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Apples Reply 05142018 Apple PTAB Challenge of VirnetX Patents
Apples Reply 05142018 Apple PTAB Challenge of VirnetX Patents
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UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
VIRNETX INC.,
Appellant,
v.
THE MANGROVE PARTNERS MASTER FUND, LTD., APPLE INC.,
Appellees.
No. 2017-1368
Appeal from the United States Patent and Trademark Office, Patent Trial and
Appeal Board in No. IPR2015-01046.
VIRNETX INC.,
Appellant,
v.
THE MANGROVE PARTNERS MASTER FUND, LTD., APPLE INC.,
BLACK SWAMP IP, LLC
Appellees.
No. 2017-1383
Appeal from the United States Patent and Trademark Office, Patent Trial and
Appeal Board in No. IPR2015-01047.
CERTIFICATE OF INTEREST
Apple Inc.
Not applicable.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the party or amicus curiae represented by me are:
None.
4. The names of all law firms and the partners or associates that
appeared for the party or amicus now represented by me in the trial court or agency
or are expected to appear in this court (and who have not or will not enter an
appearance in this case) are:
VirnetX Inc. v. Apple Inc., Nos. 17-1591, -1592, -1593 (Fed. Cir.)
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CERTIFICATE OF INTEREST
Counsel for Appellee Black Swamp IP, LLC certifies the following:
Not applicable.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the party or amicus curiae represented by me are:
None.
4. The names of all law firms and the partners or associates that
appeared for the party or amicus now represented by me in the trial court or agency
or are expected to appear in this court (and who have not or will not enter an
appearance in this case) are:
VirnetX Inc. v. Apple Inc., Nos. 17-1591, -1592, -1593 (Fed. Cir.)
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CERTIFICATE OF INTEREST
Counsel for Appellee The Mangrove Partners Master Fund, Ltd. certifies the
following:
Not applicable.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the party or amicus curiae represented by me are:
None.
4. The names of all law firms and the partners or associates that
appeared for the party or amicus now represented by me in the trial court or agency
or are expected to appear in this court (and who have not or will not enter an
appearance in this case) are:
VirnetX Inc. v. Apple Inc., Nos. 17-1591, -1592, -1593 (Fed. Cir.)
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TABLE OF CONTENTS
Page
CERTIFICATES OF INTEREST ...............................................................................i
INTRODUCTION .....................................................................................................5
ARGUMENT ...........................................................................................................21
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CONCLUSION ........................................................................................................68
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES
CASES
Page(s)
Achates Reference Publishing, Inc. v. Apple Inc.,
803 F.3d 652 (Fed. Cir. 2015) ............................................................................49
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In re Comiskey,
554 F.3d 967 (Fed. Cir. 2009) ............................................................................47
In re Mouttet,
686 F.3d 1322 (Fed. Cir. 2012) ..........................................................................20
In re Nuvasive, Inc.,
842 F.3d 1376 (Fed. Cir. 2016) ..........................................................................37
In re VirnetX Inc.,
No. 2016-119, ECF No. 39 (Fed. Cir. Mar. 18, 2016) .......................................11
IPR Licensing, Inc. v. ZTE Corp.,
685 F. App’x 933 (Fed. Cir. 2017) (nonprecedential) ..................................57, 63
Knowles Electronics LLC v. Cirrus Logic, Inc.,
883 F.3d 1358 (Fed. Cir. 2018) ..........................................................................67
Lowe v. Securities & Exchange Commission,
472 U.S. 181 (1985) ............................................................................................54
Marine Polymer Technologies, Inc. v. HemCon, Inc.,
672 F.3d 1350 (Fed. Cir. 2012) (en banc) ..........................................................42
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35 U.S.C.
§ 102....................................................................................................................48
§ 103....................................................................................................................48
§ 311........................................................................................................48, 52, 53
§ 311(a) .........................................................................................................48, 53
§ 311(b) ...............................................................................................................48
§ 311(c) .........................................................................................................48, 53
§ 312(a)(2) ..........................................................................................................59
§ 314(d) ...............................................................................................................59
§ 315.............................................................................................................passim
§ 315(b) ........................................................................................................passim
§ 315(c) ........................................................................................................passim
§ 315(e) ...............................................................................................................52
§ 316(a) ...............................................................................................................51
§ 316(a)(1) ..........................................................................................................52
§ 316(a)(4) ....................................................................................................49, 51
§ 316(a)(5) ..........................................................................................................64
§ 316(a)(10) ........................................................................................................51
§ 316(a)(12) ........................................................................................................55
§ 316(a)(13) ........................................................................................................51
§ 317(a) ...............................................................................................................52
§ 318(a) ...............................................................................................................52
37 C.F.R.
§ 42.51.................................................................................................................64
§ 42.122(b) ................................................................................................9, 10, 49
§ 42.123(a) ..........................................................................................................59
77 Fed. Reg. 48,690 (Aug. 14, 2012).......................................................................49
Office Practice Trial Guide, 77 Fed. Reg. 48,756 (Aug. 14, 2012)...................61, 62
ADMINISTRATIVE DECISIONS
Apple Inc. v. VirnetX, Inc.,
IPR2013-00354, Paper 20 (P.T.A.B. Dec. 13, 2013) ........................................... 8
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LEGISLATIVE MATERIALS
OTHER AUTHORITIES
Scalia, Antonin & Bryan A. Garner, Reading Law (2012)......................................54
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The patents at issue in this appeal, U.S. Patent Nos. 6,502,135 (“the ’135
patent”) and 7,490,151 (“the ’151 patent”), were also the subject of proceedings in
the United States District Court for the Eastern District of Texas. A trial as to
Apple in VirnetX Inc. v. Cisco Systems, Inc., No. 6:10-cv-00417 (“the 417
matter”), resulted in a jury verdict and judgment that was appealed to this Court
and remanded for further proceedings involving the ’135 and ’151 patents, as well
as two related patents, U.S. Patent Nos. 7,418,504 (“the ’504 patent”) and
7,921,211 (“the ’211 patent”). VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308
(Fed. Cir. 2014) (Prost, C.J., joined by Chen, J.) (“VirnetX I”).
ongoing royalty, No. 6:13-cv-00211. After appeal, this Court vacated the ongoing
royalty order. VirnetX Inc. v. Apple Inc., No. 14-1395, ECF No. 34 (Fed. Cir. Feb.
24, 2015) (Hughes, J., joined by O’Malley & Wallach, JJ.). The remanded
proceedings in the 417 matter were consolidated with another proceeding in which
VirnetX had asserted the same patents against Apple, VirnetX Inc. v. Apple Inc.,
No. 6:12-cv-00855 (“the 855 matter”). That matter had previously been
consolidated with yet another case, VirnetX Inc. v. Apple Inc., No. 6:11-cv-00563.
A consolidated trial in that matter took place in January 2016, after which the
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district court granted new, severed trials in both the 855 matter and the 417 matter.
VirnetX Inc. v. Apple Inc., No. 6:12-cv-855, 2016 WL 4063802 (E.D. Tex. July 29,
2016). A third trial in the 417 matter took place in September 2016, and the
district court entered final judgment on September 29, 2017. The appeal of the
remanded 417 matter is currently pending before this Court (No. 18-1197). Trial
in the 855 matter took place in April 2018, and the parties have not yet filed post-
trial motions. The 855 matter remains pending in the district court.
The patents at issue in this appeal are also the subject of inter partes
reexamination proceedings pending before the Patent Trial and Appeal Board (“the
Board”). See Reexamination Control Nos. 95/001,682 (the ’135 patent) and
VirnetX patents, in each case affirming the Board’s findings that all claims of the
challenged patent were unpatentable. See VirnetX Inc. v. Apple Inc., Nos. 17-1131,
17-1132, 17-1186, 17-1274, 17-1275, 17-1276, 17-1291, 715 F. App’x 1024 (Fed.
Cir. 2018) (Newman, Mayer, & Lourie, JJ.) (U.S. Patent Nos. 8,458,341;
8,516,131; 8,560,705; 8,850,009; and 8,868,705); VirnetX Inc. v. Apple Inc., Nos.
16-1211, 16-1213, 16-1279, 16-1281, 671 F. App’x 786 (Fed. Cir. 2016)
(O’Malley, J., joined by Mayer & Wallach, JJ.) (U.S. Patent Nos. 7,188,180 (“the
’180 patent”) and 7,987,274 (“the ’274 patent”)); VirnetX Inc. v. Apple, Inc., No.
