Case: 17-1870 Document: 62 Page: 1 Filed: 05/21/2018
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`Appeal Nos. 2017-1870, -1871
`________________________________________________________________
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`__________________________________
`POLARIS INDUSTRIES INC.,
`Appellant,
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`v.
`ARCTIC CAT, INC.,
`Appellee,
`ANDREI IANCU, Under Secretary of Commerce for Intellectual Property and Director
`of the United States Patent and Trademark Office,
`Intervenor.
`_____________________________________________________________
`Appeals from the United States Patent and Trademark Office,
`Patent Trial and Appeal Board in Nos. IPR2015-01781, IPR2015-01783.
`_____________________________________________________________
`RESPONSE FOR INTERVENOR—DIRECTOR OF THE
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________________________________________________
`
`NATHAN K. KELLEY
` Solicitor
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`THOMAS W. KRAUSE
`Deputy Solicitor
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`FARHEENA Y. RASHEED
`Senior Counsel for Patent Law and Litigation
`Office of the Solicitor – Mail Stop 8
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`571-272-9035
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`United States Patent and Trademark Office
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`May 21, 2018
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`Case: 17-1870 Document: 62 Page: 2 Filed: 05/21/2018
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION AND PROCEDURAL HISTORY ....................................... 1
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`RELEVANT STATUTORY BACKGROUND AND
`INTERVENING CHANGE IN LAW .................................................................... 3
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`III. USPTO RESPONSE .................................................................................................... 5
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`Either Party Has the Right to Seek Remand to Resolve the
`Patentability of Non-Instituted Claims........................................................... 5 
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`By Not Preserving the Issue Before the Agency, Polaris has
`Forfeited Any Right to Relief Based on SAS .......................................... 7 
`IV.  CONCLUSION .............................................................................................. 10 
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`TABLE OF AUTHORITIES
`Cases Pages(s) 
`Cuozzo Speed Techs. v. Lee, 136 S. Ct. 2131 (2016) .......................................................... 3
`DBC, In re, 545 F.3d 1373 (Fed. Cir. 2008) .................................................................. 8
`Freytag v. C.I.R., 501 U.S. 868 (1991) ............................................................................ 8
`Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC,
` 138 S. Ct. 1365 (2018) ............................................................................................ 3
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`SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018) ................................................. passim
`Shaw Industries Group v. Automated Creel Systems,
` 817 F.3d 1293 (Fed. Cir. 2016) .............................................................................. 7
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`United States v. L.A. Tucker Truck Lines, 344 U.S. 33 (1952) .......................................... 8
`United States v. Olano, 507 U.S. 725 (1993) .................................................................... 8
`Woodford v. Ngo, 548 U.S. 81 (2006) .............................................................................. 7
`Yakus v. United States, 321 U.S. 414 (1944) ................................................................... 8
`Statutes
`28 U.S.C. § 2106 .......................................................................................................... 9
`35 U.S.C. § 311 ............................................................................................................ 3
`35 U.S.C. §§ 311-319 ................................................................................................... 3
`35 U.S.C. § 312 ............................................................................................................ 3
`35 U.S.C. § 312(a)(5) ................................................................................................... 3
`35 U.S.C. § 313 ............................................................................................................ 3
`35 U.S.C. § 314(a).……………………………………………………………............4
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`35 U.S.C. § 315(b) ....................................................................................................... 3
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`35 U.S.C. § 315(e)(1) ................................................................................................... 6
`35 U.S.C. § 315(e)(2) ...............................................................................................6, 7
`35 U.S.C. § 316(c) ........................................................................................................ 4
`35 U.S.C. § 316(e) ........................................................................................................ 4
`35 U.S.C. § 318(a) ........................................................................................................ 4
`35 U.S.C. § 318(b) ....................................................................................................... 4
`35 U.S.C. § 318(c) ........................................................................................................ 4
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`Regulations
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`37 C.F.R § 42.101(b).................................................................................................... 3
`37 C.F.R. § 42.108(a) ................................................................................................... 4
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`Other Authorities
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`16AA Fed. Prac. & Proc. Juris. § 3974.1 (4th ed.) ................................................................ 8
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`I.
