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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BUNGIE, INC., ) Case Nos.
` ) IPR2015-01264
` Petitioner, ) IPR2015-01319
` ) IPR2015-01321
` vs. )
` ) Patent Nos.
`WORLDS INC., ) 7,945,856
` ) 8,082,501
` Patent Owner. ) 8,145,998
`-------------------------- )
`
` PTAB CONFERENCE CALL
` Wednesday, November 7, 2018
`
`Reported by:
`Stacey L. Daywalt
`JOB NO. 150919
`
`TSG Reporting - Worldwide - 877-702-9580
`
`BUNGIE - EXHIBIT 1051
`Bungie, Inc. v. Worlds Inc.
`IPR2015-01319
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BUNGIE, INC., ) Case Nos.
` ) IPR2015-01264
` Petitioner, ) IPR2015-01319
` ) IPR2015-01321
` vs. )
` ) Patent Nos.
`WORLDS INC., ) 7,945,856
` ) 8,082,501
` Patent Owner. ) 8,145,998
`-------------------------- )
`
` PTAB CONFERENCE CALL
` Wednesday, November 7, 2018
`
`Reported by:
`Stacey L. Daywalt
`JOB NO. 150919
`
`TSG Reporting - Worldwide - 877-702-9580
`
`BUNGIE - EXHIBIT 1051
`Bungie, Inc. v. Worlds Inc.
`IPR2015-01319
`
`
`
`Page 2
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` Wednesday, November 7, 2018
` 3:00 p.m.
`
` PTAB Conference Call, held before
`Administrative Patent Judges Ken B. Barrett,
`Karl D. Easthom and Jason J. Chung, before
`Stacey L. Daywalt, a Court Reporter and Notary
`Public of the District of Columbia.
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`A P P E A R A N C E S:
`(All appearances are telephonic)
`
` WILSON SONSINI GOODRICH & ROSATI
` Attorneys for Petitioner
` 701 Fifth Avenue
` Seattle, Washington 98104
` BY: MICHAEL ROSATO, ESQ.
` MATTHEW ARGENTI, ESQ.
` JAD MILLS, ESQ.
`
` DAVIDSON BERQUIST JACKSON & GOWDEY
` Attorneys for Patent Owner
` 8300 Greensboro Drive
` McLean, Virginia 22102
` BY: WAYNE HELGE, ESQ.
` ALDO NOTO, ESQ.
` ALAN WRIGHT, ESQ.
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` ADMINISTRATIVE PATENT JUDGE: Good
`afternoon, everybody. This is Judge Ken
`Barrett with the Patent Trial and Appeal Board.
` We're on this call for the case
`Bungie v. Worlds, IPR2015-01264, 1319 and 1321.
` As I've said, this is Judge Ken
`Barrett. On the phone with me are Judges Karl
`Easthom and Jason Chung.
` Who do we have on the phone for
`Petitioner?
` MR. ROSATO: Hi. Good afternoon,
`Your Honor. This is Mike Rosato on behalf of
`Petitioner Bungie.
` I may have a couple of my colleagues
`dialed in, Matt Argenti and Jad Mills.
` Additionally, we have a court
`reporter on the line, I believe. One should be
`on the line anyway.
` THE REPORTER: Actually, you have
`two on the line. Apparently both sides hired
`one.
` ADMINISTRATIVE PATENT JUDGE: Well,
`that's interesting. Okay.
` Who do we have on the phone for
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`Patent Owner?
` MR. HELGE: Hi. Good afternoon,
`Your Honor. This is Wayne Helge, H-e-l-g-e,
`appearing here on behalf of Worlds.
` With me, I have my colleagues Aldo
`Noto, N-o-t-o, and Alan Wright, W-r-i-g-h-t.
` And Your Honor, just as a quick
`housekeeping matter, we did file Powers of
`Attorney for Mr. Noto and Mr. Wright today, and
`also updated mandatory notices.
` One of the attorneys who was
`previously on the case has left our firm. And
`although we don't need to deal with it perhaps
`immediately, Your Honor, I would just like some
`guidance on instructions on how you would like
`us to request the removal of the other
`attorneys, the prior backup counsel, from the
`record in this case.
` ADMINISTRATIVE PATENT JUDGE: I
`believe you've done what you need to do. If
`there's anything different, I'll put it in the
`order. But I did see those papers that came in
`today, so they are in the file.