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16-1480, 671 F. App’x 789 (Fed. Cir. 2016) (O’Malley, J, joined by Mayer &
Wallach, JJ.) (U.S. Patent No. 8,051,181 (“the ’181 patent”)); VirnetX Inc. v. Apple
Inc., Nos. 15-1934, 15-1935, 665 F. App’x 880 (Fed. Cir. 2016) (Wallach, J.,
joined by Mayer, J.; dissent by O’Malley, J.) (U.S. Patent No. 8,504,697).
consolidated appeals are pending before the Board: Reexamination Control No.
95/001,682 (the ’135 patent) and Reexamination Control Nos. 95/001,679 and
95/001,714 (the ’151 patent). Still other cases regarding related VirnetX patents
are pending before the Board: Reexamination Control No. 95/001,746 (U.S. Patent
No. 6,839,759) and IPR2017-00337 (U.S. Patent No. 9,038,163). The Board has
also issued final decisions involving a related VirnetX patent from which no
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appeals have been taken: IPR2015-01009 and IPR2015-01010 (U.S. Patent No.
8,843,643).
On April 11, 2018, this Court ordered that these proceedings be considered
companion cases with—and assigned to the same merits panel as—VirnetX Inc. v.
Apple, Inc., Nos. 2017-1591, -1592, -1593, and VirnetX Inc. v. Cisco Systems, Inc.,
No. 2018-1197.
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JURISDICTIONAL STATEMENT
INTRODUCTION
The Board declared every challenged claim of VirnetX’s ’135 and ’151
patents anticipated (and, for some claims, also obvious). Lacking any legitimate
critique of the Board’s substantive analysis, VirnetX tries to portray these run-of-
the-mill proceedings as more exciting than they are. VirnetX’s efforts fail.
mark, as those findings were amply supported, and VirnetX’s claim that the Board
deprived it of due process founders on any fair reading of the record. There was no
surprise or inconsistency in the Board’s analysis. The Board simply accepted and
opportunity to respond.
The Board’s decision to join Apple to the proceeding filed by The Mangrove
Partners Master Fund, Ltd. (“Mangrove”) rested on the statutory plain language
and was consistent with the view of every authority to consider the issue—
including five Members of this Court. Mangrove was not required to list
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actions on its behalf. And even VirnetX concedes that its request for additional
connection” between RPX and Mangrove (Br. 64), which does not satisfy the well-
proceeding.
VirnetX’s conspiracy theories make for entertaining reading, but the reality
STATEMENT OF ISSUES
that Kiuchi renders the challenged ’151 patent claims anticipated and/or obvious.
3. Whether the Board was entitled to (a) join Apple to Mangrove’s IPR
under 35 U.S.C. § 315(b)-(c); (b) find that Mangrove Partners was not a real-party-
in-interest; and (c) deny VirnetX’s request for additional discovery into whether
RPX is a real-party-in-interest.
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STATEMENT OF FACTS
In 2010, VirnetX sued Apple for infringement of the ’135 and ’151 patents.
VirnetX Inc. v. Cisco Sys., Inc., No. 6:10-cv-00417, Dkt. 1 (E.D. Tex. Aug. 11,
2010). In July 2011, before Congress enacted the America Invents Act (“AIA”)
creating inter partes review (“IPR”), Apple requested inter partes reexamination of
the PTO rejected every asserted claim as unpatentable, VirnetX successfully stalled
day—after more than forty such petitions and nearly seven years later—the
Apple also pursued review through the new IPR system, filing initial
petitions in June 2013. At that time, the Board had not decided whether
infringement complaints filed before the AIA’s enactment would trigger 35 U.S.C.
§ 315(b)’s time bar. The Board ultimately concluded that pre-AIA complaints did
bar later IPR petitions, but it did not deny that its novel interpretation was
1
VirnetX’s assertion that Apple’s “first” administrative challenge came
“almost three years” after VirnetX’s infringement complaint (Br. 14) is flat wrong.
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IPR petition. E.g., Apple Inc. v. VirnetX, Inc., IPR2013-00354, Paper 20 at 3-4
In 2015, Mangrove petitioned for IPR of the ’135 and ’151 patents.
determined that Mangrove had shown a reasonable likelihood that the challenged
institution, including that Mangrove had failed to name other alleged real-parties-
from modifying the petition to list Mangrove Partners. E.g., Appx2201 (“[T]he
record [does not] indicate that any such modification would result in rendering this
2
VirnetX suggests that Apple caused RPX to file IPR petitions on Apple’s
behalf. Br. 15-16. Contrary to VirnetX’s dramatic narrative, the Board terminated
the RPX proceedings for a mundane reason: Apple had an existing contractual
relationship with RPX. See RPX Corp. v. VirnetX Inc., IPR2014-00171, Paper 49
at 4 (P.T.A.B. June 5, 2014).
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The Board also rejected VirnetX’s request for discovery into whether RPX
“no more than a mere allegation of some kind of general association between”
Mangrove and RPX, which was “insufficient to show beyond mere speculation that
On October 26, 2015, Apple filed IPR petitions challenging the ’135 and
’151 patents, and requested that the Board join Apple to the Mangrove
within one month of institution of the Mangrove IPRs. See 37 C.F.R. § 42.122(b);
same exhibits as Mangrove, plus additional exhibits confirming that certain prior-
art references were publicly available before the claims’ earliest effective filing
to Apple or Mangrove, also filed an IPR petition against the ’151 patent, and
3
Although this Court previously affirmed a jury verdict finding the ’135 and
’151 patents not invalid, related infringement and damages issues are still being
litigated. See VirnetX I, 767 F.3d 1308; Fresenius USA, Inc. v. Baxter Int’l, Inc.,
721 F.3d 1330, 1341 (Fed. Cir. 2013) (district court validity ruling does not bar
PTO reexamination unless there is “nothing for the court to do but execute the
judgment” in the litigation).
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3868; Appx3965. The Board instituted IPR on that petition and joined Black
Swamp to the Mangrove IPR. Appx3971; Appx3970 (finding that adding Black
VirnetX). VirnetX does not appeal any aspect of Black Swamp’s joinder.
On January 25, 2016, the Board instituted trial on Apple’s petitions and
3862. The Board rejected VirnetX’s time-bar argument, explaining that 35 U.S.C.
§ 315(b) makes clear that “[t]he time limit … shall not apply [to] … a time-barred
year bar “‘shall not apply when the petition is accompanied by a request for
joinder.’” Appx1981; Appx2322; 37 C.F.R. § 42.122(b). The Board also held that
VirnetX had not established that joinder would “impact” the proceedings by, for
The Board took steps to ensure that neither VirnetX nor Mangrove would be
prejudiced by Apple’s joinder. For example, the Board ordered that “the grounds
on which [trial] was instituted are unchanged and no other grounds are included in
the joined proceeding[s].” Appx1984; Appx2325. The Board also held that Apple
would be bound by any existing discovery agreements and could not “seek any
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discovery beyond that sought by” Mangrove. Appx1983; Appx2324. Finally, the
Appx2324.4
mandamus. In re VirnetX Inc., No. 2016-119, Dkt. 39 at 2 (Fed. Cir. Mar. 18,
2016).
In its final written decisions, the Board reaffirmed its rejection of VirnetX’s
petitioned for rehearing on the real-party-in-interest issue, which the Board denied,
4
These limits refute VirnetX’s suggestion (Br. 19-20) that Apple improperly
took an outsized role in the proceedings. Apple did only what Mangrove could
have done on its own, and it was Mangrove’s choice to involve Apple’s attorneys.
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Mangrove Partners … , in fact, exerted control over the filing or preparation of the
The Board found claims 1, 2, 6-8, and 12-14 of the ’151 patent anticipated
by Kiuchi and obvious over Kiuchi in view of RFC 1034 and/or Rescorla.
Appx55-78. The Board also found claims 1, 3, 4, 7, 8, 10, and 12 of the ’135
patent anticipated by Kiuchi, and claim 8 obvious over Kiuchi and RFC 1034.