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`INTRODUCTION AND PROCEDURAL HISTORY
`Arctic Cat, Inc. petitioned the USPTO to undertake two inter partes reviews—
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`(IPR2015-01781) and (IPR2015-01783)—of certain claims of Polaris Industries, Inc.’s
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`U.S. Patent No. 8,827,028 on various obviousness grounds. The patent relates to the
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`positioning of automotive components (such as four-wheel drive, rear-engine
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`placement, and a drive shaft located between the seats) in side-by-side all-terrain
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`vehicles (“ATVs”). In addition to involving the same patent, both inter partes reviews
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`involved primarily the same art, and substantially overlapping obviousness arguments
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`on the merits. In its preliminary responses in both reviews, Polaris argued against
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`institution of the challenged claims in Arctic Cat’s petition; it did not take a position
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`for or against the possibility of partial institution.
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`In its institution decisions, the Board found that a subset of the claims in each
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`review met the threshold for institution. In IPR2015-01781, the Board instituted
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`review on claims 88, 90-101, but declined to institute review on claims 24-36, 38, 41-
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`42, 45-46, and 89. Polaris’s Mot., Ex. A at 32-33. In IPR2015-01783, the Board
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`instituted review on claims 60-62, 64-69, 74-75, 78-86, but declined to institute review
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`on challenged claim 63. Polaris’s Mot., Ex. B, at 20-21. Subsequently though, in
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`response to Polaris’s motion for rehearing, in which Polaris argued that the Board
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`should have denied institution on claims 64, 74, and 75 for the same reasons that it
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`had denied institution on claim 63, the Board modified the institution decision to
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`remove claims 64, 74, and 75 from the trial. Polaris’s Mot., Ex. C at 3-4, Ex. D at 2-3.
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`During the trial, the parties’ papers focused primarily on substantive claim
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`construction and obviousness analyses related to the relative positioning of various
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`components of the claimed ATVs. Ultimately, the Board determined that all of the
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`claims on which the inter partes reviews were instituted were unpatentable as obvious
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`over the prior art. Polaris’s Mot., Ex. E at 62-63 (final written decision in IPR2015-
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`01781), Ex. F at 47 (final written decision in IPR2015-01783).
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`On appeal from the Board’s final written decisions, Polaris did not preserve the
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`SAS “partial institution” issue in its briefing to this Court. Instead, as it did before
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`the Board, Polaris focused its opening brief arguments on the prior art issues. With
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`respect to its appeal (2017-1871) from IPR2015-01783, Polaris additionally argued
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`that the reasoning behind the Board’s decision not to institute on the non-instituted
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`claims should have led the Board to find that other claims on which it did institute
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`review were patentable. See Polaris’s Op. Br. at 25-30.
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`Polaris has now moved to terminate this appeal and have this Court remand it
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`to the Board for consideration of the patentability of the non-instituted claims,
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`including the claims that Polaris specifically asked to be excluded from IPR2015-
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`01783 in its rehearing request. Polaris’s Mot. at 5-9. On May 14, 2018, this Court
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`ordered the parties to submit briefing addressing the following two questions:
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`(a) whether a patent owner (as opposed to a petitioner) has the right
`to seek a remand to the Board to resolve the patentability of claims
`challenged in an IPR petition, but for which review was not instituted; and
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`(b) whether such a right must have been preserved below and/or
`in the briefing before this court.
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`Order in Appeal Nos. 17-1870 & 1871 (May 14, 2018) (Docket No. 53), at 2. In the
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`same Order, the Court invited the USPTO Director to address these same questions.
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`Id.