` MR. HELGE: Thank you, Your Honor.
`
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` ADMINISTRATIVE PATENT JUDGE: Okay.
` Since we have two court reporters on
`the line, I'll just ask the parties to work it
`out and one of you, or I suppose both of you,
`could file those as exhibits. I'd prefer one
`in the record so there's no confusion.
` MR. HELGE: Certainly, Your Honor.
`We can work that out.
` ADMINISTRATIVE PATENT JUDGE: Okay.
`That would be great.
` Okay. So we're having this call.
`It's a remand from the Federal Circuit. I
`understand the parties have met and conferred,
`and I thank you for that, but that you couldn't
`come to an agreement on all the procedures.
`That's understandable.
` Mr. Rosato, why don't you begin?
` MR. ROSATO: Sure, Your Honor.
`Thank you.
` Probably the threshold issue --
`well, I'll say there are two issues that seem
`to be presented here. One is the collateral
`estoppel issue. I'll use that term. And then
`separately is the RPI issue on the further
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`merits of that.
` And I'd like to begin with the
`collateral estoppel issue, because I think this
`is a threshold issue, as identified by the
`Court, and the main area where the parties were
`not able to agree on the approach on remand.
` But for very brief background, as we
`all know, Petitioner Bungie had filed six IPRs
`challenging five of the Worlds patents. Worlds
`had appealed three of those IPRs, and those are
`the three cases remanded here today.
` Worlds chose not to appeal three,
`the remain- -- the other three IPRs, and those
`cases have reached final judgment.
` So the circumstances here present a
`black letter instance of collateral estoppel or
`issue preclusion. And additionally, Patent
`Owner estoppel under 37 CFR 42.73(b)(3) is
`implicated now that we're back before the
`Board.
` So -- and then, you know, I won't
`get too deep into the merits of the case. But
`you know, these are five related patents
`sharing the same specification and patently
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`indistinct claims, and Worlds had advanced the
`exact same RPI argument in all six of the
`cases, all the remanded IPRs and the unappealed
`IPRs. The briefing was really a virtual
`cut-and-paste job.
` At the Federal Circuit, that -- the
`briefing in the unappealed IPRs, because it's
`not formally in the record in these remanded
`IPRs, it wasn't in front of the Court at that
`time. So the Court did not have the briefing
`before it on appeal, and that's reflected in
`the decision.
` And perhaps more importantly, the
`Court's instructions on remand were clear on
`the estoppel issue. The Court identified the
`estoppel issue as a threshold issue that should
`be addressed first.
` And I'll refer for reference to the
`Slip opinion page number. But at Page 20 of
`the Slip opinion, the Court stated that the
`Board: "Should first address whether Worlds is
`estopped from arguing the RPI issue," and
`explained that only if the Board determines
`that collateral estoppel does not apply should
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`the RPI issue even be further addressed.
` So as far as the proposed schedule,
`our understanding is that the issues are
`bifurcated, and according to the Court's
`instructions on remand, the R- -- sorry -- the
`collateral estoppel issue is the issue that
`should be briefed and addressed by the Board
`first.
` And under these circumstances, the
`appropriate approach would seem to be to first
`place Worlds under an order to show cause why
`judgment should not be entered against them due
`to the collateral estoppel issue.
` Should Worlds choose to respond to
`such an order, then Bungie would seek to file
`an opposition brief.
` And I will stop there, unless the
`Board wants me to go on to the RPI issue. But
`that's the briefing schedule that -- and the
`remand schedule that we were reading from the
`Court's instructions.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` I'll hear from Mr. Helge on this
`issue.
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` MR. HELGE: Good afternoon, Your
`Honor. Yes, Mr. Helge here.
` Your Honor, a couple things that
`Mr. Rosato said is -- I think are completely
`inconsistent with what the Federal Circuit
`ruled on in the opinion, in the Worlds v.
`Bungie opinion.
` I think the idea, first of all, that
`Worlds should have to respond to an order to
`show cause is completely inconsistent with
`Page 8 of the Slip opinion, which says that:
`"The party seeking a proponent of a rule or
`order has the burden of proof." And this is
`under the APA.
` What I think the Federal Circuit's
`saying here is not just on this idea of real
`party-in-interest but also on the idea of
`Bungie's desire to seek relief for collateral
`estoppel on this issue is in fact exactly what
`the Federal Circuit's speaking to. Although I
`think in here they're talking about the RPI
`issue, they are talking about the ultimate
`burden of persuasion anywhere there is a
`proponent of a rule or order.
