CASE NO. IPR 2019-00820
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`) )
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`APPLE INC.
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`VS.
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`) PATENT TRIAL AND APPEAL BOARD
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`MPH TECHNOLOGY'S OY )
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`)
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` ************************************************
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`TELEPHONIC HEARING
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`NOVEMBER 18, 2022
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`***********************************************
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`BE IT REMEMBERED THAT at 12:00 p.m., on
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`Friday, the 18th day of November 2022, the
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`above-entitled matter came on for hearing via telephone
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`and the following proceedings were reported by Janalyn
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`Elkins, Certified Shorthand Reporter.
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`Apple Inc. v. MPH Technologies Oy
`IPR2019-00820, Apple Exhibit 1024
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`) )
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`APPLE INC.
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`VS.
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`) PATENT TRIAL AND APPEAL BOARD
`
`MPH TECHNOLOGY'S OY )
`
`)
`
` ************************************************
`
`TELEPHONIC HEARING
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`NOVEMBER 18, 2022
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`***********************************************
`
`BE IT REMEMBERED THAT at 12:00 p.m., on
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`Friday, the 18th day of November 2022, the
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`above-entitled matter came on for hearing via telephone
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`and the following proceedings were reported by Janalyn
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`Elkins, Certified Shorthand Reporter.
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`Veritext Legal Solutions
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`Page 1
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`Apple Inc. v. MPH Technologies Oy
`IPR2019-00820, Apple Exhibit 1024
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` A P P E A R A N C E S .
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`F O R T H E P E T I T I O N E R :
` D A V I D O ' B R I E N
` H O N G S H I
` H A Y N E S & B O O N E , L L P
` 1 1 2 E . P e c a n S t r e e t , S u i t e 1 2 0 0
` S a n A n t o n i o , T e x a s 7 8 2 0 5
` D a v i d . O b r i e n @ h a y n e s b o o n e . c o m
` H o n g . s h i @ h a y n e s b o o n e . c o m
` ( 5 1 2 ) 8 6 7 - 8 4 4 0
`
`F O R T H E R E S P O N D E N T :
` J A M E S T . C A R M I C H A E L
` C A R M I C H A E L I P , P L L C
` 8 0 0 0 T o w e r s C r e s c e n t D r i v e , 1 3 t h F l o o r
` T y s o n s , V i r g i n i a 2 2 1 8 2
` J i m @ c a r m i c h a e l i p . c o m
` ( 7 0 3 ) 6 4 6 - 9 2 5 5
`
`P T A B J U D G E S :
` J O H N D . H A M A N N
` K E V I N C . T R O C K
` S T A C Y B . M A G O L I E S
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` JUDGE HAMANN: This is a case 2018
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`IPR 2019-00820, Apple Inc. vs. MPH Technology's Oy. I'm
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`Judge Hamann. Also on the panel is Judge Margolies and
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`Trock. I'd like to begin with introductions of the
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`parties.
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` Who is on the line on behalf of Petitioner,
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`please?
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` MR. O'BRIEN: Thank you, Your Honor. This
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`is David O'Brien for Petitioner, Apple, Inc. With me is
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`my colleague, Hong Shi.
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` JUDGE HAMANN: And for the patent owner,
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`who is on the line, please?
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` MR. CARMICHAEL: Hello, Judge Hamann. This
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`is James Carmichael for patent owner MPH.
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` JUDGE HAMANN: Thank you. And did any of
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`the parties arrange for a court reporter?
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` MR. O'BRIEN: We did, Your Honor, Apple
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`that is, and the court reporter is on the line as we
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`speak.
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` JUDGE HAMANN: Thank you. Let me suggest
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`that when it is ready, a copy of any transcript of this
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`call gets submitted in these cases.
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` MR. O'BRIEN: Certainly, Your Honor. Would
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`you like that by email or should we file it in the case
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`as an exhibit?