Appx18-40.
devices connected to the Internet. VirnetX Inc. v. Apple Inc., 665 F. App’x 880,
remember, they are often associated with human-readable domain names (e.g.,
sends a domain name service request to the domain name server (“DNS”) for the
DNS looks up the IP address corresponding to the requested domain name and
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over the Internet.” Appx134(1:15-17). One such reference was a 1996 paper
Internet.” Appx3982.
a “user agent” associated with a client-side proxy and an “origin server” associated
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with a server in the C-HTTP network, a user selects a hyperlink URL (e.g.,
the user agent. Id. The client-side proxy associated with the user agent then sends
a request for the URL to the C-HTTP name server. Id. Upon receiving the
request, the C-HTTP name server determines “whether the requested server-side
proxy is registered in the closed network” and, if so, returns the IP address for the
“When the C-HTTP name server confirms that the specified server-side
for connection to the server-side proxy.” Appx3983. The server-side proxy in turn
“asks the C-HTTP name server whether the client-side proxy is an appropriate
member of the closed network.” Appx3983-3984. If so, the C-HTTP name server
sends the IP address for the client-side proxy to the server-side proxy and “the
requests from the user agent in encrypted form” to the server-side proxy, which
forwards those requests to the origin server. Id. The origin server then sends an
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The ’151 and ’135 patents, which share a common specification, describe
“determines whether access to a secure site has been requested” by, for example,
“access to a secure site has been requested” and the requesting computer “has
sufficient security privileges to access the site,” a VPN is established between the
Mangrove’s petition, the Board determined that Kiuchi anticipates all challenged
’151 patent claims. Appx57. In particular, the Board found that “Kiuchi discloses
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secure server … and when the intercepted DNS request corresponds to a secure
server, automatically initiating an encrypted channel between the client and the
Appx7378-7381(¶¶28-31); Appx3982-3984).
that Petitioners’ identification of the “client-side proxy and C-HTTP name server”
that “Petitioner[s] previously argued that the client-side proxy and the C-HTTP
name server perform the claimed determining step in the Petition.” Appx85-86.
The Board also observed that VirnetX did not dispute that Kiuchi discloses a C-
HTTP name server that “determines whether the DNS request corresponds to a
Regarding the “client” limitations, the Board found that “Kiuchi discloses a
‘request’ from a user agent (i.e., ‘client’) that requests an IP address corresponding
communication link) between the user agent (i.e., ‘client’) and origin server (i.e.,
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wherein Kiuchi’s “client-side proxy” is the “client,” the Board “assum[ed] … that
that the client-side proxy satisfied the “client” limitation as well. Appx62-63. The
Board further explained that the no-invalidity finding in VirnetX I was not
dispositive, because the district court’s decision was based on “different evidence,
claims were obvious over Kiuchi in view of Rescorla and/or RFC 1034. Appx67-
because Petitioners had shown that “the disputed claims are unpatentable over
petition, the Board determined that Kiuchi anticipates all challenged ’135 patent
31); Appx3982-3983; Appx3987). The Board also found that Kiuchi discloses the
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site”; and, if so, “automatically initiating the VPN between the client computer and
Appx3983-3984; Appx4021-4022).
term “client computer” narrowly to mean a “user’s computer,” the Board found
Appx25-26; see Appx26 & n.4 (noting that VirnetX “agree[d] that Kiuchi’s ‘user
agent’ is the same as the claimed ‘client computer’”). Additionally, the Board
rejected VirnetX’s contention that the “client-side proxy” could not also be a
those articulated in the ’151 proceedings. Appx26-29; see supra pp. 16-17.
Kiuchi discloses the claimed “VPN.” Appx29-34. The Board explained that
overcome the claim language and specification, particularly given the Board’s
obligation to give terms their broadest reasonable interpretation and that disclaimer
“‘generally only binds the patent owner.’” Appx31-32; Appx34 (quoting Tempo
Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973, 978 (Fed. Cir. 2014)).
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SUMMARY OF ARGUMENT
patent claims are unpatentable over Kiuchi. Consistent with the arguments
advanced in the petitions (of which VirnetX was well aware), the Board found that
Kiuchi discloses a “DNS proxy module” that performs each claim step. The Board
that VirnetX never disputed was taught by Kiuchi. Substantial evidence also
supports the Board’s finding that Kiuchi discloses the claimed “client” under two
alternative mappings—one that VirnetX does not dispute, and a second applying
determinations regarding the ’135 patent claims. The record amply supports the
Board’s finding that Kiuchi discloses the claimed “client computer,” also based on
two alternative mappings (only one of which VirnetX challenges). The Board also
properly rejected VirnetX’s attempt to import its own purported disclaimer into
the otherwise broad “VPN” limitation—an argument that fails in any event,
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back on procedural ones. But the Board’s interpretation of the AIA’s joinder
provisions aligns with every authority to consider the issue. And Apple’s joinder
Mangrove retained decision-making authority. The Board also applied the correct
legal standard and reached the correct result in determining that Mangrove’s agent
Mangrove Partners was not a real-party-in-interest. Finally, the Board acted within
interest, given that the Board undisputedly applied the correct standard to the
relevant facts.
STANDARD OF REVIEW
This Court reviews “the Board’s factual findings for substantial evidence
and its legal conclusions de novo.” Rambus Inc. v. Rea, 731 F.3d 1248, 1251 (Fed.
Cir. 2013). “Substantial evidence is something less than the weight of the evidence
but more than a mere scintilla of evidence.” In re Mouttet, 686 F.3d 1322, 1331
evidence. In re Affinity Labs of Tex., LLC, 856 F.3d 883, 894 (Fed. Cir. 2017).
This Court reviews the Board’s claim construction de novo, and “any
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System Int’l, Inc., 832 F.3d 1335, 1340 (Fed. Cir. 2016). During IPR proceedings,
the Board gives claims their “broadest reasonable interpretation in light of the
claim language and the specification.” Polaris Indus., Inc. v. Arctic Cat, Inc., 882
discretion. Wi-Fi One, LLC v. Broadcom Corp., 887 F.3d 1329, 1339 (Fed. Cir.
2018).
ARGUMENT
Each challenged ’151 patent claim recites “a domain name server (DNS)
proxy module that intercepts DNS requests sent by a client” and performs several
“midstream” and argues that the Board’s “new theory” lacks substantial evidence
support. Br. 31-32, 36-37. VirnetX’s arguments require several unwarranted leaps
5
Emphases are added unless otherwise indicated.
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VirnetX contends (Br. 31-34) that Petitioners initially argued that Kiuchi’s
client-side proxy was the claimed “DNS proxy module,” but then “shifted gears” to
rely on the combination of the client-side proxy and C-HTTP name server. That is
“Kiuchi’s client-side proxy – working in concert with the C-HTTP name server –
in concert with the C-HTTP name server”). Mangrove and Apple also explained
that “the client-side proxy determines whether the request corresponds to a secure
server by asking ‘the C-HTTP name server whether it can communicate with the
admitted that Mangrove’s petition relied on “Kiuchi’s ‘client-side proxy’ and ‘C-
HTTP name server’ for allegedly disclosing” the claimed “DNS proxy module.”
Appx3932.6
6
Black Swamp’s petition focused on Kiuchi’s client-side proxy (Appx3879),
but VirnetX was hardly deprived of notice and an opportunity to be heard on this
issue; VirnetX itself pointed out the difference. Appx3932 (VirnetX arguing that
“Black Swamp relies on different portions of the references for the same claim
feature,” namely “Kiuchi’s ‘client-side proxy’ alone” and contrasting with
Mangrove’s position). As the Board concluded, “any alleged difference” in Black
Swamp’s petition was not “sufficiently different and complex to preclude joinder.”
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VirnetX thus knew that Petitioners were relying on the client-side proxy and
C-HTTP name server for the “DNS proxy module” limitation. Despite several
response spent less than a page addressing the merits and offered no rebuttal to
Petitioners’ argument that the client-side proxy and C-HTTP name server together
whether the request corresponds to a secure server by asking the C-HTTP name
server whether it can communicate with the host specified in a given URL.’”
the claimed “DNS proxy module” to Kiuchi’s client-side proxy and C-HTTP name
Petitioners identified “the client-side proxy [as] the alleged DNS proxy module”
client-side proxy “working in concert with the C-HTTP name server” as the “DNS
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whether” step, the C-HTTP name server “examines whether the server-side proxy
server”). Appx3038.