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` So in this case I think that the
`order that Bungie proposes is not consistent
`with Page 8 of that Slip opinion and not
`consistent with the APA.
` And I think as well the idea that
`collateral estoppel should be a bifurcated
`issue that's briefed first is in- --
` ADMINISTRATIVE PATENT JUDGE: Did we
`lose him?
` MR. ROSATO: I think we may have
`lost him.
` ADMINISTRATIVE PATENT JUDGE: All
`right. Let's give him a second to call back
`in.
` MR. ROSATO: I will also send him an
`e-mail in case he doesn't realize he dropped
`off.
` ADMINISTRATIVE PATENT JUDGE: Thank
`you.
` MR. HELGE: Your Honor, this is
`Wayne Helge.
` I apologize. We've got a lot of
`construction in our building, and it seems we
`just lost power. We're back on the call. I
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`hope everyone's still here.
` ADMINISTRATIVE PATENT JUDGE: I
`believe we are.
` MR. HELGE: My sincere apologies,
`Your Honor.
` ADMINISTRATIVE PATENT JUDGE: No, no
`problem. Thank you for calling back in right
`away.
` MR. HELGE: Sure.
` So Your Honor, I believe what I was
`saying was that Bungie may be perhaps
`overselling the importance of collateral
`estoppel in this issue.
` And I'd just like to point the Board
`out to Page 19 of the Slip opinion, where the
`Federal Circuit says: "But in our view, the
`determination of whether a party is a real
`party-in-interest may differ from one IPR to
`the next, even among a set of seemingly related
`IPRs."
` And I think what we're hearing from
`the Federal Circuit here is that they want
`these issues decided together. And I think
`that the briefings should go together.
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` And in fact, it seems what Bungie's
`suggesting about the similarity of the issues
`in their statement actually implicates the
`proper identification of all RPIs in the
`matter. And indeed, I don't think that this
`Board would need to refer to collateral
`estoppel, if in fact Activision weren't an RPI
`in these cases.
` But you know, again, I think based
`on the record as we've presented before, we do
`think that there is evidence here that
`satisfies the RPI standard that the Federal
`Circuit laid out in the Applications in
`Internet Time v. RPX case which was issued on
`July 9th, 2018.
` What we would propose is that both
`RPI and collateral estoppel be briefed together
`as a single paper. Our view, again based on
`the APA and based on what the Federal Circuit
`has said about the burden of proof, is that
`Bungie, as the party seeking to rely on
`collateral estoppel and, as we know now
`according to the Worlds v. Bungie decision, has
`the burden of proof on the RPI identification
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`as well, means in our view that Bungie must go
`first on these points.
` I think perhaps what is maybe more
`important and maybe a more overarching concern
`in this case is really the idea of whether the
`record should be reopened.
` Now, we note at the very final page
`of the Federal Circuit opinion, the Federal
`Circuit does say that the Board, in its
`discretion, should consider whether to allow
`for additional discovery on this issue. And
`that's the RPI issue.
` Now, we've gone to the SOP 9. And
`we're familiar and I know Your Honors are also
`familiar with what the SOP 9 says about this
`point, and that's: "The parties seeking to
`reopen the evidentiary record should be
`prepared to demonstrate why the evidence
`already before the Board is inadequate and show
`good cause why additional evidence is
`necessary."
` And it says: "Then the panel will
`take into account whether the parties have
`already had an adequate opportunity to address
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`the issues raised by the remand with the
`evidence already of record."
` Now, there are a number of spots in
`the record where Bungie did have an opportunity
`to address this issue. Certainly, they opposed
`our motion for discovery. They were asked --
`I've got it specifically here. This is
`Exhibit 2001. And I believe it's the same
`exhibit number in all three cases, Your Honor.
` Page 31, Line 21, Judge Begley
`states: "Well, I guess to follow up on your
`statement about there being no funding and no
`control, are you taking the position that there
`are no relevant documents, so that, I mean,
`this is all an exercise in futility, and if we
`have them file a motion, because I believe
`that's what you just said?"
` Mr. Rosato's response was: "Yes, we
`think it's an exercise in futility."
` So we don't know exactly what
`Mr. Rosato was saying was going to be futile,
`whether there was already, in fact, a search
`for relevant information that would satisfy the
`routine discovery standard in
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`Rule 41.51(b)(1)(iii).
