Case: 20-1481 Document: 12 Page: 1 Filed: 02/11/2022
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`INTUITIVE SURGICAL, INC.,
`Appellant
`
`v.
`
`ETHICON LLC,
`Appellee
`
`ANDREW HIRSHFELD, PERFORMING THE
`FUNCTIONS AND DUTIES OF THE UNDER
`SECRETARY OF COMMERCE FOR
`INTELLECTUAL PROPERTY AND DIRECTOR OF
`THE UNITED STATES PATENT AND TRADEMARK
`OFFICE,
`Intervenor
`______________________
`
`2020-1481
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2018-
`01248.
`
`______________________
`
`Decided: February 11, 2022
`______________________
`
`STEVEN KATZ, Fish & Richardson P.C., Boston, MA, ar-
`gued for appellant. Also represented by RYAN PATRICK
`O'CONNOR, JOHN C. PHILLIPS, San Diego, CA.
`
`
`

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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
`
` ANISH R. DESAI, Weil, Gotshal & Manges LLP, New
`York, NY, argued for appellee. Also represented by
`ELIZABETH WEISWASSER; PRIYATA PATEL, CHRISTOPHER
`PEPE, Washington, DC.
`
` SARAH E. CRAVEN, Office of the Solicitor, United States
`Patent and Trademark Office, Alexandria, VA, argued for
`intervenor. Also represented by THOMAS W. KRAUSE,
`FARHEENA YASMEEN RASHEED, MOLLY R. SILFEN.
` ______________________
`
`Before O’MALLEY, CLEVENGER, and STOLL, Circuit Judges.
`O’MALLEY, Circuit Judge.
`Intuitive Surgical, Inc. (“Intuitive”) appeals from a fi-
`nal written decision of the Patent Trial and Appeal Board
`(“Board”) upholding the patentability of claims 24–26 of
`U.S. Patent No. 8,479,969. See Intuitive Surgical, Inc. v.
`Ethicon LLC, No. IPR2018-01248, 2020 WL 594140
`(P.T.A.B. Feb. 6, 2020).
`The threshold question is whether Intuitive is author-
`ized by statute to pursue this appeal. That question turns
`on whether the Board erred in finding Intuitive estopped
`from maintaining this inter partes review (“IPR”) proceed-
`ing and terminating Intuitive as a party under 35 U.S.C.
`§ 315(e)(1). Id. at *4. We hold that the Board did not err
`and, thus, dismiss Intuitive’s appeal. Accordingly, we do
`not reach the merits of the Board’s final written decision
`upholding the patentability of claims 24–26 of the ’969 pa-
`tent.
`
`I. BACKGROUND
`The ’969 patent is entitled “Drive Interface for Opera-
`bly Coupling a Manipulatable Surgical Tool to a Robot.” It
`relates to a robotically controlled endoscopic surgical in-
`strument, which is a commonly used tool in minimally in-
`vasive surgery procedures.
`
`

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`Case: 20-1481 Document: 12 Page: 3 Filed: 02/11/2022
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`3
`
`On June 14, 2018, Intuitive filed three petitions—
`IPR2018-01247 (“the Timm/Anderson IPR”), IPR2018-
`01248 (“the Prisco/Cooper IPR”), and IPR2018-01254 (“the
`Giordano/Wallace IPR”)—to challenge the patentability of
`certain claims of the ’969 patent. All three IPRs challenged
`the patentability of claim 24 but relied on different prior
`art references in doing so. The Board instituted the
`Timm/Anderson and Giordano/Wallace IPRs in January
`2019, then instituted the Prisco/Cooper IPR the following
`month.
`In the Timm/Anderson IPR, Intuitive argued that
`claim 24 would have been obvious over U.S. Patent
`No. 6,783,524
`(“Anderson”)
`in view of U.S. Patent
`No. 7,510,107 (“Timm”).1 Intuitive also argued that claims
`25 and 26 would have been obvious over Anderson and
`Timm, in further view of U.S. Patent No. 6,699,235 (“Wal-
`lace”).2 In the Giordano/Wallace IPR, Intuitive argued that
`claim 24 would have been obvious over U.S. Patent Appli-
`cation Publication No. 2008/0167672 (“Giordano”) in view
`of Wallace.3 On January 13, 2020, the Board issued final
`
`
`1 Anderson, entitled “Robotic Surgical tool with Ul-
`trasound Cauterizing and Cutting Instrument,” describes
`a robotic surgical tool with an end effector that includes an
`ultrasound probe tip for cutting and cauterizing tissue.
