with respect just to IPRs, to opinions, it was absolutely arbitrary and capricious for the board to have a reversal policy

[00:05:38] Speaker 02:
a suespante on this issue.

[00:05:40] Speaker 02:
Is it even addressed or try to distinguish Chemors or Adama in this decision?

[00:05:46] Speaker 01:
Those were non-precedential board decisions.

[00:05:49] Speaker 02:
You're correct, Your Honor.

[00:05:50] Speaker 02:
But under the APA, even an informal office policy requires the board, if it wants to deviate from that policy, to provide a reasoned explanation for the deviation.

[00:06:00] Speaker 02:
And they didn't do that.

[00:06:03] Speaker 02:
Again, sui sponte wasn't argued by Zynga.

[00:06:08] Speaker 02:
No one had argued this.

[00:06:09] Speaker 02:
It was the second sui sponte argument as to why the board didn't want to apply interference estoppel to this IPR, which seems by definition arbitrary and capricious when there was a pattern of applying interference estoppel to IPRs for years.

[00:06:26] Speaker 02:
And so if you look at those cases, you look at the intent of interference estoppel.

[00:06:33] Speaker 02:
That's why.

[00:06:34] Speaker 00:
And this particular point is just the first of the director's grounds, not the second.

[00:06:41] Speaker 00:
The threshold issue is the threshold issue, whether Chapter 42.

[00:06:46] Speaker 02:
That's the first round, is the incorporation by reference.

[00:06:50] Speaker 00:
But what about the scope of 41.127 itself?

[00:07:01] Speaker 00:
Is that inconsistent?

[00:07:02] Speaker 00:
I don't think you've indicated that there were precedential decisions at director level or at director level that said,

[00:07:14] Speaker 00:
when there is a ground on which the interference is, I don't know what the right term is, dissolved, terminated, that is treated under the regulation, the definition of threshold issue, which I think says if you decide this, you can't decide other things, that that would be a reason not to find

[00:07:41] Speaker 00:
a 102-103 ground that you could have presented in the interference, but you couldn't have gotten a rule on as covered by the 41.127.

[00:07:52] Speaker 02:
I think I follow what you're asking, Your Honor.

[00:07:57] Speaker 00:
Sorry, it was a little convoluted.

[00:07:59] Speaker 02:
Yeah, and again, this area is complicated.

[00:08:03] Speaker 02:
But the office policy.

[00:08:05] Speaker 00:
I'm not sure how complicated it is.

[00:08:07] Speaker 00:
I guess I was just trying to ask.

[00:08:08] Speaker 00:
Yeah.

[00:08:09] Speaker 00:
Is there some precedent that on state farmish grounds had to be dealt with and distinguished by the director in saying what she said in her ground number two?

[00:08:24] Speaker 02:
Well, again, under the APA, we believe that if there is even an informal office policy,

[00:08:29] Speaker 02:
or a formal office policy on an issue which was reflected in ADAMA.

[00:08:33] Speaker 02:
Chemors relied on ADAMA, quoted it extensively, very clearly argued that if you could have raised an issue you chose not to, you're barred going forward.

[00:08:45] Speaker 02:
And then also if you look at the MPEP, which Zenga cites 2308.03, that again supports IGT and is reflective of the office policy that only excludes from estoppel when there was no interference in fact granted.

[00:09:04] Speaker 02:
So if the board decides there isn't an interference, estoppel doesn't apply.

[00:09:10] Speaker 02:
And the MPEP is also very clear and reflective of the policy.

[00:09:15] Speaker 02:
that you don't evoke a stop if there's no interference in fact.

[00:09:18] Speaker 02:
And that was a ground that IGT had raised in the interference.

[00:09:22] Speaker 02:
And we lost.

[00:09:23] Speaker 02:
And so the interference was issued.

[00:09:25] Speaker 02:
It proceeded.

[00:09:26] Speaker 02:
And the board asked all the parties to bring whatever substantive motions that they desire to bring.

[00:09:33] Speaker 02:
One of the substantive motions that IGT brought was written description.

[00:09:38] Speaker 02:
The substantive motions that Zynga brought and fully briefed

[00:09:42] Speaker 02:
was on 102-103 in view of Carlson.

[00:09:45] Speaker 02:
There were expert reports, hundreds of pages of expert testimony, Folsom briefs on the matter, and they never raised the Goldberg-Olden combination at that time.

[00:09:56] Speaker 02:
So again, the office policy at the time seemed very clear to us.