` But I also note, in Pages 4 to 5 of
`the opposition that's filed, Bungie has already
`represented to the Board that it complied with
`that routine discovery requirement.
` So I think as the -- perhaps the
`overarching question from our view is whether
`Bungie proposes to show good cause of why it
`didn't have an opportunity to open the record
`before.
` And if the record is not going to be
`reopened according to Your Honors' discretion,
`then I think that the briefing is perhaps a
`little bit simplified, at least the procedures
`here are simplified, in remand.
` ADMINISTRATIVE PATENT JUDGE: So is
`it then Patent Owner's position that we should
`not reopen the record? You're content with
`going forward on whatever evidence is already
`in the record?
` MR. HELGE: Well, Your Honor, I
`would say perhaps this -- I would put it this
`way: The way I read the Federal Circuit
`opinion -- and there were some citations, I
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`believe, to the US v. New York, New Haven and
`Hartford Railroad case about fairness about
`putting the onus on the party who doesn't have
`the access to the information to be -- have
`their feet held to the fire.
` I think what's happened here is
`we've been able to come up with evidence,
`including the development agreement that's in
`the record; also the letter, Your Honor, from
`Worlds' litigation counsel to Activision's
`counsel identifying the Destiny product as a
`possible product to be added to the case; and
`also, as the Federal Circuit noted, as they
`noted as relevant information, the fact that
`the five patents in IPR here are also five
`patents that are at issue in the litigations.
` And we think with the evidence that
`we have here, we have shown and we have met
`what the Federal Circuit looks to for -- in the
`Applications in Internet Time v. RPX
`Corporation, that in fact Activision will
`benefit from these IPRs and Activision is
`within that flexible RPI view that the Federal
`Circuit wants to apply.
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` I think one of the issues here
`that's also challenging is Bungie has noted a
`few times in the record -- and I believe
`specifically on appeal I can point you to the
`proper page. I believe it's Page 59 in their
`red brief where they talk -- they say that
`Worlds is asking Bungie to prove a negative of
`a fact.
` And it's possible, Your Honor --
`I'll be honest. It's very possible that Bungie
`can't prove a negative, because in fact with
`the details and the evidence that's already in
`the case, it's clear that Activision was in
`fact a party who was gaining the benefit of
`these IPRs and that there was a preexisting
`relationship. And I think we satisfied the RPI
`standard, perhaps the privy standard as well,
`as set forth in the Applications in Internet
`Time case.
` If we think that Bungie, who has the
`ultimate burden of proof on this issue, would
`like to come forward with evidence to disprove
`this RPI relationship, it's simply our view
`that it's on them. It's their requirement.
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` Now, Your Honor, I would just note
`that if Bungie does establish good cause -- and
`of course, Your Honors, if you, in your
`discretion, believe that discovery should be
`taken on this point according to Federal
`Circuit's opinion, obviously we fully respect
`that, although we would note that routine
`discovery attaches to any evidence that Bungie
`were to produce, and we believe that that has
`to be, in view of the Applications in Internet
`Time, a very exhaustive production. It's any
`relevant information, and not necessarily just
`documents, but information.
` Now, Mr. Rosato has noted in
`representations to the Board before, again, as
`you know, about the exercise in futility and
`the fact that there was no other control or
`payments made by Activision relating to these
`IPRs.
` But of course the RPI standard is
`much more -- is much broader than cost and
`control. And so Bungie should be producing a
`very exhaustive list of documents and
`information, we would think names of people
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`that Mr. Rosato spoke to before he made
`representations that Bungie was a sole RPI.
` And so, again, if I can perhaps
`summarize my points here, I would simply say we
`think it's Bungie's burden to come forward and
`show good cause why they couldn't have produced
`the evidence they need to produce in order to
`establish RPI in this case.
` But if they do, again, through Your
`Honors' discretion, satisfy that good cause,
`then that opens up to what we believe would be
`a very broad scope of discovery in this case.
` ADMINISTRATIVE PATENT JUDGE: That's
`an interesting position. Some might say
`Applications in Internet Time v. RPX made it
`easier to prove RPI, or the flip side, made it
`harder to disprove it.
` So would Patent Owner really need to
`get deep into the weeds, or would that mean you
`would get less discovery?