In reply, Petitioners reiterated the position from their petitions, namely that
“the client-side proxy and C-HTTP name server ‘determin[e]’ whether access to a
secure website was requested.” Appx3199 (second emphasis in original); see also
id. (“[T]he client-side proxy works with the C-HTTP name server to resolve a
‘determin[e]’ that the HTTP GET request sent by the user agent was for a secure
mapping of the client-side proxy and the C-HTTP name server to the claimed
“DNS proxy module,” the Board gave VirnetX a third chance: it authorized a sur-
reply for VirnetX to address issues it claimed not to have had “a fair opportunity to
Petitioners’ argument that the client-side proxy and C-HTTP name server together
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36) to Petitioners’ mapping of Kiuchi to the “DNS proxy module” limitation thus
fails in light of the three separate opportunities VirnetX had to address it.
acknowledges (Br. 35), the Board recognized that “Petitioner … argued that the
client-side proxy and the C-HTTP name server perform the claimed determining
step in the Petition.” Appx86.7 The Board cited the very petition passages
discussed above (supra p. 22) in finding that Kiuchi discloses the claimed “[DNS]
proxy module that intercepts DNS requests” and “determin[es] whether the
Appx2016-2020). The Board further explained that “Kiuchi discloses [that] the
‘client-side proxy asks the C-HTTP name server whether it can communicate with
the host specified in a given URL” and that the C-HTTP name server “examines
from the client-side proxy.” Appx58 (citing Appx2020). While the Board focused
on the C-HTTP name server’s role in “determining whether” the request is for a
7
The Board did not “equat[e] ‘Kiuchi’s C-HTTP name server (and not the
client-side proxy) with the claimed DNS proxy module.’” Br. 35. In the passage
VirnetX cites, the Board merely discussed its view of Black Swamp’s petition.
Appx62. Ultimately, the Board adopted the positions in Mangrove’s petition
(Appx57), which Black Swamp adopted in reply (Appx3199-3200).
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HTTP name server, arguing that it was not part of the claimed “DNS proxy
Appx3467-3468.8
VirnetX’s cited cases do not justify disturbing the Board’s decision. Br. 31,
ComplementSoft, LLC, 825 F.3d 1341, 1350-1351 (Fed. Cir. 2016), rev’d on other
grounds, 138 S. Ct. 1348 (2018), the Board adopted a construction that neither
party advocated for a term whose meaning was never disputed. Similarly, in In re
Magnum Oil Tools International, Ltd., 829 F.3d 1364, 1381 (Fed. Cir. 2016), the
Court held that the Board is not “free to adopt arguments on behalf of petitioners
that could have been, but were not, raised by the petitioner.” Here, there was no
Rather, the Board expressly agreed with the petition’s mappings after granting
VirnetX three opportunities to address this precise issue. There was no due
process violation. See Anacor Pharms., Inc. v. Iancu, No. 2017-1947, slip op. 15
8
VirnetX improperly reads (Br. 35) the Board’s statement that “Kiuchi
discloses … a [DNS] proxy module (i.e., C-HTTP name server)” (Appx60) in
isolation, rather than in the context of the Board’s acceptance of—and reliance
on—Petitioners’ mapping in the petition. See Elbit Sys. of Am., LLC v. Thales
Visionix, Inc., 881 F.3d 1354, 1359 (Fed. Cir. 2018) (“[W]e will not find legal
error based upon an isolated statement stripped from its context.” (citation
omitted)); VirnetX Inc. v. Apple Inc., 665 F. App’x 880, 886 (Fed. Cir. 2016)
(nonprecedential) (same).
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Case: 17-1368 Document: 58 Page: 44 Filed: 05/14/2018
(Fed. Cir. May 14, 2018) (no due process violation where “Board did not
materially deviate from the theory … in the petition,” which patentee “had ample
Geophysical Corp., No. 2016-2099, __ F.3d __, 2018 WL 2090314, at *13 (Fed.
Cir. May 7, 2018) (“Having put [the limitation] at issue, [patentee] was well aware
that the Board could alter its [position] in the final written decision.”).
limitation rests on the (incorrect) assertion that the “C-HTTP name server alone
performs all the claimed steps of the DNS proxy module.” Br. 36. But as
discussed above (supra pp. 22-27), Petitioners argued and the Board found that
“Kiuchi’s client-side proxy – working in concert with the C-HTTP name server –
86 (citing Appx2020); see Paice LLC v. Ford Motor Co., 881 F.3d 894, 905 (Fed.
Cir. 2018) (Board’s decision supported where Board “cit[ed] to the relevant
portions of [petitioner’s] briefing that explain how the prior art discloses the
function of the claimed “DNS proxy module.” E.g., Appx60-61 (“Kiuchi discloses
‘[t]he C-HTTP name server determin[es] whether the host in the C-HTTP name
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Case: 17-1368 Document: 58 Page: 45 Filed: 05/14/2018
request … is part of the closed network and whether the connection is permitted,
and if so, returns an IP address and public key.’” (quoting Appx3199)). The
discloses a “DNS proxy module” that “determines whether the DNS request
GmbH & Co., 856 F.3d 1019, 1028 (Fed. Cir. 2017) (“[A] tribunal may use a
party’s own submissions against it, even if the opposing party bears the burden of
persuasion.”).
VirnetX next asserts (Br. 37-38) that the Board applied an “inconsistent
incorrect. The Board again adopted the petition’s arguments, which were
“DNS request” limitation in the claim’s preamble, which does not even recite a
module that intercepts DNS requests sent by a client and, for each intercepted DNS
request, performs the steps of …”); cf. Appx60-61 (separately addressing the
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Case: 17-1368 Document: 58 Page: 46 Filed: 05/14/2018
when discussing that “DNS request” limitation is irrelevant to the Board’s separate
server” and “server-side proxy” are both “secure server[s],” because the
that the client-side proxy automatically initiates an encrypted channel between the
user agent (acting as a client) and the origin server (a secure server) via the server-
side proxy (also a secure server).”); see Appx7379-7380(¶29) (“Both the server-
side proxy and origin server are secure servers[.]”). VirnetX never disputed that
Kiuchi’s origin server and server-side proxy are both “secure server[s].” See
853 F.3d 1316, 1327-1328 (Fed. Cir. 2017) (inappropriate “to find fault” where
own treatment).
The Board agreed with Petitioners’ mapping of Kiuchi to the “secure sever”
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Case: 17-1368 Document: 58 Page: 47 Filed: 05/14/2018
and “automatically initiating” limitations was also entirely consistent with mapping
both Kiuchi’s origin server and server-side proxy to the claimed “secure server.”
encrypted channel between the client and the secure server.” Appx229(46:66-67).
VirnetX accuses (Br. 38) the Board of not “explicitly construing” the term “client.”
But the Board made two findings regarding the claimed “client”: (1) that Kiuchi’s
Board’s purported finding that “Kiuchi’s client-side proxy meets the ‘client’
limitation.” Br. 38. But VirnetX ignores the Board’s separate finding that
9
The Board did not “disclaim[] any reliance” on Apple’s expert Dr. Guerin’s
testimony. Br. 37 n.8. Rather, the Board found the testimony “helpful” and
“entitled to due weight.” Appx78.
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‘request’ from a user agent (i.e., ‘client’)[.]”). That determination was not
agent” was a “client” under any proposed construction. VirnetX’s appeal brief
even admits the point. Br. 10 (describing Kiuchi’s “client (also referred to as a
user agent)”); see Appx3038-3040 (not disputing that Kiuchi’s “user agent” is a
“client”); Hakim v. Cannon Avent Grp., PLC, 479 F.3d 1313, 1318-1319 (Fed. Cir.
2007) (“When there is no dispute as to the meaning of a term that could affect the
LLC v. Google Inc., 672 F. App’x 988, 991 (Fed. Cir. 2016) (nonprecedential)
to the claimed “client.” See Appx2017, Appx3725 (“The user agent is a ‘client,’
under that term’s broadest reasonable interpretation, because the user agent is a
Appx3880 (“[B]ecause the user agent is a computer and/or computer program from
which a resource request is made, the user agent is a ‘client’ under the broadest
reasonable construction of that term.”). The Board agreed with Petitioners that
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20-22, 27, 28, 31))) because “Kiuchi discloses a ‘request’ from a user agent (i.e.,
“Kiuchi does not disclose an ‘encrypted channel between the user agent and the
origin server via the server side proxy,’” because “encryption does not extend to
argument, explaining that “claim 1 does not recite ‘end-to-end encryption’ or that
By not challenging the Board’s findings on appeal, VirnetX has waived any
argument that Kiuchi’s “user agent” is not a “client” or that Kiuchi lacks an
“encrypted channel” or “secure channel” between the user agent and secure server.
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006)
(“[A]rguments not raised in the opening brief are waived.”). In any event, as
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Case: 17-1368 Document: 58 Page: 50 Filed: 05/14/2018
Since VirnetX never disputed that Kiuchi’s “user agent” is a “client,” the
user, we are not persuaded by Patent Owner that Kiuchi fails to disclose that the
a user, Patent Owner does not demonstrate sufficient differences between a ‘client-
10
Indeed, the Board’s final written decision regarding the ’135 patent (see
infra pp. 37-40), which was issued by the same panel, on the same day, and
addressed nearly identical claims, observed with respect to the “client computer”
limitation that VirnetX apparently agreed “that Kiuchi’s ‘user agent’ is the same as
the claimed ‘client computer,’” which neither party differentiated from the “client”
recited in the ’151 patent claims. Appx25-26. VirnetX also does not challenge
that finding on appeal. Br. 44-45.