`Timm, entitled “Cable Driven Surgical Stapling and Cut-
`ting Instrument with Apparatus for Preventing Inadvert-
`ent Cable Disengagement,” describes a handheld surgical
`stapler with active and passive articulation joints.
`2 Wallace, entitled “Platform Link Wrist Mecha-
`nism,” claims a robotically controlled surgical stapler and
`discloses the same robotic elements and similar non-robotic
`elements as the ’969 patent.
`3 Giordano, entitled “Surgical Instrument with
`Wireless Communication Between Control Unit and Re-
`mote Sensor,” discloses an articulation pivot and an
`
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`in both the Timm/Anderson and
`written decisions
`Giordano/Wallace IPRs, upholding the patentability of
`claim 24 in the face of the prior art cited there.4 The
`Timm/Anderson IPR also upheld the patentability of
`claims 25 and 26.
`In the Prisco/Cooper IPR, Intuitive argued that claims
`24–26 are anticipated by U.S. Patent No. 8,545,515
`(“Prisco”).5 The Prisco/Cooper IPR remained ongoing as of
`the January 13, 2020, final written decisions in the
`Timm/Anderson and Giordano/Wallace IPRs. On January
`21, 2020, Ethicon filed a motion to terminate Intuitive as a
`party to the Prisco/Cooper IPR, arguing that Intuitive was
`estopped from proceeding with that IPR under 35 U.S.C.
`§ 315(e)(1) by virtue of the January 13, 2020, decisions in
`the companion IPRs. On February 6, 2020, the Board is-
`sued a final written decision concurrently terminating In-
`tuitive as a petitioner to the Prisco/Cooper IPR pursuant to
`§ 315(e)(1) and upholding the patentability of claims 24–26
`on the merits. Specifically, the Board concluded that
`§ 315(e)(1) estopped Intuitive from maintaining the
`Prisco/Cooper IPR after final written decisions on the pa-
`tentability of claims 24–26 were issued in the other pro-
`ceedings. Among other things, the Board concluded that
`§ 315(e)(1) did not preclude estoppel from applying where
`simultaneous petitions were filed by the same petitioner on
`the same claim.
`
`
`articulation control, which allow the surgical tool to bend
`relative to the shaft.
`4
`In a companion opinion issued contemporaneously
`with this opinion on this same date, we affirm the Board’s
`decisions in both of those IPRs.
`5 Prisco, entitled “Curved Cannula Surgical Sys-
`tem,” claims flexible endoscopic surgery instruments that
`extend into the surgical site through a curved cannula.
`
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`Intuitive timely appeals to this court.
`II. DISCUSSION
`Only a party to an IPR may appeal a Board’s final writ-
`ten decision. See 35 U.S.C. § 141(c) (“A party to an inter
`partes review . . . who is dissatisfied with the final written
`decision . . . may appeal.”). Section 319 of Title 35 repeats
`that limitation. And 28 U.S.C. § 1295(a)(4)(A) makes clear
`that we may review a Board’s decision only “at the instance
`of a party.” Despite this limitation, Intuitive argues it may
`pursue an appeal from the Board’s patentability determi-
`nation in this IPR. It bases this assertion on its claim that
`the Board misinterpreted 35 U.S.C. § 315(e)(1) when it con-
`cluded Intuitive was estopped from maintaining the
`Prisco/Cooper IPR. It argues that § 315(e)(1) estoppel
`should not apply to simultaneously filed petitions. Intui-
`tive argues, moreover, that it may appeal the merits of the
`Board’s final written decision on the patentability of claims
`24–26 because, even if the Board’s estoppel decision is not
`erroneous, Intuitive was once “a party to an inter partes
`review” and is dissatisfied with the Board’s final decision
`within the meaning of § 319. As explained in sections B
`and C below, we find Intuitive’s arguments unpersuasive.