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` JUDGE HAMANN: That's a good point. I
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`can't recall whether I've got it as a paper exhibit
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`before. It shouldn't be by email. Let me get back to
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`you whether it would be paper exhibit. I think I'll do
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`that at the end of the call. But usually a copy should
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`be sent to the board.
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` With that, obviously the purpose of this
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`call relates to the remand of these cases and potential
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`procedure to proceed at this point. I know from my
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`understanding the email that was sent to the board the
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`parties said met and conferred. I don't know if they
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`reached any agreement or if they're still in
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`disagreement of this new relation that we may need to
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`decide.
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` Let me begin with Petitioner and let you
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`address that.
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` MR. O'BRIEN: Certainly, Your Honor. Yes,
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`you're correct, we've actually met and conferred in
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`person, which is something that we don't do too
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`frequently in this practice.
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` But unfortunately, we have not reached
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`agreement. We've, I think exchanged views on the topic.
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`I think the upshot, and Mr. Carmichael can supplement
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`and add as needed, but I think our perspective is that
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`some process and procedure are due. I believe that
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`MPH's perspective is that the board can simply proceed
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`to a final decision without hearing from the parties.
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` We did go through in our meet and confer
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`each of the 11 factors or 11 questions that I think you
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`might ask us during this hearing.
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` And in those cases, I think we had some
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`positions and I believe the other party's position is,
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`since no further interaction in their view is required,
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`the answer is that all the questions are moot.
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` With that, I can go into sort of our
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`position. But I think that's the -- that's setting the
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`table for where we are.
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` JUDGE HAMANN: Thanks, Mr. O'Brien. And
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`certainly patent owner will be able to respond before
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`that. But let's step through what Petitioner's proposal
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`will be and the reason for that. And I'll note that we
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`obviously are aware of it appears the statutory claims
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`were filed in this case.
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` So what's left, typically the case, how
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`that impacts for both cases, but how that impacts
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`Petitioner's proposal would be helpful to understand.
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` MR. O'BRIEN: And I'll walk through that,
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`Your Honor.
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` So these cases, they do return to the board
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`after the patentability determinations were vacated, of
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`course. That was due to the federal circuit's view that
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`there was an erroneous construction of the term
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`"encrypted" as it's applied to the phrase, the request
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`message and or reply message.
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` That term or construct appears in Claim 1
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`of the 810 from which all the Claims in issue here
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`depends and it also appears in Claim 4 of which is the
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`sole claim in the issue in that proceeding.
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` That claim construction error was not just
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`a claim construction. It was disputed by the parties
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`and the board picked the wrong answer. Rather, the
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`federal circuit found that the board had created a
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`dispute during the oral hearing as to the meeting as
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`encrypted.
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` That therefore, in our view, the erroneous
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`construction was also a sua sponte construction without
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`notice and without opportunity to be heard and in that
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`sense classic due process and ATA violation.
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` As you mentioned, the patent owner has
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`filed a determinable claim here, that's for Claims 1
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`through 3 of the 810 and for Claim 4 of the 581, the
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`sole remaining claim in that trial.
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` So we believe, and I'll start with the 581
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`because it's perhaps the simplest.
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` For the 581 under 4273(b)(2) the disclaimer
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`is to be construed as a request for adverse judgment.
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` We do understand that, based on the meet
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`and confer, the patent owner has a different view on
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`that and I'm happy to address if they continue to
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`articulate that contrary view.
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` Moving to the 810 under SOP 9, given the
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`erroneous claim construction that was adopted sua
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`sponte, we believe that SOP 9 supports supplemental
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`briefing evidence and oral argument. So we also feel
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`that we may be able to pare that back a little bit.
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` And absent a need by either party, and that
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`could come up in this call, I suppose, but a need by
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`either party to expressly construe a term consistent
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`with the federal circuit's opinion, I can tentatively
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`suggest that we could forego supplemental declarations
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`and what would then be depositions on those
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`declarations.