[00:10:01] Speaker 02:
In fact, it's further evidenced by the fact that the board actually just chose to wait the application of interference to stop it initially.

[00:10:11] Speaker 02:
They thought it applied, and they waived it under 42.5, which we challenged.

[00:10:17] Speaker 02:
And then the director intervened and came up with yet another new argument.

[00:10:21] Speaker 04:
Much of your argument is going to what I tend to view as merit-oriented.

[00:10:28] Speaker 04:
But I'm bothered by an even more initial fundamental question than that.

[00:10:34] Speaker 04:
Do we even have jurisdiction to procure this case?

[00:10:37] Speaker 02:
Yes, Your Honor, you do.

[00:10:40] Speaker 02:
This court has the authority to review the applicability of interference stoppable to IPRs.

[00:10:45] Speaker 02:
If you look at SAS, it says that there's a strong presumption in favor of judicial review absent clear and convincing evidence that Congress meant to foreclose review.

[00:10:56] Speaker 02:
And certainly, this was not an area they meant to foreclose.

[00:11:01] Speaker 02:
It's also not

[00:11:02] Speaker 02:
In fact, I think it can't point to any evidence that Congress meant to foreclose.

[00:11:07] Speaker 04:
That applies when you're at the point where you're examining the decision that's tied to the board or director's decision to initiate, right?

[00:11:23] Speaker 02:
Your Honor, we don't believe that it's only tied to that.

[00:11:25] Speaker 02:
It impacts the entirety of the proceeding.

[00:11:28] Speaker 02:
And it's unlike the cases that have found or barred review, which would be section 3 bar review under section 315B for the time bar, which explicitly said it may not be instituted if there's a time bar, or 312, which was connected to the petition requirements that be pled with particularity.

[00:11:51] Speaker 02:
And it's much more like the cases that have approved the review, such as SAS with section 318A.

[00:11:59] Speaker 02:
or Section 315C, in another case, was permitted to proceed with review.

[00:12:04] Speaker 02:
And this isn't a statute.

[00:12:05] Speaker 02:
It's even a regulation.

[00:12:06] Speaker 02:
So it's even further removed, because it was, again, it grew out of rescue de cotta principles.

[00:12:12] Speaker 02:
It was enacted in 1984.

[00:12:14] Speaker 02:
And Congress explicitly said they intended that interference practice should proceed without impact from the AIA.

[00:12:26] Speaker 02:
So to us, it seems quite evident that it's not connected to the AIA.

[00:12:32] Speaker 02:
It had roots well before that.

[00:12:33] Speaker 02:
And it was codified 30 years before the AIA was even enacted.

[00:12:38] Speaker 00:
Just so that I'm clear.

[00:12:40] Speaker 00:
So in this case, there was an IPR filed.

[00:12:44] Speaker 00:
And your argument, grounded interference estoppel, was made in opposing the petition

[00:12:53] Speaker 00:
for IPR.

[00:12:55] Speaker 00:
And if the board had accepted your argument, it would have had to deny the petition.

[00:13:01] Speaker 00:
It wouldn't go on, grant the petition, decide other matters, which is what happened in SAS.

[00:13:09] Speaker 00:
It's what happened in the more recent, yeah.

[00:13:14] Speaker 02:
Well, that is true, Your Honor, but we also

[00:13:17] Speaker 02:
maintain the argument throughout the entirety of the proceeding.

[00:13:21] Speaker 00:
And again, the focal point.

[00:13:22] Speaker 00:
I mean, you know, Quozo and other cases, right, are cases in which you can maintain an argument about something that says you shouldn't grant relief because you never should have insisted.

[00:13:37] Speaker 02:
OK.

[00:13:38] Speaker 02:
But again, Quozo also says,

[00:13:41] Speaker 02:
that it wasn't for closing review, where the matter wasn't closely tied to the application and interpretation of statutes related to the Patent Office's decision to institute.

[00:13:52] Speaker 02:
And Cozo also said separately.

[00:13:54] Speaker 01:
But isn't that exactly this case?

[00:13:56] Speaker 01:
I mean, I don't know if that's the point Judge Toronto was making, but I think it may have been.

[00:14:00] Speaker 01:
What we're dealing with is a question related to the decision to institute inter-parties review.

[00:14:08] Speaker 01:
Isn't that precisely what we're doing here?

[00:14:11] Speaker 01:
No, Your Honor.

[00:14:13] Speaker 02:
What it regards is interpreting not an AIA statute, interpreting 41.127.