`A.
`Neither the parties nor the U.S. Patent and Trademark
`Office (“PTO”) dispute our jurisdiction to review the
`Board’s estoppel decision. Section 1295(a)(4)(A) of Title 28
`provides us with jurisdiction over “an appeal from a deci-
`sion of . . . the Patent Trial and Appeal Board . . . with re-
`spect to a[n] . . . inter partes review under title 35.” We
`have held that the plain language of § 1295(a)(4)(A) per-
`mits appeal where the adverse judgment is a “decision of
`the Board . . . ‘with respect to’ an inter partes review pro-
`ceeding . . . [and] also final, as the judgment terminate[s]
`the IPR proceeding” with respect to a party. Arthrex, Inc.
`v. Smith & Nephew, Inc., 880 F.3d 1345, 1348 (Fed. Cir.
`2018). A decision is considered final “when it terminates
`
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`the litigation between the parties . . . and leaves nothing to
`be done but to enforce by execution what has been deter-
`mined.” St. Louis, I.M. & S. Ry. Co. v. S. Express Co., 108
`U.S. 24, 28–29 (1883).
` In the proceedings here,
`§ 1295(a)(4)(A) permits us to review the Board’s estoppel
`decision because the Board’s decision to terminate Intui-
`tive as a party to the Prisco/Cooper IPR is a “decision” of
`the Board “with respect to” an IPR that is also “final” in
`terminating the proceeding with respect to Intuitive.
`Though we may not review Board decisions reconsider-
`ing and terminating an institution decision, we are not pre-
`cluded by the § 314(d) statutory appeal bar from reviewing
`the Board’s § 315(e)(1) estoppel decision.
` Subsec-
`tion 314(d) poses no barrier to review of Board decisions
`“separate and subsequent . . . to the institution decision.”
`Facebook, Inc. v. Windy City Innovations, LLC, 973 F.3d
`1321, 1332 (Fed. Cir. 2020) (holding that Board joinder de-
`cisions are reviewable because they concern the “manner
`in which the already-instituted IPR proceeded”); see also
`Uniloc 2017 LLC v. Facebook, Inc., 989 F.3d 1018, 1027
`(Fed. Cir. 2021) (concluding that § 314(d) did not bar re-
`view of the Board’s denial of a request for estoppel where
`“the alleged estoppel-triggering event occurred after insti-
`tution”). In Uniloc, we reasoned that an estoppel-trigger-
`ing event subsequent to the institution decision “could not
`have affected the decision to initiate the administrative
`proceeding” and was thus not so “closely tied” to institution
`as to preclude judicial review under § 314(d). 989 F.3d at
`1026. Here, too, any purported estoppel-triggering event—
`specifically,
`issuance of
`the Giordano/Wallace and
`Timm/Anderson final written decisions—occurred long af-
`ter the Board’s decision to institute the Prisco/Cooper IPR.
`Accordingly, this separate and subsequent event, which
`had the effect of terminating Intuitive as a party but did
`not constitute a reconsideration of the decision to institute
`the IPR, does not prevent our review of the Board’s appli-
`cation of § 315(e)(1).
`
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`B.
`We now consider the merits of Intuitive’s challenge to
`the Board’s § 315(e)(1) determination to terminate Intui-
`tive as a party to the Prisco/Cooper IPR. Subsec-
`tion 315(e)(1) states that “[t]he petitioner in an inter partes
`review of a claim in a patent under this chapter that results
`in a final written decision . . . may not request or maintain
`a proceeding before the Office with respect to that claim on
`any ground that the petitioner raised or reasonably could
`have raised during that inter partes review.” 35 U.S.C.
`§ 315(e)(1) (emphases added). Intuitive argues that the
`Board erred in its interpretation of § 315(e)(1). Statutory
`interpretation is a question of law that we review de novo.
`VirnetX Inc. v. Apple Inc., 931 F.3d 1363, 1369 (Fed. Cir.
`2019).