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` But I'll hold sort of further thoughts on
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`that point. I'll certainly respond to questions, but on
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`that point until the patent owner lays out whether it
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`thinks there's an issue there.
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` We do understand from the meet and confer
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`that the patent owner had a much more aggressive
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`position on this issue. They believe, if I paraphrase
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`or understand correctly, that the disclaimer obviates
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`any further -- the need for any further proceeding
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`before the board, before Your Honor.
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` In our view, the disclaimer actually raises
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`even more issues. So first, it's our position that,
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`even though the patent owner concedes on patentability
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`of Claims 1 through 3, the limitations of those claims,
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`including the very phrase "request, message and/or reply
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`message" being encrypted, that limitation, that's the
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`limitation that the board erroneously construed sua
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`sponte, those limitations remain scope defining
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`limitations of Claims 4 through 6, which themselves
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`remain in trial on remand. So that's the first point.
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` Second point, we feel that the implications
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`of the disclaimer as a concession of patentability
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`themselves require briefing. So rather than making this
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`a do-not-pass-go, do-not-collect-$200 sort of event, we
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`believe that the disclaimer requires briefing.
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` We also believe --
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` JUDGE HAMANN: This is Judge Hamann. If
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`you could expand on that, I'm trying to understand what
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`aspects of the claim require additional briefing.
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` I understand that maybe the question for
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`the Reg 20 case whether it should be a adverse judgment
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`or not. Is that the same aspect for the 19 case or is
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`there something in addition?
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` MR. O'BRIEN: Twofold. I think you're
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`right in the 581 and I'm sort of getting ahead of the
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`patent owner here a little bit. But our understanding
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`is they view the -- deem to be adverse -- the request
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`for adverse judgment as something that is not in play.
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`So certainly that issue may be in play.
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` Now, with respect to the 810, there are
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`additional provisions of the -- there are additional
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`provisions of 4273 in addition to the B2 provisions.
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`The B3 provision provides that a concession of
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`unpatentability of the contested subject matter shall be
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`viewed as a request for an adverse judgement. We view
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`the disclaimer of Claims 1 through 3 as such.
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` If you'll recall, Your Honors, during
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`the -- the prosecution of the 810 -- application that
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`resulted in the 810, the points of novelty or the points
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`of novelty do not reside in Claims 4 through 6, rather
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`it resided in Claim 1.
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` So the concession as to Claims 1 through 3
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`is really a tactical move here, we feel, by the patent
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`owner to avoid any discussion of the issue in the case.
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`And the issue in the case is whether the grounds in
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`trial, as applied to the properly construed scope of
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`Claims 4 through 6, render them obvious.
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` And simply short circuiting that by saying
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`nothing to see here because we've disclaimed those
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`claims, we believe constitutes a concession as to
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`unpatentability, particularly in view of the point of
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`novelty residing within the claims that they've
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`disclaimed.
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` But I don't want to get ahead of ourselves
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`in terms of orally briefing the issues. But I think
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`that is certainly something that we feel would be in
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`issue here and certainly is -- is -- is an issue that is
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`created at this juncture by the patent owner filing a
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`disclaimer.
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` I don't think it's -- if we had received a
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`disclaimer -- if a disclaimer had been recorded in
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`this -- against the 810 patent right after institution
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`of trial, I don't believe there would be any question
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`amongst any person on this call that there would be
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`briefing during the course of trial as to the legal
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`import of that disclaimer as to additional claims that
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`depended from the disclaimed claims.
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` We're really no different here. The
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`sequence happened to have taken a circuitous path
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`through federal circuit appeal and on the projectory to
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`return to Your Honor.
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` But it is a new question now that patent
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`owner has introduced into this mix. And I know they
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`will argue that it simplifies. We would argue the
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`contrary and we should -- we believe we should be
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`entitled to brief on that.
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` Does that answer your question, Your Honor?
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` JUDGE HAMANN: It does. I just want to
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`clarify one thing, if I could. This is Judge Hamann.