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`II. RELEVANT STATUTORY BACKGROUND AND INTERVENING
`CHANGE IN LAW
`The America Invents Act of 2011 established new administrative processes
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`called inter partes reviews “that authorize the [US]PTO to reconsider and cancel
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`patent claims that were wrongly issued.” Oil States Energy Servs., LLC v. Greene’s Energy
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`Group, LLC, 138 S. Ct. 1365, 1370 (2018); see 35 U.S.C. §§ 311-319; see generally Cuozzo
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`Speed Techs. v. Lee, 136 S. Ct. 2131 (2016). Under the inter partes review scheme, any
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`individual other than the patent owner may file a petition for review of an issued
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`United States patent on the ground that, at the time the patent was issued, the
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`invention was not novel or was obvious in light of specified forms of prior art. 35
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`U.S.C. §§ 311, 312. A party who has been served with a complaint for infringement
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`has one year to petition the Board to institute such review of the patent in litigation.
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`See 35 U.S.C. § 315(b); 37 C.F.R § 42.101(b). The patent owner must be given a copy
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`of the petition, 35 U.S.C. § 312(a)(5), and has the option to file a preliminary
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`response, 35 U.S.C. § 313, but need not respond at all.
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`An inter partes review does not commence unless and until the Director of the
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`USPTO reviews the submissions and affirmatively decides to institute the review after
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`finding a reasonable likelihood that the petitioner can establish the unpatentability of
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`“at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a). If the
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`Director elects to institute a review, the Patent Trial and Appeal Board (PTAB or
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`Board) conducts the proceeding. See 35 U.S.C. § 316(c). The burden of showing the
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`unpatentability of every challenged claim is on the petitioner. 35 U.S.C. § 316(e). At
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`the conclusion of the proceedings, the Board issues a final written decision addressing
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`the patentability of the challenged claims. 35 U.S.C. § 318(a). After any appeals are
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`exhausted, the USPTO issues a “certificate” cancelling any claims deemed
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`unpatentable, confirming any claims deemed patentable, and “incorporating in the
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`patent by operation of the certificate any new or amended claim determined to be
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`patentable.” 35 U.S.C. § 318(b). New and amended claims are enforceable against
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`the public at large in the same manner as claims in reissued patents. See 35 U.S.C. §
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`318(c).
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`At the time of the relevant inter partes review proceedings here, the USPTO’s
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`implementing regulations gave the Director the authority to institute review as to
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`some, but not all, of the claims challenged or grounds raised in a petition. See 35
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`U.S.C. § 314(a); 37 C.F.R. § 42.108(a). The Supreme Court subsequently invalidated
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`this regulation, concluding that the statute requires the agency to institute review on
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`either all or none of the claims challenged in the petition. See SAS Institute v. Iancu,
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`138 S. Ct. 1348, 1355-1356 (2018). The majority stated: “The Director … is given
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`only the choice ‘whether’ to institute an inter partes review. That language indicates a
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`binary choice—either institute review or don’t. And by using the term ‘pursuant to,’
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`Congress told the Director what he must say yes or no to: an inter partes review that
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`proceeds ‘[i]n accordance with’ or ‘in conformance to’ the petition. … Nothing
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`suggests the Director enjoys a license to depart from the petition and institute a
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`different inter partes review of his own design.” Id. Following the Supreme Court’s
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`decision in SAS, henceforth, the Director will either grant or deny the petition in its
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`entirety.
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`The questions raised in this and other pending appeals in this Court go to
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`whether, in light of the Supreme Court’s ruling in SAS, this Court should remand
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`cases involving partial institution to the Board in order to permit the Board to reopen
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`the proceeding and ultimately issue a final written decision as to the non-instituted
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`claims. As discussed herein, as well as in the USPTO’s response to the Court’s order
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`in PGS Geophysical AS v. Iancu, Appeal Nos. 17-1582 & 16-2470, and BASF Corp. v.
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`Iancu, Appeal No. 17-1452, the USPTO believes that the determination to remand can
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`and should depend on whether the party requesting remand preserved its objection to
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`partial institution before the Board.