[00:14:17] Speaker 02:
OK, so there are two parts to this.

[00:14:20] Speaker 01:
I thought you were making kind of two arguments about this phrase from Cuoso.

[00:14:24] Speaker 01:
One was the statute versus regulation, and the second was the tied decision to institute in an inter partes review.

[00:14:33] Speaker 01:
So I thought this was one of those.

[00:14:34] Speaker 01:
I don't know that I really appreciate or understand your distinction between

[00:14:39] Speaker 01:
interpretation of statutes as opposed to interpretation of regulations.

[00:14:44] Speaker 01:
I mean, it's easy.

[00:14:46] Speaker 01:
It's more in the wheelhouse of non-reviewability, I would think, if we were dealing with regulations than statutes.

[00:14:54] Speaker 01:
So you're saying that they can review.

[00:14:57] Speaker 01:
I don't understand why you think regulations give us a different thing than statutes or isn't covered.

[00:15:05] Speaker 02:
But your point is that, again, it relates to interferences topple, not

[00:15:10] Speaker 02:
an IPR and close the offices?

[00:15:12] Speaker 01:
That's what I was going to start with.

[00:15:14] Speaker 01:
Related to the Patent Office's decision to institute an IPR.

[00:15:18] Speaker 01:
Isn't that exactly what we're talking about here?

[00:15:23] Speaker 01:
Your Honor, if the- Are we talking about the decision?

[00:15:25] Speaker 01:
I mean, that's what this- the use of a stopper was in connection with the decision to institute or not institute.

[00:15:32] Speaker 01:
So I'm having a hard time seeing how that, what we're doing here, isn't related to the decision to institute an IPR.

[00:15:40] Speaker 02:
Your Honor, if I may, just the rest of the court is that relating to the application and interpretation of statutes related to the Patent Office's decision to institute from COSO.

[00:15:50] Speaker 02:
So we're saying it's not related to those statutes.

[00:15:54] Speaker 02:
And independently, COSO also identified that there was independent review available if something violates the APA, which we say clearly this does.

[00:16:04] Speaker 02:
It changed the policy of the office without even identifying the prior policy

[00:16:09] Speaker 02:
set forth an edamame of hemorrhage for the MPEP.

[00:16:13] Speaker 02:
Your Honor, I know I'm over my time.

[00:16:19] Speaker 04:
Just more quickly, what do you make of the fact that 37 CFR, 31 MUTS 27A pertains to issues that have been raised and decided?

[00:16:33] Speaker 04:
It seems to me that the issue that we're looking at here

[00:16:36] Speaker 04:
was neither.

[00:16:38] Speaker 04:
It was neither raised or decided.

[00:16:40] Speaker 04:
Am I correct?

[00:16:42] Speaker 02:
So Your Honor, that's the first sentence of estoppel, and that defines the scope of the judgment, but then the second sentence within the estoppel provision... But we have to satisfy that in order to have estoppel.

[00:16:53] Speaker 04:
We have to show that the issue was raised and decided.

[00:16:57] Speaker 04:
And here, I don't believe that the issue was neither raised or decided.

[00:17:02] Speaker 02:
Well, Your Honor, with due respect, it says could have.

[00:17:05] Speaker 02:
properly raised.

[00:17:06] Speaker 02:
It doesn't say was raised.

[00:17:08] Speaker 02:
And so if it were to be interpreted as was raised, that would not be giving a legal effect to crime habits.

[00:17:15] Speaker 02:
raised.

[00:17:16] Speaker 02:
And then it would also be ignoring the second sentence of the estoppel language, which says that a losing party who could have properly moved, not who did move, not what was decided, but could have properly moved for relief on an issue that did not so move may not take action in the office after the judgment that's inconsistent with that party's failure to move.

[00:17:37] Speaker 02:
Again, it doesn't say anything about having to have it actually decided or having to actually

[00:17:42] Speaker 02:
file a motion.

[00:17:43] Speaker 02:
It's just that you could have filed a motion.

[00:17:45] Speaker 02:
And the goal of that is to prevent repetitive litigation of the same issues and to require the challenging party to put all their cards on the table.

[00:17:54] Speaker 04:
So you're saying that a stopple does not require that the issue have been decided?

[00:17:58] Speaker 02:
Not under 41.127, Your Honor.

[00:18:00] Speaker 02:
No, I don't.

[00:18:01] Speaker 00:
Because I guess your point is that even though it's called a stopple,

[00:18:06] Speaker 00:
it wouldn't really be an estoppel principle from a restatement of judgments.