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` I understand, I think, Petitioner is, at a
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`high level, arguing the mechanics if there is additional
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`briefing as to time and stuff like that. It seems
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`that there may be one area that Petitioner certainly
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`wants briefing that is related to the effect, a better
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`term, of the statutory disclaimers.
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` Is Petitioner also suggesting that it needs
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`briefing as to instruction of the federal circuit report
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`and how that impacts?
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` MR. O'BRIEN: I think we do, Your Honor. I
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`think we feel that we need to brief and, indeed, argue
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`the implications of the federal circuit vacation and
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`remand as to the erroneous claim construction.
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` And I say that because I do note that with
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`respect and, wait for new counsel on this, but I would
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`say reviewing the record, and particularly the oral
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`hearing, the panel was extremely uninterested, I guess I
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`would say, in the issues surrounding this, and we would
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`expect that for due process to be recorded, we would be
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`able to apply the construction that the federal circuit
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`has corrected and we would be able to argue the
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`implications to that.
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` As I said before, I think that the nature
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`of that construction is such that the record -- the
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`written record would be adequate in terms of underlying
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`evidentiary support. I say that tentatively, because
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`it's entirely possible that the other party might decide
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`to run with a new issue there. But if they -- assuming
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`they do not, I think that we would feel comfortable
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`briefing for Your Honors based on the application of
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`a -- of the term "encrypted" in a way that does not
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`require the entirety of any agate message or other
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`networking construct be encrypted.
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` I think our expert testimony and the other
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`evidence of record would be sufficient to be referred to
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`in our briefing.
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` You know, that said, if there was a
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`finer -- if -- if -- depending on how the case proceeded
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`on remand or was advocated on this call, if there was a
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`spector of an intent to seek an express claim
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`construction in the record, I think I would want to
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`have -- for purposes of appeal, I would want to have the
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`opportunity to read that express construction on the
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`art.
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` And I would expect that we would -- that we
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`would have a short supplemental deck to do that. I
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`haven't seen an implication that we would need that, but
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`that's why I'm, I guess, maybe hedging a little bit
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`there.
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` Does that answer your question, Your Honor?
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` JUDGE HAMANN: Thanks, Mr. O'Brien. Let me
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`turn to patent owner.
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` Mr. Carmichael, what is the patent owner's
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`perspective on this?
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` MR. CARMICHAEL: Thank you, Judge Hamann.
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` Petitioner is right about one thing, which
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`is that our issue is that the disclaimers have
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`simplified and, indeed, eliminated need for any further
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`proceedings at the PTO, other than in the 581, the issue
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`on the certificate of patentability for the affirmed
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`claims and for the 810 following the federal circuit's
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`directions in Footnote 4 of its decision to consider the
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`same issue that it already affirmed in the 581, which is
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`that those dependent claims could fail to account for
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`the intervening claim limitations of Claim 3 because
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`Petitioner forgot, or whatever, in the grounds the -- a
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`hone-in reference, which is apparently their only basis
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`to reach those intervening claim limitations.
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` If I may turn first to the 581. The
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`disclaimer of our remanded claims in that case is not a
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`request for adverse judgment under 42.73(b), because
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`under (b)(2) there are still remaining claims in the
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`trial. The PTAB must still issue a trial certificate
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`confirming that the claims that were affirmed by the
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`federal circuit. So those claims remain in the trial
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`and it's not like an instance where we're requesting
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`adverse judgment. We're actually requesting the
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`opposite. We're requesting a -- a judgment just giving
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`effect to the affirmants of the federal circuit and a
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`trial certificate confirming the affirmed claims. A
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`minute ago Petitioner -- so that's 42.73(b)(2).
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` A minute ago Petitioner appeared to say
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`also the disclaimers might somehow qualify under
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`42.73(b)(3) as a concession of unpatentability of the
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`contested subject matter. But the contested subject
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`matter, of course, includes all of the contested subject
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`matter. And the affirmed claims by the federal circuit
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`were still part of the contested subject matter and,
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`obviously, we're not conceding unpatentability of that
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`contested subject matter and any of that.