` MR. HELGE: Well, Your Honor, I
`think, again, I would look to the routine
`discovery regulation, which does actually place
`a burden on Bungie to produce relevant
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`information that may be inconsistent with the
`position they're taking.
` And so if they're taking the
`position -- for example, if they're taking the
`position that Bungie acted alone and Activision
`never conveyed this letter identifying Destiny
`as a potential product, then any -- you know,
`for example, I think that that opens the door,
`and it should open the door, to Worlds to find
`out in fact whether anybody at Bungie did know
`about this letter.
` You know, we know in the development
`agreement that there's a requirement to notify
`when there's a demand for indemnification.
` Were there phone calls? Were there
`phone calls between counsel?
` And so, Your Honor, I recognize what
`you're saying about perhaps additional
`discovery maybe being limited. But I think
`routine discovery is extremely broad, and I
`think Applications in Internet Time opens that
`very, very, very far.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` So let me make sure I understand
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`what you're saying here, at least back on the
`briefing.
` Patent Owner, if I'm not mistaken,
`believes we should not bifurcate the discovery
`and Petitioner should go first. Correct?
` MR. HELGE: That's correct, Your
`Honor.
` And I think there's one other point
`that should probably be made about this, and
`that's the briefing.
` I know that the SOP 9 does say that
`there is a question of whether additional
`briefings should be required.
` Now, we have made some of these
`points in our prior briefing on the RPI. And I
`think at this point, given where we stand and
`given Applications in Internet Time, I think
`the Board would be equally justified in taking
`a look at the evidence, and if Bungie can't
`come forward with the good cause to open the
`record, the Board would be justified in
`terminating the proceeding sua sponte without
`even issuing a final written decision.
` And for authority to that, I would
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`look to CBM 2015-00145, in which the Board
`decided that it no longer had jurisdiction
`under the CBM statute and terminated the case
`entirely without issuing a final written
`decision.
` ADMINISTRATIVE PATENT JUDGE: Okay.
`That's an interesting proposal.
` Mr. Rosato, back to you.
` And I would operate under the
`assumption we're not going to bifurcate the
`briefing on this.
` MR. ROSATO: Okay. So if I may,
`Your Honor -- and I appreciate that comment.
`Just for sake of completing the discussion, I
`would point to the Court's decision at Page 20.
` I mean, there are a couple
`provisions that were pointed to in the decision
`that's probably the most relevant on this
`point, where the Court states: "On remand, the
`Board should first address whether Worlds is
`estopped from arguing the real
`party-in-interest issue. The Board should
`thoroughly consider the posture of the related
`proceedings, as well as any relevant exceptions
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`to collateral estoppel. If the Board
`determines that collateral estoppel does not
`apply, the Board should then reevaluate the
`merits of the real party-in-interest issue."
` We all have the decision. We can
`all read it. I do think it speaks for itself.
`But just wanted to point that out.
` The other point in the decision
`that's worth noting is at Page 6, where the
`Court notes that: "Worlds has not sought
`review of the Board's order denying Worlds'
`motion for discovery on this issue."
` So that's going to be relevant to
`Mr. Helge's comments, or at least some of them,
`regarding the issue of additional discovery.
` On the standard that -- so turning
`to the RPI issue, as far as the standard goes
`on RPI, Your Honor makes an interesting
`observation on the standard in the Applications
`in Internet Time case.
` I would say that the IPR standard
`has always been the same. It's reflected in
`the Trial Practice Guide and numerous Federal
`Circuit decisions, including Applications in
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`Internet Time, and that is that the RPI
`analysis, it requires a flexible approach that
`takes into account both the equitable and
`practical considerations. And -- but the
`ultimate question is whether some other party
`other than the Petitioner is the party at whose
`behest the petition has been filed.
` Again, those words, that verbiage,
`is found the Trial Practice Guide. It's
`recited in the Court's decision in this case.
`It's recited in the Applications in Internet
`Time v. RPX case. It's recited in the Wi-Fi
`One case. That is the standard. And I would
`say we should all be clear on that.
` As to the issue on remand for RPI,
`the issue, from our estimation, seems to be one
`of clarification as to the burden framework
`that the Board had used in assessing the
`evidence in the RPI issue. And that's
`reflected in the Court's decision in a number
`of instances where the Court noted that they
`were unable to discern whether the Board had
`improperly placed the burden on Worlds. So
`this seems to be an issue of clarification as
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`to where the burden was placed.