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`III. USPTO RESPONSE
` Either Party Has the Right to Seek Remand to Resolve the
`Patentability of Non-Instituted Claims
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`Our answer to the question of whether a patent owner has the right to seek
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`remand is “yes.” The patent owner (just like the petitioner) has the ability to rely on
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`SAS, if it has preserved the issue. In SAS, the Supreme Court held that the AIA does
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`not authorize the Director to institute review on a claim-by-claim basis; rather, the
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`scope of the instituted proceeding must match the scope of the petition. 138 S. Ct. at
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`1355. Under these circumstances, the patent owner, just like the petitioner, should be
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`allowed to seek remand to the Board for a final written decision on all the challenged
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`claims in the petition. And if the patent owner preserved the issue before the Board
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`and this Court, the USPTO would have no objection to a remand requested by the
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`patent owner.
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`While the petitioner gets to “define the contours of the proceeding” when
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`drafting its petition (SAS, 138 S. Ct. at 1355), the patent owner also has a strong
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`interest in the course of the proceedings, since the scope of the review will determine
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`the extent to which the petitioner is estopped from further challenging the claims that
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`were at issue in the review (see 35 U.S.C. § 315(e)(1)-(2) (providing rules of estoppel in
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`district court and at the USPTO for completed inter partes reviews for unpatentability
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`grounds on which the USPTO had instituted review)). Accordingly, fairness demands
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`that a patent owner who has preserved an objection to partial institution should be
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`able to obtain a remand, in order to obtain an adjudication on the complete set of
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`claims in the petition, and thereby gain the benefit of the estoppel provisions.
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`The USPTO notes that if a patent owner, having preserved the issue, files a
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`motion for remand for consideration by the Board of non-instituted claims, and the
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`petitioner successfully objects to such a remand, the petitioner may well be estopped
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`from further challenging the non-instituted claims. See 35 U.S.C. § 315(e)(2)
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`(providing that estoppel will apply to all grounds of unpatentability that a petitioner
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`“reasonably could have raised” in the proceeding). Thus, while the initial institution
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`decision may have effectively prevented the petitioner from raising certain challenges,
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`a willing patentee who had preserved the issue may be in a position to compel those
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`once-denied challenges to move forward post-SAS, undercutting the concerns raised
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`by this Court in its Shaw decision. See Shaw Indus. Grp., Inc. v. Automated Creel Sys., Inc.,
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`817 F.3d 1293, 1300 (Fed. Cir. 2016) (explaining that the plain language of the statute
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`prohibits estoppel where a denied ground of unpatentability never became part of the
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`proceeding).
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`By Not Preserving the Issue Before the Agency, Polaris has
`Forfeited Any Right to Relief Based on SAS
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`The USPTO’s answer to the second question – whether such a right must have
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`been preserved below and/or in the briefing before this Court – is that to avoid
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`forfeiture, the patentee must have preserved the issue both before the agency and
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`before this Court. Under general administrative law principles, a party may not
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`challenge an agency decision on a basis that was not presented to the agency in the
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`first instance. See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“As a general rule . . . courts
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`should not topple over administrative decisions unless the administrative body not
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`only has erred, but has erred against objection made at the time appropriate under its
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`practice.”) (quoting United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952)
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`(emphasis omitted)); In re DBC, 545 F.3d 1373, 1378 (Fed. Cir. 2008). Also, a court of
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`appeals is not required to address non-jurisdictional arguments that a party seeking
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`appellate review forfeits by leaving them unmentioned in its opening and reply briefs.
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`See, e.g., 16AA Fed. Prac. & Proc. Juris. § 3974.1 (4th ed.). Indeed, “‘[n]o procedural
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`principle is more familiar to this Court than that a constitutional right,’ or a right of
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`any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make
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`timely assertion of the right before a tribunal having jurisdiction to determine it.”’
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`United States v. Olano, 507 U.S. 725, 731 (1993) (quoting Yakus v. United States, 321 U.S.
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`414, 444 (1944)). Forfeiture is “not a mere technicality and is essential to the orderly
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`administration of justice.” Freytag v. C.I.R., 501 U.S. 868, 894–95 (1991).
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`Unlike the petitioner in SAS, Polaris did not raise the partial institution issue at
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`any of the junctures where it might have had opportunity to do so (request for
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`rehearing of the institution decision, patent owner response, oral argument, request
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`for rehearing after final written decision). In fact, Polaris filed a preliminary response
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`arguing against institution in both cases, and after institution in the IPR2015-01783
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`filed a rehearing request that sought to carve out additional claims from the trial.