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` A disclaimer is never a concession of
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`unpatentability. It's not in this case. The claims
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`should be treated as if they never existed. No
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`concession of patentability. And even if there were
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`somehow an implied concession of patentability, which
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`there is not, it would not be a concession, quote, of
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`the contested subject matter under 42.73(b)(3) because
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`the contested subject matter includes claims that are
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`still in the trial.
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` JUDGE HAMANN: Thank you. Did you say
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`something further, Mr. Carmichael?
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` MR. CARMICHAEL: I think that's probably it
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`for 581.
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` JUDGE HAMANN: As the description to the
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`8 --
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` THE REPORTER: Hold on. Judge Hamann,
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`could you please speak up a little bit? I'm having a
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`really hard time hearing you.
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` JUDGE HAMANN: Thanks for letting me know
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`that.
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` The 819 patent, Mr. Carmichael, why is
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`briefing as to construction of the encrypted term not
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`needed?
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` MR. CARMICHAEL: Yeah. Thank you very
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`much. Thank you very much, Judge Hamann for that
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`question.
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` The Petitioner has referred to the PTAB's
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`SOP 9, which itself refers to PBC broadbrand, IPR
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`201300342, paper 55, where a remand due to an erroneous
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`claim construction did not merit any further briefing
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`because the issues remaining are not related to the
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`claim construction. And that is the case here for two
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`reasons.
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` One, the petition did not make any
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`construction dependent argument in the grounds for
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`Claims 4 through 6 about the intervening limitations of
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`Claim 3. In fact, it failed entirely to address the
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`intervening limitations of Claim 3.
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` And in our patent owner response, that was
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`the only issue we raised about Claims 4 through 6 is the
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`petition had utterly failed, I guess they overlooked it,
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`to address the intervening claim limitations from Claim
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`3.
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` So it's a total lack of addressing any
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`limitations and it has nothing to do with, you know,
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`what the -- what the claim interpretation of Claim 1 is.
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`It has only to do with the fact that the Petitioner
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`simply failed to address in any way, under any
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`interpretation, the intervening claims.
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` I understand why they're interested in
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`the -- in trying to undo that error. But they can't
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`because under SOP 9 and PCP broadband, the claim
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`interpretation has nothing to do with the issues that
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`were already fully tried before the PTAB.
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` All that's left for the PTAB to do is issue
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`a decision like it did in the 581 and affirmed by the
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`federal circuit, that a complete failure to address the
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`limitation of the intervening claims by failing to
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`include a hone-in, for example, in the grounds is -- is
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`sufficient for finding patentability, just like the
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`federal circuit confirmed in the 581 already.
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` JUDGE HAMANN: Thank you, Mr. Carmichael.
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` This is Judge Hamann. I want to go back to
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`Mr. O'Brien, but I want to try to be concise with this.
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` There may be aspects of what you want to
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`respond to that Mr. Carmichael raised, which is fine.
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`But there's certainly a question I have, Mr. O'Brien, is
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`Footnote 4 from the federal circuit's decision notes
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`that we should, you know, consider the arguments as to
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`Claims 4 through 6 and as in relation to a hone-in, for
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`example.
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` To the extent we considered that and find
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`that sufficient for purposes, why would -- sufficient
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`for purposes of resolving this, why would additional
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`briefing as to the construction for encrypted be
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`warranted?
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` MR. O'BRIEN: Understood, Your Honor. And
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`I'll circle back to some of the other points you
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`suggested, some of the other points in patent
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`interpretation. But we go directly to the Footnote 4
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`question you raised. We read Footnote 4 differently, I
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`guess I could say.