`Specifically, Intuitive alleges that the Board erred be-
`cause Intuitive could not “reasonably have raised” its
`grounds from the Prisco/Cooper IPR in the simultaneously
`filed Timm/Anderson and Giordano/Wallace petitions. It
`argues that the 14,000-word limit imposed on petitions ne-
`cessitated three separate petitions to present all the prior-
`art combinations on which it wished to rely.6 Intuitive
`adds that it could not have later raised its grounds from
`the Prisco/Cooper IPR because new grounds cannot be
`added after institution. Intuitive also argues that allowing
`the continuation of the simultaneously submitted petitions
`is not incompatible with the purpose of § 315(e)(1)—which
`aims to obviate abusive IPR conduct—because simultane-
`ous filings are not “as abusive” as successive filings. Ap-
`pellant’s Br. 75.
`We are unpersuaded. The Board did not err in finding
`Intuitive estopped from maintaining the Prisco/Cooper
`
`
`6 37 C.F.R. § 42.24(a)(i) limits petitions requesting
`inter partes review to 14,000 words.
`
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`IPR. After reviewing the statutory text, “considered along-
`side its context, purpose, and history,” see Gundy v. United
`States, 139 S. Ct. 29 2116, 2123, reh’g denied, 140 S. Ct.
`579 (2019), we hold that § 315(e)(1) estops a petitioner as
`to invalidity grounds for an asserted claim that it failed to
`raise but “reasonably could have raised” in an earlier de-
`cided IPR, regardless of whether the petitions were simul-
`taneously filed and regardless of the reasons for their
`separate filing.
`The plain language of § 315(e)(1) is clear that estoppel
`is triggered when an IPR proceeding results in a final writ-
`ten decision, compelling the conclusion that Intuitive was
`estopped as
`to
`the Prisco/Cooper
`IPR once
`the
`Giordano/Wallace and Timm/Anderson IPRs concluded
`with final written decisions. We cannot ignore this statu-
`tory language simply because the petitions were filed on
`the same day and were instituted within days of each other.
`It is undisputed that all three IPRs challenged the
`same claim of the ’969 patent. It is also undisputed that
`Intuitive filed all three petitions on the same day. It fol-
`lows, therefore, that Intuitive actually knew of the Prisco
`prior art at the time it filed the other two petitions and
`knew which claims it wanted to challenge based on that
`art. Certainly, Intuitive reasonably could have raised its
`grounds from the Prisco/Cooper IPR in either the
`Giordano/Wallace or Timm/Anderson IPRs. Yet, it did not.
`Intuitive concedes, as it must, that it knew of the pre-
`cise grounds it wanted to assert in the last of the three IPRs
`to be instituted when it filed and pursued its first two peti-
`tions all the way to final written decisions. It asserts, how-
`ever, that it should be relieved of the estoppel it would
`otherwise face under § 315(e)(1) because it could not “rea-
`sonably” have asserted the claims in the Prisco/Cooper IPR
`any sooner. This is so, according to Intuitive, for two rea-
`sons: (1) the Board’s 14,000 word limit on petitions made it
`impossible to raise all grounds in the first two IPRs and
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`(2) because the Board prohibits amending petitions after
`institution, it could not have asserted the Prisco/Cooper
`grounds “during” the IPR within the meaning of
`§ 315(e)(1), as defined by our decision in Shaw Industries
`Group, Inc. v. Automated Creel Systems, Inc., 817 F.3d
`1293 (Fed. Cir. 2016). We are unpersuaded.