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Case: 17-1368 Document: 58 Page: 51 Filed: 05/14/2018
side proxy’ of Kiuchi that is ‘associated with’ a user … and the claimed
‘client[.]’”).
“user” as VirnetX defined it, because the “‘client-side proxy’ receives a request for
access from a user agent” and a skilled artisan would understand that, for a user “to
with the ‘client-side proxy’ to which the user agent sends a request.” Appx62-63.
The Board did not need to formally construe “client” to make that finding.
affect the unpatentability outcome because the Board concluded that the
Friskit, Inc. v. Real Networks, Inc., 306 F. App’x 610, 612 (Fed. Cir. 2009)
definition”). 11
11
VirnetX’s contentions (Br. 40, 42) that Kiuchi’s disclosure of a “user agent”
and a “client-side proxy” requires “separation as a necessary feature of [Kiuchi’s]
system” and that the ’151 patent “discloses that a client and a proxy server are
distinct” also miss the mark. As the Board explained, “even assuming that Kiuchi
refers to a ‘client’ and ‘client-side proxy’ separately,” there are no “sufficient
differences between the ‘client-side proxy’ of Kiuchi and a ‘client,’ as recited in
claim 1.” Appx63. Similarly, the ’151 patent’s discussion of both a “client” and a
“proxy server” does not preclude Kiuchi’s client-side proxy from being a “client”
as claimed. See Appx3203 (“[T]here can be multiple clients and servers in a
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Case: 17-1368 Document: 58 Page: 52 Filed: 05/14/2018
that VirnetX I compels a finding that Kiuchi’s “client-side proxy” cannot be the
claimed “client.” As the Board explained (Appx63-64), this Court considered only
whether substantial evidence supported the jury’s verdict that invalidity was not
proven “by clear and convincing evidence.” VirnetX I, 767 F.3d at 1323-1324.
While the Court ruled that the jury heard evidence that “the ‘client’ of Kiuchi is
actually a web browser,” id. at 1324, it did not hold that the record compelled the
conclusion that Kiuchi’s client-side proxy cannot meet the “client” limitation—
and it certainly did not “reject[] Apple’s argument ‘that the “client-side proxy” of
Kiuchi meets th[at] limitation’” (Br. 41). See Appx64. As this Court has
explained, “the PTO … and the court system in patent infringement actions take
different approaches in determining validity and on the same evidence could quite
correctly come to different conclusions.” In re Baxter Int’l, Inc., 678 F.3d 1357,
1364 (Fed. Cir. 2012) (internal quotation marks omitted). Acknowledging VirnetX
I, the Board accordingly explained that the district court proceeding involved
“different evidence, arguments, and standards of proof,” and therefore did not
system, and … a device can sometimes act as a client and sometimes as a server.”).
The ’151 patent itself explains that processes can be distributed across multiple
computers or integrated onto a single computer. See, e.g., Appx225(38:30-35).
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Appx65.12
conceding that obviousness is not relevant here because the secondary references
(Rescorla and RFC 1034) addressed only claim limitations that VirnetX does not
Kiuchi. Appx67.13
12
The Board’s statement that its construction of “client” was “slightly”
broader than the district court’s construction was neither “vague” nor erroneous
(Br. 39); the Board had already construed “client” in a separate IPR proceeding
involving the ’151 patent. See Appx4146-4147 (“a device, computer, system, or
program from which a data request to a server is generated”); see also Appx2006
(Petitioners advocating for same construction in the proceedings at issue). That
construction was fully supported by the specification, which describes “client”
broadly. See Appx2006. Given the Board’s extensive history with VirnetX’s
patents and the ’151 patent in particular, there was nothing unreasonable about
that. See, e.g., Paice, 881 F.3d at 905 (affirming Board decision where technology
was “familiar based in part on [the patentee’s] repeated arguments in related
proceedings and the Board’s hundreds of pages of analysis in these six
proceedings,” and where the Board’s findings “flow[ed] directly from its rejection
of [the patentee’s] arguments”).
13
Rescorla and/or RFC 1034 were asserted in case the Board determined that
Kiuchi did not disclose “automatically initiating an encrypted [or secure] channel”
and/or that Kiuchi’s client-side proxy and/or C-HTTP name server did not perform
certain tasks. Appx2028-2048; Appx3735-3754; Appx3891-3892. VirnetX states
that those points “are not at issue in this appeal” (Br. 9 n.1, 43-44), and has thus
abandoned any argument that Kiuchi does not disclose them. See also supra
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Case: 17-1368 Document: 58 Page: 54 Filed: 05/14/2018
In any event, VirnetX never argued that a skilled artisan would not have
combined Kiuchi with Rescorla and, regarding RFC 1034, argued only that
“Kiuchi expressly states that the C-HTTP name server does not use DNS
have been obvious to combine Kiuchi with Rescorla and/or RFC 1034);
Board was not obligated to address arguments VirnetX did not raise. Novartis, 853
F.3d at 1328; see Paice, 881 F.3d at 905 (Board’s obviousness analysis sufficient
and was “commensurate with [those] arguments”); cf. In re Nuvasive, Inc., 842
F.3d 1376, 1382 (Fed. Cir. 2016) (“[T]he PTAB must make a finding of a
pp. 31-32 (explaining that VirnetX abandoned its “encrypted channel” argument on
appeal).
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’151 IPR (supra pp. 30-33), VirnetX concedes that the Board in the ’135 IPR
relied on Kiuchi’s “user agent” as the claimed “client computer” (Br. 44), and does
not dispute that Kiuchi’s “user agent” is a “client computer” even under VirnetX’s
Of course, “the Board is not bound by any findings made in its Institution
Decision. At that point, the Board is considering the matter preliminarily without
the benefit of a full record. The Board is free to change its view of the merits after
inclinations were wrong.” Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1068 (Fed.
Cir. 2016) (emphasis in original). The relevant question is thus not whether the
Board’s final decision differs from its institution decision, but whether VirnetX
had notice and an opportunity to respond to the Board’s ultimate position. The
14
Moreover, the Board’s institution decision did acknowledge Petitioners’
position that the “user agent” was the claimed “client computer.” E.g., Appx403
(“As Petitioner explains, Kiuchi discloses, for example, that the ‘C-HTTP name
server evaluates … whether the connection between the user agent and the origin
server is permitted.’” (quoting Appx261-262)).
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Case: 17-1368 Document: 58 Page: 56 Filed: 05/14/2018
appear to advance two alternative theories, pointing to: (1) a request sent by the
user agent to the client-side proxy, and (2) a C-HTTP request to be sent by the
Petitioners rely “in some instances on Kiuchi’s user agent and origin server for the
proxy servers automatically initiate the secure connection to encrypt any traffic
sent over the Internet between the user agent and the origin server.”); Appx263,
Appx1872 (“Data is securely transmitted between the user agent and origin server
because the proxy servers automatically encrypt any traffic sent between them.”);
see also Appx1365 (“The Petition explained how two different aspects of the
Kiuchi system met the ‘client computer’ and ‘target computer’ elements of the
claims: (1) the client-side and server-side proxies, and (2) the user agent and
discloses two ‘client computer[s]’: (1) the user agent … and (2) the client-side
proxy[.]” (emphasis in original)). Thus, VirnetX had ample notice and opportunity
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Despite this notice, VirnetX never disputed this point. See Appx1226-1230
computer is the user agent[.]”); see also Appx26 (Board recognizing that “Patent
Owner agrees that Kiuchi’s ‘user agent’ is the same as the claimed ‘client
computer’ and thus satisfies its own, narrow construction of ‘client computer.’”
(second emphasis in original)). VirnetX does not even acknowledge, much less
refute, these findings that it conceded the point. See Br. 10 (noting Kiuchi’s
“client” is “also referred to as a user agent”). It cannot walk away from those
admissions now.15
proxy,” VirnetX also claims (Br. 44) that the “client-side proxy” mapping “fails for
the same reasons” as in the ’151 IPR. But as in the ’151 IPR (supra pp. 33-36), the
correct, concluding that Kiuchi’s client-side proxy was a “client computer” even
must be ‘associated with’ a user, we are not persuaded by Patent Owner that
15
VirnetX’s suggestion (Br. 45) that the “user agent” fails to “perform the
functions of the client computer” merely repackages its arguments regarding the
VPN limitation, which should be rejected. See infra pp. 41-47.