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` First off, the federal circuit doesn't
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`direct the board to do anything. Certainly it
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`indicates, and I think the patent owner neglects this,
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`the board didn't reach this issue. So the board -- the
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`prior panel didn't reach the issue, because it found
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`erroneously, I would add, that the point that Apple had
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`not demonstrated that Claim 1 was unpatentable, in the
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`810 patent, the 819 proceeding. Because of that, the
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`footnote goes on, they vacated the portions of the
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`decision that were based on the construction of an
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`encrypted request for reply message. And the board
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`should decide whether to consider this issue on remand.
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`The board did not -- the federal circuit did not direct
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`the board or this panel to do anything.
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` So we agree with the federal circuit that
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`the board didn't reach this issue. As I said, not only
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`was the board supremely uninterested in the underlying
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`issue at oral hearing, but the final written decision in
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`this proceeding is utterly devoid of any analysis,
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`findings, or consideration of Petitioner's arguments in
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`evidence, which were unrebutted entirely and unopposed,
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`I might add. So we believe this is a live issue.
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` I believe patent owner suggested that there
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`were affirmed -- there were claims whose patentability
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`was affirmed in the 810. That simply is not the case.
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` But back to the Footnote 4 question. In
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`addition to the point of how this returns to the panel,
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`this is certainly up to this panel what to do from here.
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` I don't think the federal circuit has
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`directed you one way or another how it wants you to
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`proceed. It is within your power to decide certainly.
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` We would, I guess, suggest that it would be
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`rather odd if we were to find ourselves back at the
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`federal circuit and ultimately back before Your Honors
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`on remand once again because of some erroneous
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`construction of, in this case, I suppose the reply
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`message term that was adopted sua sponte without
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`briefing, without notice, and without opportunity to be
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`heard.
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` So I think there's a risk that we just
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`rinse and repeat on this absent briefing and I do
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`believe, you know, a relatively brief and targeted oral
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`argument is implicated as well. We believe that in that
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`briefing, and I suppose ultimately in y'all's decision,
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`that the panel should consider the application of the
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`ground in the trial, that's the Ishiyama and Murakawa
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`grounds, or in the Claims 6, further in view of Forslow.
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`The application of those references to the properly
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`construed claims, number one. And you should also
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`consider, with the benefit of briefing, the legal effect
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`of patent owner's disclaimer.
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` I suppose each of the cases, but I think
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`we're focusing specifically on the 810 at this point. I
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`would ask, I suppose, why it is the patent owner wants
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`to short circuit these issues with sort of a Jedi mind
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`trick of there's nothing to see here, pay no attention
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`to the disclaimed and conceded unpatentability of the
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`very claim term limitations that are really at the core
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`of the dispute as to the claims that remain in trial,
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`Claims 4 through 6. I don't think there's any -- I'm
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`sorry, Your Honor, you were going to say?
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` JUDGE HAMANN: I certainly -- you know,
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`some of this I think you mentioned before and I don't
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`want to cut you off. But I think it would be helpful as
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`part of these questions in the SOP 9 if, at some point,
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`I think it would be helpful to understand to the extent
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`you think there should be more briefing, how many pages,
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`how should it procedurally happen, should there be an
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`opening, response of parties, timing, those kind of
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`questions, I think, if you could turn to that, that
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`would be helpful, too.
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` MR. O'BRIEN: Certainly. I'm happy to do
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`so. Sorry to drone on.
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` So I'll just go through the list of 11
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`questions and give you our answers.
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` Does that sound like an efficient way to
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`handle it?
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` JUDGE HAMANN: I think what may be a more
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`sufficient way to handle that is after this call, if we
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`could have -- have the parties submit either joint
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`proposals or documents or separate documents listing
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`their brief proposals as to if there's briefing,
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`answering the questions, you know, as to how the
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`procedure would be, the length, whether it should be
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`evidence and whatnot. That, I think, would probably be
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`the most efficient way.
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` MR. O'BRIEN: I misunderstood. I thought
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`you were asking for some feedback on some particular
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`issues there. So I'm happy to give you feedback or do
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`it after this call.