`We reject the proposition that the three petitions could
`not have been more concisely written to fit in only two pe-
`titions. First, as the master of its own petition, Intuitive
`could have made its challenges more pointed and specific
`so as to fit all of its grounds in two petitions satisfying the
`word limits. Second, Intuitive had alternative avenues
`that would have allowed it to file three full-length petitions
`while avoiding the consequences of § 315(e)(1), despite the
`word limit. A petitioner may seek to consolidate multiple
`proceedings challenging the same patent—whether filed on
`the same day or not—if the Board institutes review on mul-
`tiple petitions by a single petitioner. See 35 U.S.C. § 315(d)
`(permitting the Director to consolidate separate IPRs chal-
`lenging the same patent). A petitioner may also file multi-
`ple petitions where each petition focuses on a separate,
`manageable subset of the claims to be challenged—as op-
`posed to subsets of grounds—as § 315(e)(1) estoppel applies
`on a claim-by-claim basis. See 35 U.S.C. § 315(e)(1). Intu-
`itive failed to take advantage of either of these statutory
`routes to avoid estoppel. It did not seek to consolidate the
`three proceedings; it did not divide its petitions according
`to subsets of claims. And, while it did request a consoli-
`dated hearing (a request the Board granted), it did not ask
`that the cases proceed to final written decision on the same
`timetable. Because the Prisco/Cooper IPR was accorded a
`later filing date than the first two IPRs, and the Board sub-
`sequently issued separate scheduling orders with different
`timelines for each IPR, Intuitive knew that final decision
`in the Prisco/Cooper IPR would most likely post-date the
`final written decision for the first two IPRs. Intuitive’s
`word-limit grievance, therefore, is largely a problem of its
`
`

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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`own making.7 With these choices left unpursued, we can-
`not conclude that Intuitive could not “reasonably have
`raised” its grounds from the Prisco/Cooper IPR in the other
`proceedings.
`Intuitive’s reliance on Shaw is similarly unpersuasive.
`As an initial matter, we find Intuitive’s one-sentence cita-
`tion to Shaw inadequate to preserve meaningful reliance
`on that decision. Even if the argument were not forfeited,
`moreover, it is easily rejected on the merits. To be sure,
`Shaw stood for the proposition that estoppel does not bar
`challenges to grounds asserted in a petition but on which
`the Board refused institution. Shaw did not, however, di-
`rectly speak to the impact of estoppel on grounds never
`raised in petitions. Several district courts attempted to de-
`termine Shaw’s impact on such grounds and split on the
`question. Compare Cobalt Boats, LLC v. Sea Ray Boats,
`Inc., No. 2:15-cv-21, 2017 WL 2605977, at *2–3 (E.D. Va.
`June 5, 2017) (determining that estoppel applies to
`grounds not included in a petition that the petitioner rea-
`sonably could have raised), and SiOnyx, LLC v. Hamama-
`tsu Photonics K.K., 330 F. Supp. 3d 574, 602 (D. Mass.
`2018) (explaining that “reasonably could have raised” in-
`cludes “any patent or printed publication that a petitioner
`actually knew about or that ‘a skilled searcher conducting
`a diligent search reasonably could have been expected to
`discover’”), with Koninklijke Philips N.V. v. Wangs All.
`Corp., No. 14:cv-12298, 2018 WL 283893, at *4 (D. Mass.
`Jan. 2, 2018) (“It would seem, then, that the phrase ‘inter
`partes review’ . . . refers only to the period of time after re-
`view is instituted.”), and Lighting Sci. Grp. Corp. v. Shen-
`zhen Jiawei Photovoltaic Lighting Co., No. 16-cv-3886-
`
`
`It is notable that, by the end of the proceedings, the
`7
`focus of the three IPRs boiled down to a challenge to the
`independent claim and only three combinations of prior
`art.
`
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`BLF, 2017 WL 2633131, at *5 (N.D. Cal. June 19, 2017)
`(determining that Verinata Health, Inc. v. Ariosa Diagnos-
`tics, Inc., No. 12-cv-05501- SI, 2017 WL 235048 (N.D. Cal.
`Jan 19, 2017) interprets § 315(e) to apply only to grounds
`raised in the IPR petition and instituted by the Board).
`Recognizing this split among the lower courts, and the
`need for clarity on the question, we recently took the oppor-
`tunity to make clear that, to the extent Shaw held that es-
`toppel can only apply to instituted grounds for a given
`claim because those grounds were the only ones raised
`“during” the IPR, and not to grounds for that same claim
`that a petitioner could have “reasonably raised” but did
`not, that aspect of Shaw has been abrogated by subsequent
`Supreme Court case law. Cal. Inst. of Tech. v. Broadcom
`Ltd., No. 2020-2222, 2021-1527, 2022 WL 333669, at *9–11
`(Fed. Cir. Feb. 4, 2022) (citing SAS Inst., Inc. v. Iancu, 138
`S. Ct. 1348 (2018)) (overruling Shaw and clarifying “that
`estoppel applies not just to claims and grounds asserted in
`the petition and instituted for consideration by the Board,
`but to all claims and grounds not in the IPR but which rea-
`sonably could have been included in the petition”).