` So where does that -- where does
`that leave us on briefing? Again, if the RPI
`issue is reached, then -- well, I guess I would
`say before I move to that, get back to the
`Court's instruction on remand on the RPI issue
`and their basis for vacating the Board's
`decision, the basis being they were unable to
`discern where the burden had been placed.
` Now, our view of the Board's
`decisions, having read them, having been
`present in the proceedings themselves, our
`understanding was the Board did in fact look at
`the equitable and practical considerations. It
`weighed the evidence, and it ruled in Bungie's
`favor. In other words, the Board did not
`improperly shift the burden, as was the Court's
`potential concern that they were ultimately
`unable to determine.
` Obviously we can't speak for the
`Board, but that is the correct analysis, and
`the Board's decision was the correct outcome.
` And as far as the briefing schedule
`itself, I guess there's some agreement between
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`the parties that additional briefing would be
`in order. Under these circumstances, it would
`make sense on this issue, again, if it's
`reached. Certainly, even if it's reached on a
`simultaneous briefing schedule, the briefings
`should -- there should be separate briefs on
`the issues.
` But on the IPR issue, we -- our
`position is that there should be simultaneous
`opening briefs followed by simultaneous filing
`of opposition briefs.
` ADMINISTRATIVE PATENT JUDGE: When
`you say "simultaneous," you mean both parties
`file at the same time?
` MR. ROSATO: Yes, Your Honor. I
`think that makes sense, rather than, you know,
`in taking -- trying to take into account
`logistics and efficiency concerns.
` So if both parties are
`simultaneously filing on the same day an
`opening brief, I'll call it, and then sometime
`later an opposition brief, that would seem to
`streamline the briefing schedule and allow both
`parties to weigh in, both in the first instance
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`and in response to the other party's brief,
`without dragging out the proceeding with
`multiple back and forth briefing.
` I do want to address the evidence
`issue, Your Honor.
` ADMINISTRATIVE PATENT JUDGE: Well,
`before you move on, let's stay on the briefing
`for a moment.
` MR. ROSATO: Mm-hmm.
` ADMINISTRATIVE PATENT JUDGE: Not to
`speak for Mr. Helge, but I would guess he's
`going to say, Petitioner has the burden on all
`these issues and should go first, and it should
`not be simultaneous briefing.
` What's your response to that?
` MR. ROSATO: Well, on the burden
`issue, I think the Court was clear on that
`issue in terms of how that's addressed in
`briefing on remand.
` I don't believe, given the remand
`circumstances or situation, that allowing
`simultaneous briefing in the manner I suggested
`in any way reflects on the burden. Right? The
`burden that's in play is going to be reflected
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`in how the Board evaluates the evidence, not
`necessarily the timing of the briefing.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` Mr. Helge, you want to dive in
`briefly on the briefing?
` MR. HELGE: Yes, Your Honor. Thank
`you.
` I think Your Honor is correct that I
`don't understand why Worlds would be required
`to file the opening brief. I think the Board
`would gain much more benefit from seeing
`Bungie's theories.
` You know, I think the Federal
`Circuit made a very smart point in their
`decision where they say that Bungie dedicated
`only two pages in its responsive brief to deal
`with the collateral estoppel issue.
` Now, in truth, of course, Worlds
`only dedicated about two pages as well. I
`think the record speaks for itself on that
`point.
` But what I would say is perhaps more
`pointed here is that these issues have not been
`fleshed out. And in fact, you know, we're
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`familiar with the solicitor's office's view.
`There has been a brief filed with the Federal
`Circuit where the solicitor's office has taken
`a very strong view on the issue of collateral
`estoppel, saying that it simply doesn't apply
`between IPRs.
` And so obviously we also have the
`Federal Circuit saying that they -- in their
`view, different IPRs could easily, and probably
`would, have different IPR analysis, and so it's
`a different issue.
` In view of statements like those and
`positions like those, we think it would be much
`more helpful for the Board to get Bungie's full
`position on both collateral estoppel and RPI,
`and then Worlds can address those theories
`without, I think, the parties sort of crossing
`in the night with the simultaneous briefs.
` MR. ROSATO: Yeah. Your Honor, I
`might be able to short-circuit this
`conversation, or at least on this issue.
` We're not wedded to what I proposed.
`If the counterproposal is Bungie file on each
`separate issue an opening brief, followed by an
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