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` JUDGE HAMANN: Yeah, I was starting to
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`actually ask that. I think one of my colleagues, just I
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`think it has merit and we'll firm that up at the end of
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`the call. But as to the mechanics, whether as to the
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`briefing, I thought we're deciding just by asking for an
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`understanding of the party's proposal there should be
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`additional briefing. But I'll get the particulars of
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`that at the end.
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` I think I understand the party's positions.
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`But if you want to -- if there's anything left to
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`respond to, to describe, please feel free, Mr. O'Brien.
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` MR. O'BRIEN: I think it's a relatively
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`minor point and Your Honors probably have already sort
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`of decoded it.
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` But I believe Mr. Carmichael suggested that
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`there was some status in which the 810 patent, the 819
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`proceeding resided in which there were claims still in
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`play because a certificate of correction needs to be
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`issued and that somehow opted out.
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` I would commend to Your Honors, frankly,
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`another case that we are involved in for Apple as well.
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`Apple V Corephotonics, IPR 20181146, paper 45, where
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`this precise issue was raised and, I believe it was
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`email correspondence rather than a opposing party email
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`interactions with the board rather than arose in a
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`telephone conference.
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` But the board issued an order, I believe
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`that's paper 45, which is directly contrary to
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`Mr. Carmichael's point on that.
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` JUDGE HAMANN: Well, if there's nothing
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`further, let me just --
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` MR. CARMICHAEL: There is, if I may
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`respond.
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` JUDGE HAMANN: Briefly, Mr. Carmichael, to
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`the extent it's nothing new, it's responding to
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`something raised, please go ahead.
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` MR. CARMICHAEL: Yes, it is responding to
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`what Petitioner just said.
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` First of all, the Petitioner responded to
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`certificate of correction. I believe he misspoke.
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`There's no certificate of correction involved in this
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`case. What is remaining in the 581 proceeding is for
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`the PTAB to issue a trial certificate putting into
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`effect the federal circuit's affirmants of the board's
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`findings of patentability of the remaining claims.
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` And secondly, on the 810, if I heard
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`correctly, Petitioner may have just implied that they
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`wanted to argue about further addressing a hone-in.
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`That would be inappropriate under SASP (phonetic),
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`because the petition limits the grounds which is what
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`the board found in the 581 and the federal circuit
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`affirmed. They can't try to bring in new references
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`that weren't part of a grounds against 810 Claims 4
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`through 6. That's a nonstarter. There's no point in
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`even entertaining that with further briefing.
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` And next on the 810, Petitioner addressed
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`federal circuit Footnote 4, which says the board didn't
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`reach this issue. That's exactly right. And this is
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`the only issue that remains. It was fully briefed and
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`Petitioner today has not indicated any possible way that
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`claim construction decisions in the federal circuit
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`would affect what's in Footnote 4, which is the complete
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`failure of the petition to address the intervening
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`limitations of Claim 3 in the grounds applied to Claims
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`4 through 6.
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` There's no reason to try to complicate this
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`further. That issue was fully tried even if the
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`Petitioner believes that the APJs were insufficiently
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`interested during the oral hearing about that issue. It
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`doesn't mean it wasn't considered and it certainly
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`doesn't mean it wasn't fully tried. It was fully tried
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`and it has nothing to do with the claim construction.
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` So under SOP 9 and PCP broadband cited
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`therein, there should not be any further briefing or
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`evidence.
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` And I want to make the panel aware that the
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`litigation is stayed for these proceedings. And
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`obviously Petitioner as the accused infringer in the
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`litigation, might like to extend that stay and delay
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`judgment.
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` But there is no reason for all of these
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`further complicated proceedings that are proposed now by
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`Petitioner because it's the only remaining issue has
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`been fully tried and it just needs to be decided
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`pursuant to Footnote 4 of the federal circuit decision.
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`Thank you.
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`
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