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Case: 17-1368 Document: 58 Page: 58 Filed: 05/14/2018
Kiuchi fails to disclose this feature.”); Appx27 (“Patent Owner does not
‘associated with’ a user … and the claimed ‘client computer[.]’”); see also
compels a finding that Kiuchi’s “client-side proxy” cannot be the claimed “client
evidence, arguments, and standards of proof.” See Appx27-29; see also supra pp.
35-36.
VPN between the client computer and the target computer.” E.g., Appx157(47:29-
32). VirnetX does not dispute that Kiuchi discloses a “VPN” as construed by the
pointing to its own purported disclaimer. This is not only improper, but futile—
VirnetX contends (Br. 46) that the Board erred by failing to construe “VPN”
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Case: 17-1368 Document: 58 Page: 59 Filed: 05/14/2018
communications that are not “direct.” Br. 46-47. But “prosecution disclaimer
ensures that claims are not ‘construed one way in order to obtain their allowance
and in a different way against accused infringers.’” Aylus Networks, Inc. v. Apple
Inc., 856 F.3d 1353, 1360 (Fed. Cir. 2017). It does not provide a mechanism for a
The Board recognized that the claims require “‘initiating the VPN between
the client computer and the target computer,’ but [do] not recite or otherwise
contrary. Br. 46-48. Under these circumstances, “the PTO is under no obligation
generally only binds the patent owner.” Tempo Lighting, Inc. v. Tivoli, LLC, 742
16
Indeed, claims that are effectively amended through argument alone are not
subject to intervening rights. Marine Polymer Techs., Inc. v. HemCon, Inc., 672
F.3d 1350, 1365 (Fed. Cir. 2012) (en banc).
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VirnetX’s cited cases (Br. 46) are not to the contrary. Straight Path IP
Group, Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1362 (Fed. Cir. 2015), referenced
the prosecution history only as “confirm[ing]” what the claim language and
specification required. And in Arendi S.A.R.L. v. Google LLC, 882 F.3d 1132,
1136 (Fed. Cir. 2018), the applicant actually amended the claims during
prosecution to narrow them. Neither case holds that a patentee may leverage its
To hold otherwise would allow patentees like VirnetX to narrow the scope of
otherwise invalid claims through argument, without the consequences that attach to
formal amendment. The Board correctly determined that “the collective evidence
still discloses a VPN. VirnetX’s contrary argument applies only where Kiuchi’s
user agent and origin server are mapped to the claimed “client computer” and
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the client-side and server-side proxies. See Br. 45, 48 (arguing only that the user
agent and origin server are precluded from directly communicating). Thus, if the
determination that the client-side proxy is a “client computer” (supra pp. 40-41), it
With respect to the user agent/origin server mapping, VirnetX contends (Br.
48-49) that Kiuchi lacks direct communication because “the C-HTTP proxy
servers preclude the user agent and origin server from directly communicating by
messages.” But the ’135 specification discloses embodiments that include those
computers 2900 and 2902 communicate over the Internet through a path that
computer 2900 maintains a separate connection with ISP 2901, which “encrypt[s]
and decrypt[s] the VPN packets” and “translates packets arriving at the ISP into
18
As the Board acknowledged (Appx34), VirnetX repeatedly failed to “explain
clearly how to interpret ‘direct,’” likely attempting to avoid undermining its
infringement arguments in parallel litigation. See, e.g., Appx4601-4602(262:11-
263:20) (VirnetX’s expert acknowledging he failed to identify what is required for
“direct” communication).
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Case: 17-1368 Document: 58 Page: 62 Filed: 05/14/2018
packets having a different IP header before they are transmitted to host computer
2900.” Appx154(41:56-65).
Appx130.
an IP header” before being transferred to “the next hop or destination” (i.e., TARP
router) along the route, where the next TARP router “decrypt[s]” the packet and
“perform[s] a selected operation on some data included with the clear IP header
attached to the encrypted TARP packet” before routing it to the next hop.
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packet 340 … is encrypted using the link key for communication with the first-
unwrapped, the inner header is evaluated, and if the inner header indicates that the
packet is destined for that machine then the packet is forwarded to the IP stack[.]”);
TARP embodiment, which the patent identifies “as a key part of the novel solution
routers.” Once the connection is established between Kiuchi’s user agent and
origin server, the “client-side proxy forwards HTTP/1.0 requests from the user
5544(¶32); VirnetX Br. 13. The server-side proxy similarly “forwards requests to
the origin server.” Appx3984; see Appx5544(¶33); VirnetX Br. 13. Responses
sent from the origin server are received by the server-side proxy, “encrypted in C-
HTTP form,” and “forwarded to the client-side proxy” where they are “decrypted
and the HTTP/1.0 response extracted” and “sent to the user agent.” Appx3984; see
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Appx5544(¶33); VirnetX Br. 13. 19 Accordingly, the only reasonable result on this
proposed construction. See, e.g., VirnetX I, 767 F.3d at 1319 (noting in discussing
related ’504 and ’211 patents, that “computer 3301 can establish a VPN
communication link 3323 with secure server computer 3320 through proxy
computer 3315”). This Court may affirm on that basis as well. See In re
determinations, VirnetX ends its brief with procedural objections. But VirnetX’s
arguments are doubly misguided—the Board acted properly and, regardless, any
19
VirnetX’s contention that Kiuchi’s client-side and server-side proxies “stop
communication,” “re-format[],” and “re-send[] messages” is incorrect. Rather, as
the Board found, messages are merely “encrypted in C-HTTP format” and
“forwarded” to the user agent and/or origin server. Appx3984; see Appx20
(“[T]he client-side proxy forwards ‘requests from the user agent in encrypted form
using C-HTTP format.’” (quoting Appx3984)). Indeed, this Court previously held
that “direct communication” was not impeded by devices that “merely translate
addresses from the public address space to the private address space, but do not
terminate the connection,” noting that “routers, firewalls, and similar servers ... do
not impede ‘direct’ communication.” VirnetX I, 767 F.3d at 1320.
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Joinder requests are governed by 35 U.S.C. § 315(c), which grants the PTO
Director discretion to “join as a party to [an] inter partes review any person who
satisfied § 311’s requirements: Apple is not the patent owner; the petitions
requested cancellation under 35 U.S.C. § 102 or 103; and the petitions were filed
over nine months after patent issuance. 35 U.S.C. § 311(a)-(c). The Board was
Section 315(b)’s one-year time bar does not provide otherwise. Its text is
clear:
Every authority that has considered subsections 315(b) and (c) together has
reached the same conclusion—a person who would otherwise be time-barred may
petition. Two Members of this Court explained that “the exception to the time bar
for request[s] for joinder was plainly designed to apply where time-barred Party A
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Case: 17-1368 Document: 58 Page: 66 Filed: 05/14/2018
seeks to join an existing IPR timely commenced by Party B when this would not
introduce any new patentability issues.” Nidec Motor Corp. v. Zhongshan Broad
Ocean Motor Co., 868 F.3d 1013, 1020 (Fed. Cir. 2017) (Dyk, J., joined by
Inc. v. Apple Inc., 803 F.3d 652, 657 (Fed. Cir. 2015), concluded that “timeliness
issue[s can] be[] avoided if” a time-barred petitioner requests to join an identical
and timely petition filed by another party, because § 315(b) permits “an otherwise
The PTO reads the statute similarly. Exercising the broad authority
partes review” (35 U.S.C. § 316(a)(4)), the PTO determined that § 315(b)’s time
bar “shall not apply when the petition is accompanied by a request for joinder.”
37 C.F.R. § 42.122(b). As the PTO stated in issuing the rule, “[t]his [approach] is
consistent with the last sentence of 35 U.S.C. 315(b).” 77 Fed. Reg. 48,690 (Aug.
14, 2012). The PTO has regularly followed this rule. E.g., Microsoft Corp. v.
ProxyConn, Inc., IPR2013-00109, Paper 15 at 4-5 (P.T.A.B. Feb. 25, 2013); Dell,
20
The en banc Court overruled Achates’ holding that time-bar rulings under
§ 315(b) are unreviewable, but did not address the panel’s interpretation of § 315’s
joinder rules. Wi-Fi One LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018)
(en banc). Achates is no longer “precedential” (VirnetX Br. 52 n.12), but remains
persuasive on this point.
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The consensus reading of § 315 fully accords with the statute’s purpose.