[00:18:11] Speaker 00:
This is more a claim-splitting race judicata principle.

[00:18:15] Speaker 02:
Yes, Your Honor.

[00:18:16] Speaker 02:
And it's very specific.

[00:18:17] Speaker 02:
And it's different, again, than even IPR estoppel has different language that's used in the rule versus IPR estoppel.

[00:18:26] Speaker 01:
Well, your time's up.

[00:18:28] Speaker 01:
You've taken my bottle.

[00:18:29] Speaker 01:
If my colleagues have questions on the merits, if not, we can just take them.

[00:18:45] Speaker 01:
Good morning.

[00:18:46] Speaker 03:
Good morning.

[00:18:47] Speaker 03:
May it please the court, Elizabeth Moulton for Zynga.

[00:18:50] Speaker 03:
So we'll discuss interference and stop while I'll start with jurisdiction.

[00:18:54] Speaker 03:
The court lacks jurisdiction to hear IGT's challenge to the board's decision to institute.

[00:19:00] Speaker 03:
The statute could not be clearer that determinations by the director whether to institute are final and non-appealable.

[00:19:07] Speaker 03:
And the Supreme Court has explained that that means whether the agency should have instituted review at all is not appealable.

[00:19:15] Speaker 03:
We can tie this case directly to the Patent Office's regulations on interference.

[00:19:19] Speaker 03:
If you look at 42.101, which Zingarator.

[00:19:23] Speaker 01:
But you heard the discussion with your friend.

[00:19:25] Speaker 01:
It seems to me she makes at least two arguments about the language from COSO.

[00:19:30] Speaker 01:
And one, the language says the application closely ties to the application interpretation of statutes.

[00:19:36] Speaker 01:
Point one, these are regulations and not statutes.

[00:19:40] Speaker 01:
And I think point two was related to the decision to institute

[00:19:44] Speaker 01:
an IPR, and this is talking about estoppel interference.

[00:19:49] Speaker 03:
Sure.

[00:19:49] Speaker 03:
So on statutes versus regulations, section 314 makes no distinction on the basis of statutes or regulations.

[00:19:58] Speaker 03:
It just says the decision to institute is not reviewable.

[00:20:01] Speaker 03:
And this falls into the heartland of, is this an institution or not?

[00:20:05] Speaker 03:
And it is.

[00:20:06] Speaker 03:
How Thrive puts that together is.

[00:20:09] Speaker 04:
What do you say?

[00:20:10] Speaker 04:
Is it because the director of the board

[00:20:13] Speaker 04:
tied institution to the issue?

[00:20:18] Speaker 03:
So IGT itself did.

[00:20:19] Speaker 03:
At Appendix 216, in their preliminary response, they contended that the board should deny institution because Zynga is estopped.

[00:20:28] Speaker 03:
And then at 228, they said interference estoppel bars the entire proceeding.

[00:20:32] Speaker 03:
That was decided in the institution decision at Appendix 300 to 304.

[00:20:37] Speaker 03:
Their petition for rehearing at 355 asked for review of the institution decision.

[00:20:43] Speaker 03:
And then the director's decision at 382 affirms the decision on institution.

[00:20:48] Speaker 00:
Can I ask you this?

[00:20:50] Speaker 00:
What was the name of the prior art that was invoked in the Carlson?

[00:20:55] Speaker 00:
Yeah.

[00:20:56] Speaker 00:
That also didn't get decided.

[00:20:59] Speaker 00:
Suppose the IPR petition here had ground one Carlson, ground two Goldberg.

[00:21:07] Speaker 00:
Carlson clearly could be a basis for an IPR at that point.

[00:21:13] Speaker 00:
The argument about interference estoppel would not be an argument about non-institution, right?

[00:21:21] Speaker 00:
It would be an argument about You should not decide in this Instituted as as a whole because under SAS you've got it's all or nothing why should this be different just the absence of a Carlson ground in the IPR does that make sense?

[00:21:42] Speaker 03:
That does make sense.

[00:21:43] Speaker 03:
Both the question and the outcome, I think, make sense.

[00:21:47] Speaker 03:
So in this case, IGT asked the board not to institute, or asked the director not to institute the IPR.

[00:21:56] Speaker 03:
That choice to make the challenge at IPR, at institution, to make it against the entire petition, all grounds, that brings us within the 314D bar.