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`Polaris’s current request that the Board be required to consider all of the claims is
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`inconsistent with the position it took (and the relief it obtained) in its request for
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`rehearing of the institution decision; having specifically argued for and obtained
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`partial institution before the Board, Polaris should not be heard to now argue against
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`it. The fact that Polaris did not raise this issue in its opening brief to this Court is an
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`additional, independent, basis for not granting its motion.
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`We acknowledge that this Court has the ability to remand a case if it decides
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`that doing so would be “just under the circumstances.” See 28 U.S.C. § 2106. But we
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`note that a court of appeals’ authority to order discretionary remands under § 2106
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`does not automatically mean that the court will or should allow a party to obtain a
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`redo whenever it fails to preserve an error that, with the benefit of hindsight, it wishes
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`it had preserved. In other words, § 2106 is not an exception to the rules of forfeiture,
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`but a recognition of the court’s traditional discretion over matters within its
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`jurisdiction. And that traditional discretion is guided by the rules already discussed
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`i.e., that courts do not overturn agency decisions except against an objection made at
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`the appropriate time under agency practice. Given Polaris’s failure to raise this issue
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`below – and indeed the fact that it advocated for the contrary result – we do not
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`believe justice requires a remand.
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`IV. CONCLUSION
`As discussed above, a patent owner as well as a petitioner should be able to
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`seek remand based on SAS, provided they preserved the issue before the USPTO.
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`Because Polaris failed to preserve the partial institution issue, this Court should deny
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`Polaris’s “Motion to Terminate Appeal and Remand in Light of SAS Institute v. Iancu.”
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`Dated: May 21, 2018
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`Respectfully submitted,
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`/s/ Farheena Y. Rasheed
` NATHAN K. KELLEY
` Solicitor
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` THOMAS W. KRAUSE
` Deputy Solicitor
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` FARHEENA Y. RASHEED
`Senior Counsel for Patent Law and Litigation
` Office of the Solicitor – Mail Stop 8
` U.S. Patent and Trademark Office
` P.O. Box 1450
` Alexandria, VA 22313-1450
` 571-272-9035
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 21, 2018 I electronically filed the foregoing
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`RESPONSE FOR INTERVENOR—DIRECTOR OF THE UNITED
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`STATES PATENT AND TRADEMARK OFFICE with the Court’s CM/ECF
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`filing system, which constitutes service up on all counsel of record, pursuant to Fed.
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`R. App. P. 25 (c) and Fed. Cir. R. 25(e).
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`/s/ Farheena Y. Rasheed
`Farheena Y. Rasheed
`Senior Counsel for Patent Law and Litigation
`Office of the Solicitor
`U.S. Patent and Trademark Office
`Mail Stop 8, P.O. Box 1450
`Alexandria, Virginia 22313
`(571) 272-9035
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`RULE 32(A)(7)(C) CERTIFICATE OF COMPLIANCE
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`The undersigned hereby certifies that the foregoing brief complies with the
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`type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B). The brief
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`contains 3014 words, excluding the parts of the brief exempted by Federal Rule of
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`Appellate Procedure 32(a)(7)(B)(iii) and Federal Circuit Rule 32(b).
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`This brief complies with the typeface requirements of the Federal Rule of
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`Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
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`Appellate Procedure 32(a)(6) because it has been prepared using Microsoft Word in a
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`proportionally spaced typeface using Microsoft Office 2010 program in Garamond 14
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`point.
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`Dated: May 21, 2018
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`/s/ Farheena Y. Rasheed
`Farheena Y. Rasheed
`Senior Counsel for Patent Law and Litigation
`Office of the Solicitor
`U.S. Patent and Trademark Office
`Mail Stop 8, P.O. Box 1450
`Alexandria, Virginia 22313
`(571) 272-9035
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`Polaris Ex. 2020
`1 Kingston v. Polaris, IPR2016-01622, Page 16 of 16
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