The House Committee Report explained that, while IPR “must be sought by a
party within 12 months of the date when the party is served with a complaint for
infringement,” § 315(c) grants the PTO authority to “allow other petitioners to join
an inter partes or post-grant review.” H.R. Rep. No. 112-98, pt. 1, at 76 (2011);
see also Nidec, 868 F.3d at 1020 (Dyk, J., joined by Wallach, J., concurring) (“the
IPR aligns with a key congressional goal: helping “protect the public’s ‘paramount
interest in seeing that patent monopolies … are kept within their legitimate
scope.’” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144 (2016). The
advances that purpose by permitting the PTO—in its discretion—to add parties to
an ongoing proceeding to ensure a full and fair “second look” at the agency’s
original decision.
Even if the statutory text were not clear, any ambiguity would be resolved
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enact rules that are reasonable in light of the text, nature and purpose of the
statute.” Cuozzo, 136 S. Ct. at 2142 (alterations and internal quotation marks
omitted). Here, Congress has given the PTO authority “to issue rules ‘governing
inter partes review,’” and the joinder regulation “is a rule that governs inter partes
reasonable; indeed, VirnetX does not seriously argue that the PTO’s regulation is
of manifestly competing interests.” Chevron, U.S.A. Inc. v. NRDC, Inc., 467 U.S.
unreasonable, VirnetX can only prevail by showing that the statute unambiguously
21
Contrary to VirnetX’s amici’s argument (BIO/PhRMA Br. 11-12), Congress
gave the PTO broad authority in § 316(a)(4) to “prescribe regulations …
establishing and governing inter partes review under this chapter.” Other
subsections of § 316(a) merely outline points that Congress wanted to make sure
were addressed through rulemaking. E.g., § 316(a)(10) (“providing either party
with the right to an oral hearing as part of the proceeding”); § (a)(13) (“providing
the petitioner with at least 1 opportunity to file written comments”). If the PTO’s
rulemaking authority were limited to those narrow issues, subsection (a)(4) would
be superfluous.
22
VirnetX cannot develop a “Chevron step two” argument in its reply; the
issue is waived on appeal. SmithKline, 439 F.3d at 1319.
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forbids the Board from joining an otherwise time-barred party to an instituted IPR.
seeking joinder “properly file a petition under section 311” means the party must
comply with § 315(b)’s time limit. Br. 50-51, 58. That strained reading makes
little sense. If Congress had intended for § 315(b)’s one-year bar to apply to
joinder, “it would have said so.” State Farm Fire & Cas. Co. v. United States ex
rel. Rigsby, 137 S. Ct. 436, 443 (2016). Congress could have expressly referenced
§ 315(b) or required that the petition be properly filed “under this chapter”—
language Congress used elsewhere. See, e.g., 35 U.S.C. § 315(e) (referencing IPR
“of a claim in a patent under this chapter”); § 316(a)(1) (“proceeding under this
this chapter”). Instead, Congress required only a petition properly filed “under
section 311”—a provision that includes no one-year bar. See, e.g., Dell, IPR2013-
00385, Paper 17 at 5 (“Section 311 includes various requirements, … but does not
VirnetX argues that the words “properly filed” signal that the PTO can only
time limit. Br. 55-58. VirnetX tellingly provides no explanation for why Congress
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Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (Congress
“does not, one might say, hide elephants in mouseholes.”). VirnetX’s only direct
support for its assertion is a few sentences from Senator Kyl’s 2008 statement
originally made in reference to an earlier bill never enacted into law. Br. 56.
Senator Kyl’s statement did not mention § 315(b)’s time bar; he spoke only of
unspecified “time deadlines for filing petitions” (154 Cong. Rec. S9988), which
could refer equally to the “Filing Deadline” that eventually became § 311(c). See
S. 3600, 110th Cong., § 5(c) (2008). Even if Senator Kyl’s statement had clearly
Congress on a different bill three years earlier cannot override the plain text of
time bar, because § 311(a) states that a “person who is not the owner of a patent
chapter.” Br. 58. But such a reading renders § 315(b)’s specific reference to § 311
23
VirnetX also cites Supreme Court decisions interpreting a very different
phrase: “a properly filed application for State post-conviction or other collateral
review.” Br. 55-56. Unlike that open-ended language, the provision here refers
narrowly to a party who “properly files a petition under 35 U.S.C. § 311.” See
supra p. 53.
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clearly.
that courts “must give effect to every word that Congress used in the statute.”
Lowe v. SEC, 472 U.S. 181, 207 n.53 (1985); see also Scalia & Garner, Reading
Law 176 (2012). By its terms, § 315(b)’s time bar only applies to “petitions”
requesting IPR; it does not apply to joinder requests. If VirnetX were correct that a
party may only seek joinder if it files a petition within the one-year time limit, then
§ 315(b)’s second sentence would be deprived of all meaning, because the first
sentence’s time bar effectively would “apply to a request for joinder under
subsection (c).”
clarification that a joinder request may be filed after the one-year time limit,
though the accompanying petition may not. Br. 52, 54-55. But that still treats
nowhere places a time limit on joinder requests—Congress would not have sought
to “clarify” something that is clear to begin with. The only conceivable reason to
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sole authority for reading a provision as redundant did so only because the
Research Corp., 551 U.S. 128, 137 (2007). That is not the case here. See supra
pp. 48-51. 24 And while VirnetX relatedly argues (Br. 54) that § 315(c) only gives
the PTO discretion to permit joinder and not discretion to waive § 315(b)’s
litigation. Br. 52-53. “The problem with [VirnetX’s] argument, however, is that
… inter partes review is less like a judicial proceeding and more like a specialized
agency proceeding.” Cuozzo, 136 S. Ct. at 2143. Many other district court rules
proceeding … may lack constitutional standing” and “the Patent Office may
continue to conduct an inter partes review even after the adverse party has settled.”
24
VirnetX’s amici argue that (1) even a timely-filed petition may not be
instituted until months after the one-year bar has expired, and thus (2) a joinder
request may not be filed within the time allotted under § 315(b). BIO/PhRMA Br.
11. This variation on VirnetX’s theme runs into the same problem as VirnetX’s
argument—§ 315(b)’s time-bar places no limit on the time in which to request
joinder. Indeed, as amici recognize (id.), Congress dealt with joinder timing in a
different subsection (§ 316(a)(12)).
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paramount interest in seeing that patent monopolies are kept within their legitimate
scope.’” Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S.
Ct. 1365, 1374 (2018). VirnetX points to nothing in the statute indicating that
Congress intended § 315’s use of “joinder” to mirror its exact meaning in district
court litigation.
Finally, VirnetX asserts that the PTO’s interpretation of § 315 “opens the
floodgates” for the harassment of patent owners via repetitive IPR proceedings.
Br. 58-59; see also BIO/PhRMA Br. 18. But joinder does not create a new
claims are granted subject to the qualification that the PTO has ‘the authority to
reexamine—and perhaps cancel—a patent claim.’” Oil States, 138 S. Ct. at 1374.
VirnetX Br. 59 (internal quotation marks omitted). This case shows that the PTO’s
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the Board ensured that VirnetX defended no more IPR proceedings than if
Apple’s petitions involved the same patents, claims, prior art, expert declaration,
and arguments as Mangrove’s. Apple met its burden of proof, which included
harmless. See IPR Licensing, Inc. v. ZTE Corp., 685 F. App’x 933, 936 (Fed. Cir.
withstands scrutiny. First, it argues that Apple “assumed a leading role in,” and
brought “its considerable financial and legal resources” to, the proceedings. Br.
25
VirnetX’s amici assert “policy implications” and identify select cases that
they believe show “dubious joinder practices.” BIO/PhRMA Br. 5-9, 14-22. Even
were these concerns meritorious, they would be best addressed in those cases, or
by Congress. E.g., Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 458-459 (2007)
(“If the patent law is to be adjusted …, the alteration should be made after focused
legislative consideration, and not by the Judiciary[.]”).
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60. But the Board’s joinder order carefully protected VirnetX’s time and
deposition arrangements.”
or deposition time.”
Appx1983.
Second, VirnetX insists it had to “defend itself against new issues and
evidence introduced by Apple” (Br. 60), but it does not explain—or offer any
citation explaining—what those new issues were, nor did it do so before the Board.
E.g., Appx1981 (Board noting that VirnetX “does not provide details about any
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“new evidence,” VirnetX cites without analysis five new exhibits related to a prior-
see also, e.g., Appx1982 (Board noting that VirnetX had already raised the prior-
art issue). As Apple explained, Mangrove could have submitted those exhibits—
Appx1897. VirnetX had no response below, and has none now. Accordingly,
VirnetX asserts that the Board applied a “legally erroneous” test for
reasons.