[00:22:08] Speaker 03:
Now, if we got to the point where there was an institution on all grounds under SAS, and now IGT wanted to raise a stopple against just specific grounds, that would

[00:22:21] Speaker 03:
become part of the final written decision as the court has hollowed in cases like the applicant admitted prior art case.

[00:22:29] Speaker 03:
But if we look at 42.101, so that's part of the AIA regulations, it says, who may petition for inter-parties review?

[00:22:38] Speaker 03:
Anyone can petition if you're not the owner, if you haven't filed the declaratory judgment action, if you're not barred by the one-year bar.

[00:22:44] Speaker 03:
And then part C says, if you're not barred by estoppel.

[00:22:48] Speaker 03:
So that ties this decision, the estoppel decision, directly to the decision to institute, which is what 314D says is not appealable.

[00:22:59] Speaker 03:
So it wasn't just based on what does interference estoppel mean in the context of pre-AIA regulations.

[00:23:05] Speaker 03:
It was also tied to an AIA regulation governing institution.

[00:23:10] Speaker 00:
I don't remember.

[00:23:12] Speaker 00:
Do you have 42.101 in your brief?

[00:23:15] Speaker 03:
They cited it in their reply, Your Honor.

[00:23:17] Speaker 00:
Cited it or quoted?

[00:23:19] Speaker 03:
They quoted it in their reply.

[00:23:20] Speaker 03:
Okay.

[00:23:22] Speaker 03:
And I'm specifically looking at 101C.

[00:23:27] Speaker 00:
And is this different from the director's first ground that says chapter 41 principles just don't?

[00:23:34] Speaker 03:
Yes, if it would be, yeah.

[00:24:00] Speaker 00:
Can you just state again, what's your affirmative use of this provision?

[00:24:05] Speaker 03:
So this provision, it starts with who may petition for inter-parties review.

[00:24:11] Speaker 00:
I see.

[00:24:11] Speaker 00:
Then it's addressed to the institution.

[00:24:13] Speaker 03:
Exactly.

[00:24:13] Speaker 00:
It's addressed to the institution.

[00:24:15] Speaker 00:
Got it.

[00:24:18] Speaker 03:
So that's our argument for no jurisdiction.

[00:24:20] Speaker 03:
Do you want to move to the director's second round?

[00:24:23] Speaker 00:
And even the board's third ground.

[00:24:28] Speaker 00:
Yeah, the waiver ground.

[00:24:29] Speaker 00:
The waiver ground.

[00:24:29] Speaker 00:
The board didn't have three grounds, right?

[00:24:32] Speaker 03:
Sure.

[00:24:32] Speaker 03:
So as some of the questions got to,

[00:24:35] Speaker 03:
41.127 talks about, the first sentence is, a judgment disposes of all issues that were or by motion could have properly been raised and decided.

[00:24:45] Speaker 03:
And this and decided language is very important.

[00:24:49] Speaker 03:
So this first sentence defines the scope of the judgment, which issues are within the scope of the judgment, those that were raised and decided.

[00:24:56] Speaker 03:
And then the second sentence goes on to say, essentially, you can't make new arguments on issues that fall within the judgment.

[00:25:03] Speaker 03:
In Zynga's interference, the only issue decided was standing or written description.

[00:25:08] Speaker 03:
And the board in the interference at Appendix 2297 said it would be inappropriate and unfair to allow the interference to continue because of the lack of standing.

[00:25:20] Speaker 03:
So there was never any decision on obviousness or anticipation.

[00:25:25] Speaker 03:
So that's it.

[00:25:26] Speaker 00:
So just just to be clear you're reading this to me slightly mysterious language can't make take action inconsistent with the party's failure to move as essentially the scope of that which I don't get from the words as simply referring back to whatever the first sentence would mean correct and if the first sentence

[00:25:49] Speaker 00:
doesn't cover claims that although they could have, or challenges that although they could have been raised, could not have been decided, then the second sentence doesn't reach further.

[00:26:01] Speaker 03:
Exactly.

[00:26:01] Speaker 03:
And that's a reasonable reading that the director reached in her decision at 384 to 385.

[00:26:08] Speaker 03:
So that would be why interpreting to stop what wouldn't apply to this case.

[00:26:12] Speaker 03:
And then, as you mentioned, there's, yeah, the third reason that the board reasonably waived any application of interference of SOPL and proceeded with the IGR.

[00:26:22] Speaker 03:
And I think IGT's only argument against that is they say that the waiver provision only applies to procedural requirements, but that's not part of the language of the waiver provision in 42.5B.

[00:26:41] Speaker 00:
to say, it looks to us like 314D bars review.