`Contrary to Intuitive’s arguments, moreover, applying
`estoppel in these circumstances is not only consistent with
`SAS, but it also furthers the legislative purposes of
`§ 315(e)(1). Subsection 315(e)(1) has been understood to
`discourage “abusive serial challenges to patents” and pro-
`vide “faster, less costly alternatives to civil litigation to
`challenge patents.” 157 Cong. Rec. S936, S952 (daily ed.
`Feb. 28, 2011) (statement of Sen. Grassley). Here, Intuitive
`has already twice failed to invalidate claim 24 of the ’969
`patent in the Giordano/Wallace and Timm/Anderson IPRs
`and is not entitled to another bite at the apple via the
`Prisco/Cooper IPR.
`
`C.
`Intuitive finally asserts that, even if the Board was cor-
`rect to conclude that Intuitive was estopped from pursuing
`
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`INTUITIVE SURGICAL, INC. v. ETHICON LLC
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`the Prisco/Cooper IPR, Intuitive still has the right to ap-
`peal the Board’s merits determination because it was once
`a party to that IPR. That contention reflects a misunder-
`standing of both § 315(e)(1) and § 319.
`Subsection 315(e)(1) expressly states that, once the
`Board issues a final written decision addressing the pa-
`tentability of the claims of a patent, “[t]he petitioner . . .
`may not request or maintain a proceeding” challenging
`those same claims before the Board on grounds that it
`“raised or reasonably could have raised during that inter
`partes review.” That means that, regardless of when the
`Board memorializes its conclusion that § 315(e)(1) bars a
`proceeding, the estoppel is effective as of the issuance of
`the prior written decision. To read § 315(e)(1) otherwise
`would eviscerate the “maintain a proceeding” language in
`the statute.
`The question here is whether Intuitive—which was no
`longer a party to the Prisco/Cooper IPR once the Board is-
`sued the Giordano/Wallace and Timm/Anderson final writ-
`ten decisions—has satisfied the statutory requirements
`attendant to the right to appeal from the Prisco/Cooper
`merits determination. Sections 141(c) and 319 of Title 35
`set forth who is statutorily authorized to appeal a final
`written decision of the Board. As noted above, § 141(c)
`states that only a “party to an inter partes review” has the
`right to appeal a final written decision of the Board. Simi-
`larly, § 319 states that only a “party dissatisfied with the
`final written decision” of the Board may appeal. Thus, only
`parties to an IPR fall within the zone of interests protected
`by the law invoked—i.e., the right to appeal a final written
`decision of the Board. Mylan Pharms. Inc. v. Rsch. Corp.
`Techs., Inc., 914 F.3d 1366, 1373 (Fed. Cir. 2019) (statutory
`right to appeal limited to those Congress authorized to take
`an appeal). Once § 315(e)(1) prohibited Intuitive from
`maintaining this IPR, Intuitive ceased to be a party under
`§ 141 and § 319, placing it outside the zone of interest es-
`tablished by the congressionally authorized right to appeal
`
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`13
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`in those provisions. Id. (citing Lexmark Int’l, Inc. v. Static
`Control Comps., Inc., 572 U.S. 118, 129 (2014)).8
`III. CONCLUSION
`We have considered Intuitive’s remaining arguments
`and find them unpersuasive. For the reasons discussed
`above, we affirm the Board’s conclusion that Intuitive was
`estopped from maintaining the Prisco/Cooper IPR once the
`final written decisions
`in the Timm/Anderson and
`Giordano/Wallace IPRs issued. Because Intuitive may not
`challenge the Board’s final written decision in the IPR at
`issue here as a non-party, we have no jurisdiction to review
`the merits of the Board’s decision. Accordingly, we dismiss
`Intuitive’s appeal.
`
`DISMISSED
`
`
`Intuitive also argues it may pursue this appeal be-
`8
`cause it satisfies the minimum standing requirements of
`Article III of the U.S. Constitution. But that contention,
`even if true, confuses constitutional standing concepts with
`the question of whether one satisfies the statutory require-
`ments attendant to the right to appeal.
`
`