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This Court confirmed as much in Wi-Fi One, LLC v. Broadcom Corp., 878
F.3d 1364, 1374 (Fed. Cir. 2018) (en banc), by explaining that the reviewability of
dissent agreed: “[N]o one disputes that [the Board’s] decision on real party in
interest is unreviewable” when the Board rejects the patent owner’s argument that
“an unidentified third-party, who has not been sued for infringement, is a real party
in interest to the petition.” Id. at 1381 (Hughes, J., dissenting). That scenario fits
this case like a glove. VirnetX does not allege that Mangrove Partners was time-
Board’s authority to decide the case. Rather, VirnetX merely contends that
Second, the Board applied the proper legal standard. Whether an entity is a
real-party-in-interest “is a highly fact dependent question that takes into account
how courts generally have used the term[] to ‘describe relationships and
26
VirnetX has not briefed—and thus waived—any argument that RPX is a
real-party-in-interest. See, e.g., Appx44; see also SmithKline, 439 F.3d at 1319.
Its sole appellate argument regarding RPX has to do with the Board’s discretionary
discovery ruling. See infra pp. 64-67.
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preclusion.’” Appx452 (quoting Office Practice Trial Guide, 77 Fed. Reg. 48,756,
48,759 (Aug. 14, 2012)). While a “‘common consideration is whether the non-
inquiry.’” Id. (quoting 77 Fed. Reg. 48,759). Indeed, the Guide empowers the
relying on the principle that “at a general level, the ‘real party-in-interest’ is the
party that desires review of the patent.” 77 Fed. Reg. 48,759; see Wi-Fi One, 887
F.3d at 1336 (quoting Guide approvingly and noting that real-party-in-interest test
boils down to whether “some party other than the petitioner is the ‘party or parties
interest standard. It concedes that the Guide governs the inquiry, but contends that
the Guide required the Board to consider whether Mangrove Partners “could have
exercised control” over Mangrove’s IPR filings. Br. 62-63. But the Guide
recognizes “no bright-line test” for determining the “necessary quantity or degree
concept.” 77 Fed. Reg. 48,759. For that reason, “the rules do not enumerate
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the statute.” Id.; see also Wi-Fi One, 887 F.3d at 1338 (Board ruling employing
the Board). As this Court has explained, “an essential element of agency is the
principal’s right to control the agent’s actions.” PG&E v. United States, 838 F.3d
1341, 1359 (Fed. Cir. 2016) (internal quotation marks omitted). Viewed through
this lens, VirnetX’s accusation that Mangrove Partners (the agent) controlled or
even had the ability to control Mangrove (the principal) is not credible.
Br. 61. But those responsibilities spring from the principal-agent agreement, under
Mangrove Partners wiring money to pay Mangrove’s filing fee (Br. 61-62)
likewise makes perfect sense: Mangrove Partners (the agent) carried out the
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VirnetX’s patents or controls Mangrove’s decisions in the IPR. See supra pp. 60-
61.
merely offered a “few small nits” and raised a question over “the use of the term
see.” Id. (internal quotation marks omitted). Such “minor” suggestions do not
685 F. App’x at 936. Even if it had been necessary to add Mangrove Partners as a
real-party-in-interest, there was no reason why “any such modification [to the
concedes would have been procedurally proper. See Br. 61 (“The Board may
27
Cross-referencing its statement of facts, VirnetX repeats its allegations that
Mangrove Partners modified an expert’s declaration after it was signed. Br. 62
(citing Br. 20-22). The Board addressed that accusation, which is of “insubstantial
importance” because the Board only relied on the declaration for information about
how a specific type of document was formatted—information “clear on simple
inspection of the … document itself.” Appx1769. VirnetX has not shown that the
Board’s decision on this point was unsupported by substantial evidence.
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interest] provision.”). VirnetX does not credibly try to justify its refusal to add
Mangrove Partners, nor does it explain what harm VirnetX could possibly have
suffered therefrom. 28
Congress granted the PTO authority to set the “standards and procedures for
exercised that power in 37 C.F.R. § 42.51, which allows a party to seek “additional
useful. Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC, IPR2012-00001, Paper 26
28
VirnetX notes that Mangrove’s offer was conditioned on VirnetX’s
agreement “not to challenge the proceedings’ compliance with the statutory
requirements.” Br. 18. But there was nothing to challenge, because it was
procedurally appropriate to add Mangrove Partners as a real-party-in-interest.
Appx3492 (VirnetX’s attorney agreeing with Board that “there is no 315(b) issue
… at this point” in adding Mangrove Partners as a real-party-in-interest);
Appx3493 (VirnetX’s attorney agreeing that the one-year bar issue only affects
RPX and Apple). Tellingly, VirnetX’s only citation to explain its refusal of
Mangrove’s offer indicates that VirnetX wanted to raise a “315(b) issue relating to
RPX.” Appx3502-3503.
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at 6 (P.T.A.B. Mar. 5, 2013) (precedential); see also Wi-Fi One, 887 F.3d at 1339
VirnetX does not challenge this discovery standard, only the Board’s finding
that VirnetX failed to satisfy it. But the Board was amply justified in finding that
RPX, (2) a Mangrove attorney “allegedly represents RPX,” and (3) “publicly
RPX.” Appx448; Appx2243. The Board found these statements reflect a “mere
VirnetX makes no attempt to show that the Board “made a clear error of
Sciences LLC, 851 F.3d 1302, 1306 (Fed. Cir. 2017) (internal quotation marks
29
On appeal, VirnetX suggests it sought to determine whether RPX was a real-
party-in-interest or a privy (Br. 65), but VirnetX made no privy argument below
and thus waived it. E.g., Appx448 (VirnetX only requested discovery regarding
real-party-in-interest). VirnetX’s brief elsewhere recognizes that the only
discovery issue presented involves a “real party-in-interest relationship.” Br. 3.
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omitted). VirnetX does not suggest that the Board overlooked or misunderstood
any evidence. (One bizarre exception concerns an interaction between RPX and
Mangrove that occurred in March 2016—months after the Board issued its
discovery ruling and almost a year after Mangrove filed its petition. Compare Br.
63-64, with Appx447, Appx1386, and Appx2242. The Board cannot have abused
its discretion by failing to grant discovery based on events that had not yet
between RPX and Mangrove. Br. 64. “Given that the Board explored the
discovery issue in detail and applied the proper legal test for finding … [real-party-
in-interest] status under section 315(b),” it did not abuse its discretion “when it
concluded that additional discovery was not warranted.” Wi-Fi One, 887 F.3d at
1340.
Moreover, VirnetX has again not shown prejudice. VirnetX could have
received the information it sought just by asking; Mangrove told VirnetX it was
willing to submit a declaration stating that (1) RPX is not—and has never been—
affiliated with RPX is now or was ever an investor in Mangrove, (3) none of
Mangrove’s investors was aware of these proceedings before the petition was filed,
declined this offer. The logical conclusion is that—as with the real-party-in-
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Mangrove’s petitions, VirnetX does not assert any such issues with Black
Swamp’s petition regarding the ’151 patent, further diminishing any harm from
VirnetX’s alleged procedural errors. Cf. Knowles Elecs. LLC v. Cirrus Logic, Inc.,
883 F.3d 1358, 1368 (Fed. Cir. 2018) (new entities that joined inter partes
VirnetX cites no authority for that assertion, which would discourage parties from
States, 138 S. Ct. at 1379. And VirnetX’s argument—raised in a Rule 28(j) letter
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filed over two weeks later—that Oil States did not address the specific facts of this
case is beside the point, because VirnetX neither raised any constitutional
challenge before the PTO nor developed one in its opening brief or Rule 28(j)
CONCLUSION
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Respectfully submitted,
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ECF-3(B)(2) REPRESENTATION
Filing, the undersigned represents under ECF-3(b)(2) that counsel for Appellee
Black Swamp IP, LLC and Appellee The Mangrove Partners Master Fund, Ltd.
have consented to their signatures on this Brief and their respective Certificates of
Interest.
CERTIFICATE OF SERVICE
I hereby certify that, on this 14th day of May 2018, I filed the foregoing
Brief for Appellees with the Clerk of the United States Court of Appeals for the
Federal Circuit via the CM/ECF system, which will send notice of such filing to all
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this
Microsoft Word 2010 in 14 point Times New Roman font. As permitted by Fed.
R. App. P. 32(g, the undersigned has relied upon the word count feature of this