[00:26:52] Speaker 00:
Cozo talks about a possible exception for shenanigans.

[00:26:59] Speaker 00:
And so we can at least take a peek at the merits of the grounds that were invoked either by the director or the board for declining to apply the estoppel regulation.

[00:27:16] Speaker 03:
So I think you're sort of referring to like a steel code type argument that you can.

[00:27:21] Speaker 00:
Well, I just literally mean the shenanigans.

[00:27:26] Speaker 00:
principle exception on that question.

[00:27:29] Speaker 00:
That's a word from close.

[00:27:30] Speaker 00:
That's not my word.

[00:27:31] Speaker 03:
So no, not in this case, because this squarely falls within an institution decision.

[00:27:36] Speaker 03:
It's only been brought as a challenge to the institution decision, and we can directly tie it to regulations that govern institutions.

[00:27:43] Speaker 03:
So this doesn't fall in sort of the edge cases where there's some due process challenge.

[00:27:51] Speaker 03:
It's just a straight application of the

[00:27:54] Speaker 03:
patent offices regulations on who can petition for inter-parties review.

[00:27:59] Speaker 01:
If you had to, how would you define the scope of shenanigans?

[00:28:05] Speaker 01:
Because that could be, I mean, it's almost a bad faith kind of thing.

[00:28:12] Speaker 01:
I don't know.

[00:28:13] Speaker 01:
But it could be defined much broader to be almost anything that you think is questionable.

[00:28:22] Speaker 03:
Sure.

[00:28:25] Speaker 03:
categorical and definitive 314-D is, I think shenanigans in a due process violation may collapse.

[00:28:32] Speaker 03:
And you'd need to articulate a test that gives effect to 314-D in the sense that shenanigans is quite a narrow exception.

[00:28:45] Speaker 03:
So maybe, like your honor mentioned, bad faith.

[00:28:48] Speaker 04:
Maybe a shenanigan is something that you know when you see it.

[00:28:53] Speaker 04:
Sure.

[00:28:54] Speaker 01:
Yeah.

[00:28:55] Speaker 01:
There were no examples that it was a Justice Breyer encloser.

[00:28:58] Speaker 01:
No examples given of shenanigans, were there?

[00:29:01] Speaker 01:
No.

[00:29:01] Speaker 00:
I thought there was, like, we institute under 112, as opposed to private.

[00:29:10] Speaker 00:
Yeah.

[00:29:11] Speaker 03:
Anyway, my memory not.

[00:29:15] Speaker 03:
There are no further questions?

[00:29:19] Speaker 01:
No.

[00:29:19] Speaker 01:
Thank you.

[00:29:20] Speaker 02:
Thank you.

[00:29:21] Speaker 01:
Will we enjoy two minutes of rebuttal if you need it?

[00:29:29] Speaker 02:
Thank you, Your Honor.

[00:29:31] Speaker 02:
So a couple of points in response.

[00:29:33] Speaker 02:
First, we are appealing the final written decision as well.

[00:29:36] Speaker 02:
It is not limited to just an institution decision appeal.

[00:29:40] Speaker 02:
Appendix 76 of the final written decision also addresses the merits of interference at Stockholm.

[00:29:47] Speaker 02:
Two, on shenanigans, to Your Honor's question.

[00:29:51] Speaker 02:
Certainly, acting arbitrarily and capriciously with respect to one party, deciding that interference and stopple applies to IPRs, and then saying they do not apply to yet another party is by definition arbitrary and capricious.

[00:30:07] Speaker 02:
So certainly, it would be an APA violation to come up with a new policy that deviates from the office's prior policies without reasoned explanation, without any

[00:30:19] Speaker 02:
distinction as to how that would be.

[00:30:22] Speaker 02:
And the plain language, again, supports ITT in this matter, not Zynga.

[00:30:27] Speaker 02:
Again, it isn't tied to IPRs.

[00:30:31] Speaker 02:
It's tied to the interference practice, which long preceded IPRs.

[00:30:36] Speaker 02:
By definition of the office's analysis, it would make interference estoppel

[00:30:43] Speaker 02:
not apply to any IPRs.

[00:30:44] Speaker 02:
It would make IPR stop will not apply to interferences.

[00:30:48] Speaker 02:
And this is just a breathtaking expansion of initiation of long-standing interference of stop will practice.

[00:30:56] Speaker 02:
And it should be vacated by this court to follow the board's long-standing policy that interference of stop will does apply to grounds that were not raised by parties.